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TMI Blog2021 (9) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... d that in all the above four situations that sale of software would not constitute royalty within the provisions of section 9(1)(vi) of the I.T. Act and Article 12 of the treaty. In the instant case, the assessee is a foreign company, which sells software licences to the end- users in India. Therefore, this case falls within the first category grouped by the Hon ble Apex Court. On perusal of the end-users licence agreement, it is seen that the end-users licence agreement considered by the Hon ble Apex Court in the case of Engineering Analysis Centre of Excellence P. Ltd. (supra) is identical to the end users licence agreement in the instant case. On perusal of the end-users licence agreement, it is clear even in cases where some element of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... velopment and licencing of software products. During the relevant assessment year, it had sold software to various Indian customers. It was noticed by the Department that the amounts received by assessee for the sale of software/licences is in the nature of royalty in view of the judgment of the Hon'ble jurisdictional High Court in the case of CIT v. Samsung Electronics Limited reported in 320 ITR 209. Since the assessee did not file return of income for the relevant assessment year, notice was issued u/s. 148 of the I.T. Act. In response to the notice issued u/s. 148, the assessee filed return of income for assessment year 2010-2011 on 02.08.2017. During the course of assessment proceedings, it was seen that the assessee had received t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e draft assessment order. Consequent to the DRP's direction, the final assessment order was passed on 01.03.2019. 6. Aggrieved by the final assessment order, the assessee has filed the present appeal before the Tribunal. The learned AR submitted that the issue in question is squarely covered in favour of the assessee by the judgment of the Hon'ble Apex Court in the case of Engineering Analysis Centre of Excellence P. Ltd. v. CIT reported in [2021] 432 ITR 471 (SC). 7. The learned Departmental Representative supported the orders of the Income Tax Authorities. 8. We have heard rival submissions and perused the material on record. The Hon'ble Supreme Court in the case of Engineering Analysis Centre of Excellence P. Ltd. v. CIT ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Hon'ble Apex Court. The Assessing Officer in this case had elaborately examined the end-users licence agreement entered between the assessee and the Indian customers. The relevant portion of the end-users licence agreement considered by the A.O. in the final assessment order are extracted from pages 16 to 18 of the assessment order, hence, the same is not reproduced below. On perusal of the end-users licence agreement, it is seen that the end-users licence agreement considered by the Hon'ble Apex Court in the case of Engineering Analysis Centre of Excellence P. Ltd. (supra) is identical to the end users licence agreement in the instant case. On perusal of the end-users licence agreement, it is clear even in cases where some el ..... X X X X Extracts X X X X X X X X Extracts X X X X
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