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TMI Blog2024 (11) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... , or the right to use, any copyright of software . Once it is held that para 3 of Article 12 is not attracted, as a sequitur, the application of clause (a) of para 4 of Article 12 of the DTAA with Portuguese would automatically be ousted, thereby making the amount paid by the assessee to CMA CGM, France for use of LARA, DIVA and Ocean software as immune from taxation in India. Going by the beneficial provision in the DTAA vis- -vis the Act, it is held that there was no requirement on the part of the assessee to deduct tax at source which should have called for any disallowance u/s. 40(a)(i) of the Act - Decided against revenue. - Shri R. K. Panda, Vice President And Shri Vinay Bhamore, Judicial Member For the Revenue : Shri Prakash L. Pat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted an amount of Rs. 9,06,53,035/- as software maintenance charges but TDS was not made on this payment. It was further found by the Assessing Officer that an amount of Rs. 43,91,965/- was incurred towards leased line/ data link charges but TDS was also not deducted on this payment. The Assessing Officer enquired about the reason for non-deduction of TDS on both the above payments. In response, it was submitted by the assessee that TDS is not required to be made on above payment of Rs. 9,06,53,035/- being payment made to parent company and it does not fall in definition of FTS and Rs. 43,91,965/- payment towards leased line charges/ data link charges also does not attract liability of TDS. Being unsatisfied with the reply of the assessee, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R that identical disallowance/ addition was made in assessee s own case for Asstt Year 2012-13, 2013-14, 2015-16 2017-18 the same was deleted by ITAT Pune Benches, Pune by order dated 02-01-2020 passed in ITA No.2314/PUN/2017 for Asstt Year 2012-13. The above order was again followed by the Co-ordinate Bench of this Tribunal in the case of assessee itself for assessment year 2013-14 in ITA No.1454/PUN/2023. It was therefore requested by ld. AR of the assessee that the matter is already covered in favour of assessee and accordingly it was requested to dismiss the appeal filed by the Revenue. 8. We have heard ld. Counsels from both the sides and perused the material available on record. We find that in the case of assessee itself for assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration for the use or, or the right to use, any copyright of literary, artistic or scientific work.. . While discussing the Royalty aspect under the Act supra, we have held that payment for use of software made by the assessee to CMA CGM, France does not satisfy the requirement of use of, or the right to use, any copyright of software . Once it is held that para 3 of Article 12 is not attracted, as a sequitur, the application of clause (a) of para 4 of Article 12 of the DTAA with Portuguese would automatically be ousted, thereby making the amount of Rs. 6.85 crore paid by the assessee to CMA CGM, France for use of LARA, DIVA and Ocean software as immune from taxation in India. Going by the beneficial provision in the DTAA vis- -vis t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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