TaxTMI 
TaxTMI 
2025 (3) TMI 989
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....e Appellant is a private limited company engaged in the business of manufacturing and distribution of moulded plastic kitchenware products, carrying out manufacturing activities from its plant located at Dehradun. The Appellant filed its return of income on 30.11.2015 declaring total income of INR 97, 70, 39, 530. Since the Appellant company, during the impugned financial year, had entered into international transactions with its Associated Enterprises ("AEs"), covered under section 92CA of the Act, AO referred the matter to the Learned Transfer Pricing Officer ("TPO") for determination of the Arm's Length Price ("ALP") of the international transactions. As per the Transfer Pricing documentation, the Appellant has earned an operating margin of 21.94%. On the other hand, the comparables have earned a working capital adjusted margin of 3.77% (35th Percentile) to 7.82% (65th Percentile) with a median of 5.90%. Hence, the transactions of Tupperware India have been claimed to be at arm's length. 3. During the course of the TP assessment proceedings, the TPO requested for various information/ documents which were filed time to time. Subsequently, the TPO issued show cause notice dated....
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....the directions of Hon'ble Dispute Resolution Panel ("Hon'ble DRP") is bad in law and void ab-initio as it not in conformity with provisions of section 144C of the Act. 2. That on the facts and circumstances of the case and in law, the Ld. AO erred in passing the impugned assessment order whereby making an adjustment of Advertisement, Marketing and Promotion ("AMP") both on substantive as well as on protective basis which is not in consonance with provisions of the Act. 3. That on the facts and circumstances of the case and in law, the Ld. AO erred in following the directions of the Hon'ble DRP and thereby erred in assessing the returned income of the Appellant of INR 97, 70, 39, 530 at INR 1, 53, 55, 51, 410. TRANSFER PRICING (TP) GROUNDS: 4. That the Hon'ble DRP/Ld. AO/ the Deputy Commissioner of Income Tax, Transfer Pricing Officer-3(2) (1) ("Ld. TPO") have erred in proposing an addition of INR 38, 83, 59, 955 holding that the Appellant's international transaction does not satisfy the arm's length principle envisaged under the Act. 5. That the Hon'ble DRP/Ld. AO/Ld. TPO have erred in undertaking adjustment o....
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....statutory mandate; and 6.3. arbitrarily applying a mark-up of 19.12% on the alleged AMP expenses. 7. That the Hon'ble DRP/Ld. AO/Ld. TPO have erred in undertaking adjustment, on a without prejudice basis, on account of payment of royalty by rejecting the transfer pricing documentation maintained by the Appellant and determining arm's length royalty rate as 2% of the sales. In doing so, Hon'ble DRP/Ld. AO/Ld. TPO have erred: 7.1. in assuming that 'no benefit' has been conferred on the Appellant from the use of trademarks and know-how for which royalty was paid by the Appellant. 7.2. in not giving due cognizance to the information and documents submitted by the Appellant during the course of proceedings; 7.3. by disregarding the economic analysis performed by the Appellant, thereby rejecting the comparable agreements selected by the Appellant in the transfer pricing documentation; and 7.4. by arbitrarily determining the royalty rate of 2% based on the fresh search undertaken by the Ld. TPO during the course of proceedings by adopting the methodology similar to that adopted by the Appellant in the transfer prici....
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....without appreciating that no disallowance under section 40(a)(i) of the Act can be applied in the facts of the present case in view of the provisions of the India- USA DTAA. 13. That on the facts and circumstances of the case, and in law, the Hon'ble DRP/Ld. AO erred in disregarding the submission of the Appellant that the amount in question are pure reimbursements of expenses based upon proper allocation key and without any mark up. While doing so, the Hon'ble DRP has disregarded the third party invoices and allocation methodology. 14. Without prejudice to Ground No. 11 to 13, that on the facts and circumstances of the case, and in law, the Hon'ble DRP/Ld. AO failed to appreciate that the amounts in question are held not liable to be taxed in the hands of Dart for the year under consideration, thereby disallowance under section 40(a)(i) of the Act unwarranted and liable to be deleted. 15. That on the facts and circumstances of the case and in law, the Ld. AO erred in not granting the MAT credit available to the Appellant while computing the tax liability. 16. That on the facts and circumstances of the case and in law, the Ld....
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....ntained by the Appellant. 10. He furthermore, submitted that AO/TPO have brought no record or any material evidence to establish how the expenditure incurred by the Appellant had contributed to the promotion of the brand name. The Ld. Counsel relied heavily upon the decision of Hon'ble Delhi High Court in case of Maruti Suzuki India Ltd Vs CIT (ITA 110/2014 & ITA 710/2015), in which, accordingly to him, the Hon'ble High Court, has cast the onus to prove an international transaction arising from AMP expense, upon the Revenue authorities. It is contended that the Hon'ble High Court has held that the onus to demonstrate that an AMP expense incurred by a taxpayer constitutes an international transaction would rest upon the Revenue authorities. The existence of an international transaction would have to be established by the Revenue authorities without application of bright line test, based upon documentary evidence of an arrangement between the Appellant and its AEs. The relevant extracts of the Hon'ble High Court decision in this regard, as relied by Ld. Counsel is reproduced below: "..the very existence of an international transaction cannot be presumed by assigning so....
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....orrect. It is contended that the Hon'ble High Court further has held that the taxpayers do not undertake advertisement with a purpose to increase the value of brand but to increase sale and thereby earn higher profits. In this respect, the relevant part of decision as relied is reproduced as under: "105. There is a line of demarcation between development and exploitation. Development of a trademark or goodwill takes place over a passage of time and is a slow ongoing process. In cases of well recognised or known trademarks, the said trademark is already recognised. Expenditures incurred for promoting product(s) with a trademark is for exploitation of the trademark rather than development of its value. A trademark is a market place device by which the consumers identify the goods and services and their source. In the context of trademark, the said mark symbolises the goodwill or the likelihood that the consumers will make future purchases of the same goods or services. Value of the brand also would depend upon and is attributable to intangibles other than trademark. It refers to infrastructure, know-how, ability to compete with the established market leaders. Brand value, th....
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....y profit earned on account of AMP expenses incurred by the Appellant by way of economic exploitation of the trademark/ brand in India already stands captured in the profit and loss account for the Appellant company and the same has been duly offered to tax and hence there was no logic to compute or make any Transfer Pricing Adjustment on this account. It is submitted by ld. Counsel that in the case of an entrepreneur, once all transactions are at arm's length, there is no need to test the AMP expense separately. As per the contentions of the Appellant, the TP study demonstrates that the international transactions have been undertaken at arm's length. Comparing individual element cost, i.e., of AMP expenses would amount to comparison or reconstruction of profit and loss account of Tupperware India to make it identical - cost-to-cost, to that of the comparable companies which is not the intent of transfer pricing regulations. The Appellant functions as an entrepreneur, once payment of royalty as well as import of raw material is demonstrated to have been undertaken at arm's length, the issue of AMP expense would be a misnomer. 15. It is next contended for the assessee that inciden....
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....us the assessee will not press this ground. However, leave may be granted to the assessee to argue this issue in the subsequent assessment years if so required. We have no objection and allow the assessee to argue on this issue in future." 18. It is relevant here to understand as to how the issue was dealt by the DRP, and for sake of convenience the relevant part of the DRP order is reproduced below; ""DRP Directions: 2.21 This is a legacy issue arising since AY 2013-14, and the DRP has confirmed the proposed adjustment. 2.2.2 The assessee is manufacturer and distributor of molded plastic kitchenware products under the brand name of the AE, i.e. "Tupperware". The assessee has objected to treatment of AMP expenses as International transaction and adjustment of ALP on this count. This issue has been recently examined in detail by the ITAT as also Hon'ble Delhi High Court in Sony Ericsson Mobile Co Pvt. Limited (ITA 16/2014- [2015] 55 taxmann.com 240 (Delhi)) and other cases and such transactions have been held to be International transactions and subject to TP provisions. The TPO has held it to be an International transaction in view of clear and una....
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....motional activities apart from various functional innovations etc, clearly point to the existence of the AMP transaction. The assessee had submitted that the International Transaction because the AMP spend could not be viewed as such in the absence of agreement/arrangement/understanding to incur AMP expenses or excessively incur AMP expenses, AMP expenditure incurred by the assessee does not result in an international transaction. Mere absence of a formal agreement doesn't help the case of the assessee, whereas the conduct has the transaction written all across. In such a scenario, it does not help the case of the assessee as the assessee indeed undertakes the AMP action resulting in promotion of the brand. The TPO concluded that the Assessee incurs. excessive AMP expenditure; by this act the assessee renders a service to the AE. Such service is in the form an international transaction and calls for a higher remuneration on the part of the Assessee. The absence of adequate compensation is also concluded by the TPO. The fact that year after year the assessee has been carrying out high intensity of AMP activities is itself proof that there exists an arrangement between the Assess....
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....of the functions pertaining to the intangibles and the increase in volumes/turnover. The assessee furnished a set of comparables to the TPO for examining under TNMM. The TPO has accepted the same for comparability analysis. The panel upholds the action of the TPO in the above terms subject to the final direction. 2.2.9 As regards the contention of the assessee that the said AMP is not an international transaction, while in Sony Ericsson Mobile Communications India (P.) Ltd. v. Commissioner of Income-tax -III [2015] 55 taxmann.com 240 (Delhi) the Hon'ble Delhi High Court has disapproved the bright line test for finding out the cost/value of international transaction, which is the first variable under the TP provisions, the Hon'ble Court has held that the TPO has authority to examine and determine the international transaction of AMP spend. The Hon'ble High Court has observed and held as under in this regard: "3..... the assessed were engaged in distribution and marketing of imported and branded products, manufactured and sold to them by the foreign AEs resident abroad. Intangible rights in the brandname/ trademark/trade-name were owned by the f....
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....ons of the TPO, as considered vital by the DRP to sustain order of TPO to hold the AMP expenditure to be international transaction, have been culled out in para 2.2.10 of the order of DRP and same are also worthy to be reproduced herein below:- "2.2.10 The TPO, in the TP order, has made detailed discussion on the treatment of the AMP spend as international transactions basis facts of the case and the legal position related thereto, not repeated for sake of brevity. The TPO has made certain pertinent and noteworthy observations, which inter alia are, * The taxpayer had incurred INR 373427630/- on account of AMP expenditure which represents 7.85% of its sales, * The taxpayer does not have any agreements for use of trademarks and patent owned by the parent entity. The said trademarks/formulations (intellectual property) was owned by the taxpayer's US based AE ie. M/s Tupperware Brands Corporation US. This implied that third parties could be granted licenses to use the trademarks. Therefore, it is clear that any creation of marketing intangible by the taxpayer could be utilized by third party manufacturers licensed by M/s Tupperware Brands Corporation US ....
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....ts etc is owned by Tupperware Group As per the information available from the website of Tupperware India, it is seen that the brand Tupperware is always displayed. It is also seen that the AEs undertake functions relating to formulation of marketing strategy and brand building for their global operations. The Tupperware Group also has a separate sales and marketing team that is responsible for formulation of marketing strategy and distribution of products in the Indian market. Therefore, it appears that the AEs bear significant business and entrepreneurial risks of product acceptability in the market. On the other hand, the Assessee does not own any interest in the intangible and is only a manufacturer and seller of "Tupperware" products in India. * 12.2 Tupperware has taken worldwide initiatives to protect its brand name. The taxpayer has further added that the AE(s) has knowledge and resources required for legal protection of the brands and protecting the brand from infringement is extremely critical for the business and the registration of brands with AE has benefitted the Taxpayer since it is absolved of the responsibility of protection of the brands * The ab....
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....E for which it should have been compensated * The taxpayer is not only creating marketing intangibles for the AEs but also maintaining and expanding the scope of the existing brand owned by AE * In an independent party scenario, the entity developing the brand would seek the remuneration for the efforts and risks being undertaken for developing the brand. Since the taxpayer has not denied the fact that the brand has been developed in India with its own efforts, in a third party scenario the risks and rewards for the brand development should also lie with the taxpayer. 2.2.11 To benchmark the transaction related to AMP spend and to determine the cost of AMP spend, the TPO adopted segregated approach. The TPO has, inter alia, observed as under * In this case, the assessee and comparables are undertaking different levels of AMP functions. The difference in the routine AMP spend of assessee and comparables would not have similar effect on their respective margins. In the absence of data related to value of brand, value of marketing intangible created and incidental benefits to assessee and AE, ALP of non-routine AMP spend cannot be accurately calcula....
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....ns to create some marketing intangibles benefiting the brand of AE in the other markets or to other customers where the similar products are sold by the AE or any of its affiliates. However, no such exercise is done by TPO and the DRP merely relied the order of TPO, on first principles as to in which cases AMP as separate transaction should be examined for its ALP. We are of considered view that the AMP expenses cannot be alleged to be excessive or for creating any brand for AE or adding to its worth on the basis of theoretical principles without establishing on the basis of material and evidences that expenditure does not commensurate to the functions carried out and risk assumed by the assessee to its manufacturing or distribution business. 22. We are of considered view that AMP necessarily does not result in brand building. The Hon'ble High Court in the Sony Ericsson Mobile Communications India (P.) Ltd. case (supra), vide para 106 as reproduced earlier in para 12 has held that advertisement may not be the only tool for brand building. Hence, it cannot be held that AMP necessarily leads to brand building. 23. Thus in our considered view ld. Tax authorities should establish....
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....ight to see that their affiliates in developing markets do not resort to any selling or marketing policy which is not according to the standards set. It has taken years of strategic costs for the foreign brand to create the brand so requiring Indian entity to follow the minimum of standards cannot be equated with a concert action to build the brand further. It is incorrect to say that the assessee is just a transit point of the products towards the end user and the assessee is not subject to the related risks of a brand owner producer. Therefore, the assessee should be compensated for the AMP expenses. In the case before us, the assessee is not merely a mediator or an intermediary, but, admittedly, has its own manufacturing activity. Therefore, even if the brand is owned by the foreign AE, the assessee carries a risk of its own in the local market. We find that the ld. tax authorities have repeatedly observed that mere absence of a formally agreement does not help the assessee whereas the 'conduct' has the transaction written all across. 25.2 We are of the considered view that merely on the basis of high intensity of AMP activities no presumption can be drawn so as to impute exi....
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....eans- (a) a transaction between two or more AEs, either or both of whom are non-resident (b) the transaction is in the nature of purchase, sale or lease of tangible or intangible property or provision of service or lending or borrowing money or any other transaction having a bearing on the profits, incomes or losses of such enterprises, and (c) shall include a mutual agreement or arrangement between two or more AEs for allocation or apportionment or contribution to the any cost or expenses incurred or to be incurred in connection with the benefit, service or facility provided or to be provided to one or more of such enterprises. ...... 61. The submission of the Revenue in this regard is: "The mere fact that the service or benefit has been provided by one party to the other would by itself constitute a transaction irrespective of whether the consideration for the same has been paid or remains payable or there is a mutual agreement to not charge any compensation for the service or benefit." Even if the word 'transaction' is given its widest connotation, and need not involve any transfer of money or a written agreement as suggested ....
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....Ericsson Mobile Communications India (P.) Ltd. (supra) expressly negatived the use of the BLT both as forming the base and determining if there is an international transaction and secondly for the purpose of determining the ALP. Once BLT is negatived, there is no basis on which it can be said in the present case that there is an international transaction as a result of the AMP expenses incurred by MSIL. Although the Revenue seems to contend that the BLT was used only to arrive at the quantum of the TP adjustment, the order of the TPO in the present case proceeds on the basis that an international transaction can be inferred only because the AMP expenses incurred were significantly higher that what was being spent by comparable entities and it was also used for quantifying the amount of the TP adjustment. Consequently, the Court does not agree with the submission of the learned Special counsel for the Revenue that de hors the BLT, which has been rejected in the Sony Ericsson Mobile Communications India(P.) Ltd. (supra) judgment, the existence of an international transaction on account of the incurring of the AMP expenses can be established. .......... 51. The resul....
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....se of Maruti Suzuki India Ltd. (supra) which is a manufacturer, the Hon'ble jurisdictional High Court has passed judgment specific to Distributor as well. Reliance in this regard is placed on the decision of Moet Hennessy India (P.) Ltd. (2023) 146 taxmann.com 551 (Delhi) wherein it was held as under:- "13. We are also unable to agree with submission of the learned counsel for the Revenue that in the judgment of Maruti Suzuki India Ltd. (supra) and Bausch & Lomb Eyecare (India) (P.) Ltd. (supra), the findings of this Court with respect to absence of international transaction emanated from the fact that the assessee therein were a manufacturer in addition to being a seller. 14. The issue with respect to deletion of transfer pricing adjustment on account of AMP expenses, determined on BLT method, by the ITAT is squarely covered by t he decisions of this Court in the case of Maruti Suzuki (supra) and Bausch & Lomb Eyecare (India) (P.) Ltd. (supra). We are, therefore, not inclined to frame any substantial question of law on this issue. The facts and law have been correctly assessed by the ITAT and we therefore, do not find any merits in the appeal and the accordingly,....
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....e of such transaction. The third step would be to determine the ALP by applying one of the five price discovery methods specified in Section 92C. The fourth step would be to compare the price of the transaction that is shown to exist with that of the ALP and make the TP adjustment by substituting the ALP for the contract price. XXX XXX XXX 34. The TP adjustment is not expected to be made by deducing from the difference between the 'excessive' AMP expenditure incurred by the Assessee and the AMP expenditure of a comparable entity that an international transaction exists and then proceed to make the adjustment of the difference in order to determine the value of such AMP expenditure incurred for the AE. 35. It is for the above reason that the BLT has been rejected as a valid method for either determining the existence of international transaction or for the determination of ALP of such transaction. Although, under Section 92B read with Section 92F (v), an international transaction could include an arrangement, understanding or action in concert, this cannot be a matter of inference. There has to be some tangible evidence on record to show that two parties....
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....s of the brand which was more useful to the foreign AE than to help the assessee in procuring its share of market. The AO was, thus, required to establish that the AMP expenses were not for tearing into the local market alone, but, were made at the instance of foreign AE for enhancement and creating a brand value beyond the local market. In the absence of any such facts coming out of a concerted action of the assessee with its foreign AE, or in absence of independent inquiry on the basis of nature of product, services or retail brands catered by the assessee the AO cannot draw any presumption on the basis of AMP expenses quantum or sales that the expenses must have resulted into any benefit to the AE. Therefore, we are inclined to accept the case of assessee that in the given facts and circumstances, the ld. Tax authorities were unable to demonstrate that AMP expenses incurred by the assessee were in any way beneficial to the brand of foreign AE requiring TP adjustment. Thus this issue is decided in favour of the assessee and as a consequence of same the grounds no. 5 and 6 are decided in favour of assessee. 33. In regard to grounds No.7 and 9 arising out of payment of royalty, ....
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....e names are involved only nominal payment of 2% is sufficient. The Ld. AR referred to the relevant paras of the remand report which is reproduced below:- "This office, as a further step, searched for similar royalty agreements on a public database, "Royaltystat". Though no exact comparable agreements were found, however following agreements are considered suitable for determining the royalty rates which should have been paid by the assessee to its AE: S. NO. Licensor Licensee Agreement Description of agreement in Royalty stats royalty rates (taking net sales as base) 1. Amen Wardy, Sr.; Amen Wardy Jr. St. John Knits Inc. Copyrights, Trade Name, Trademark Exclusive license to use the "St. John Home by Amen Wordy" trademarks, trade names and designs to market and distribute a line of home furnishing products and gifts, including window coverings, wall coverings, paints, floor, coverings, furniture, linens, art objects, accent pieces, architectural treatments, china, dishware, flatware, stemware, cookware, bed and bath items, and home accessories 2.00% 2. Mikasa Inc. American Commercial Inc.; Mikasa Licensing Inc.; ARC International, ....
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....e Ld. AR brought to our notice detailed evidence submitted during transfer pricing assessment proceedings demonstrating receipt of marketing information/know-how for selling Tupperware products in India and submitted that this clearly shows that the royalty paid by the assessee is not only for the use of trade name / trademark but also for use of marketing information / know-how provided by Tupperware USA. 13.4 As regards the objection of the Hon'ble DRP with respect to the comparables operating in different geographical region than that of the assessee, the Ld. AR submitted that in the fresh search conducted by the Ld. TPO, he himself accepted royalty agreements operating in foreign jurisdictions and hence 'geographical region' filter applied by him is inappropriate. The comparables selected by the Ld. TPO have also been upheld by the Hon'ble DRP. Thus, in view of approach adopted by the Ld. TPO, the comparables selected by the assessee in its transfer pricing report should be accepted. 13.5 With respect to the 'product similarity' filter applied by the Ld. TPO/Hon'ble DRP, the Ld. AR submitted that royalty is paid for the use of intan....
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...."26. The assessee submitted its reply vide various submissions dated as per order sheet. The same has been studied carefully and issues were discussed with the AR, After considering all the facts of the case and adequate opportunity of being heard duly provided to the Assessee including oral hearing, it was apparent that the license agreement signed by the assessee was only to transfer profit to its foreign AEs. As already discussed in earlier paragraphs that the assessee has failed to provide the comparable Royalty payment data of the Group Entities. The assessee has also not provided the CUP analysis of comparable companies in India having similar FAR as that of the assessee, which can establish that the transaction is at Arm's Length. Such comparables MANUFACTURING PLASTIC KITCHENWARE PRODUCTS need to have similar royalty transactions originating in India providing the royalty to the AEs or Non- AEs in USA where the AE of the assessee is situated. As per the conditions of allowable Royalty Payment laid down by the Reserve Bank of India and the Foreign Investment Promotion Board, in cases where the BRAND is used is around 1% to 2%, As already discussed in earlier paragraphs, ....
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.... to marketing information and know-how that may expand the LICENSEE'S product line; and WHEREAS, LICENSEE desires to utilize the marketing information and know-how of LICENSOR; and j 3. Rights Granted (b) The nonexclusive right to use, in connection with the marketing of Licensed Products, all the Marketing Information provided to LICENSEE under Article 6 hereof. 6. Marketing Information and Assistance LICENSOR will furnish from time to time to LICENSEE, insofar as it is within the possession and control of LICENSOR, and insofar as LICENSOR has developed said information into formal programs or reports, commercial and marketing know-how and information and assistance (collectively, the "Marketing Information"), including without limitation marketing manuals and sales and marketing information which are necessary or desirable for the most advantageous marketing of Licensed Products. In the event that LICENSOR shall provide LICENSEE with Marketing Information specially developed for use in the Licensed Territory which required extraordinary or particularly time- consuming efforts by LICENSOR, LICENSEE Shall compensate LICENSOR for all ....
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....00% Kitchenware & home furnishing items Kitchenware (cookware, bakeware, glassware, hollowware, stemware, serveware and storage accessories) USA 4. Smith & Wesson Corp. 7.00% Kitchenware & home furnishfing items Kitchenware (cutlery and cutlery gift sets) USA 5. Harrow Enterprises Inc. 5.00% Kitchenware & home furnishing itesm Kitchenware (glassware, dinnerware and tableware) USA 6. Colonial Down, LP and Stansley Racing Corn. 7.00 Kitchenware & home furnishing items Kitchenware (plastic bottles; coolers, drink holders) USA 7. FAR -B Acquisition Corp. 5.00% Kitchenware & home furnishing items Kitchenware (cookware, bakeware) USA 8. Genius Products, Inc. 9.00% Kitchenware & home furnishing items Kitchenware (juice cap bags, bottle bags) USA 17. Perusal of the above chart shows that five comparables selected by the assessee are from same geography i.e. USA and the same industry i.e. "Kitchenware and home furnishing items" as the comparables considered by the Ld. TPO. The Ld. TPO rejected two of his own comparables i.e. Mikasa Inc. and Oneida Ltd. by holding that these two compar....
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.... 36. Now, coming to ground No.10 arising out of the issue of interest on outstanding receivable, the ld. TPO has imputed adjustments on account of interest on delayed receivables. The ld. AR has submitted that the ld. TPO has ignored the fact that the post undertaking working capital adjustment of comparable companies selected in TP documentation, the margins earned by appellant are more than that of comparable companies. In this context, the ld. counsel has taken us through the summary of economic analysis available at page 266 of the paper book. The ld. counsel has also submitted that the aggregated TNMM approach has not been disregarded by the TPO while passing its TP order. Reliance was placed on the tribunal judgement of the in the case of Kusum Healthcare Pvt. Ltd., ITA No.6814/Del/2014 as affirmed by the Hon'ble Delhi High court in ITA 6765/2016. 37. In this regard, we find that there is no case of the ld. AO that the AE was charging any interest on account of trade payables from the assessee. We find that the DRP has dealt with this issue observing that the assessee has merely put legal arguments and no submissions on facts and the computation made by the TPO has been pr....
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....g package which offers a holistic enterprise solution, helping organisations manage their business processors, including financials, sales, expenses, etc. 23.1 As against the explanation offered by the assessee that the software supplied to it is a standard/off-the-shelf software, the allegation of the Ld. AO/DRP is that JD Edwards is an ERP software which needs high level of customization before it can be used by any enterprise and hence it must have been customized for the assessee as well by Dart. Therefore, the Revenue has contended that the decision of the Hon'ble Supreme Court in the case of Engineering Analysis Centre of Excellence P. Ltd. (supra) cited and relied upon by the assessee is not applicable to the facts of the present case which case applies to the payments made for standard/off-the-shelf software and not customized software as in the case of the assessee. 23.2 The issue whether the amounts paid by resident Indian end users / distributors to non-resident computer software manufacturer / supplier as consideration for the resale/use of the computer software through end users license agreements (EULAs) /distribution agreements is the payment of....