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“computer software”

Chapter III - Incomes Not IncludedSection 10BSection 10B Explanation 2 / Section 80HHF951 judgments

The decision most relied on for computer software is Engineering Analysis Centre of Excellence (P) Ltd. v. CIT (432 ITR 471), cited in 914 judgments on BharatTax.

Leading authorities on computer software

Engineering Analysis Centre of Excellence (P) Ltd. v. CIT
432 ITR 471 · 2021 · Supreme Court
914
citing judgments

Payments for the supply or use of computer software, where there is no transfer of copyright but only a right to use the copyrighted product, are generally considered business profits and not 'royalty' or 'fees for technical services' under the Income Tax Act, 1961 or relevant DTAAs. This principle also applies to transponder fees, which are not taxable as royalty.

CIT v. Samsung Electronics Ltd.
345 ITR 494 · 2012 · High Court
461
citing judgments

Payments by Indian residents to non-resident foreign software suppliers for software are considered royalty, constituting income deemed to accrue in India under section 9(1)(v), thereby requiring tax deduction at source under section 195.

DIT v. Infrasoft Ltd.
39 Taxmann.com 88 · 2013 · High Court
269
citing judgments

Payments for the use of copyrighted software, without the transfer of any rights in the underlying copyright itself, do not constitute 'royalty' under the Income-tax Act or tax treaties. Such payments are often treated as business income, taxable only if a permanent establishment exists.

III v. HCL Technologies Ltd.
93 Taxmann.com 33 · 2018 · Supreme Court
245
citing judgments

When computing the deduction available under Section 10A of the Income-tax Act, communication expenses must be excluded from the total turnover for the purpose of calculating the eligible relief.

CIT v. Synopsis International Old Ltd.
212 Taxmann 454 · 2013 · High Court
177
citing judgments

Payments for computer software are treated as royalty income under Section 9(1)(vi) of the Income-tax Act, particularly concerning the expanded definition provided by Explanation 2 and Explanation 4.

CIT v. Asahi India Safety Glass Ltd.
346 ITR 329 · 2012 · High Court
129
citing judgments

Expenses incurred for software license purchase, development of miscellaneous software, and maintenance of websites are considered revenue in nature. Such expenses are deductible in the year they are incurred.

Amway India Enterprises v. DCIT
111 ITD 112 · 2008 · ITAT
127
citing judgments

Depreciation is allowable on computer software, including software licenses, at the rate of 60%.

Kotak Mahindra Primus Ltd. v. DDIT
11 SOT 578 · 2007 · ITAT
99
citing judgments

Payments for data processing services using a mainframe computer and specialized software are not taxable as fees for the use of equipment if the Indian entity lacks independent rights or physical access to use the computer or software.

Judgments citing computer software

DCIT, Circle-3(1)(1), Int. Taxation, New Delhi vs. Raytheon Company, United States

In the result, all the appeals of the Revenue for the

ITA 1387/DEL/2023[2009-10]Status: DisposedITAT Delhi31 Aug 2023AY 2009-10

Bench: Shri Challa Nagendra Prasad & Shri M Balaganeshआ.अ.सं/.I.T.A Nos.1383 To 1392/Del/2023 िनधा"रणवष"/Assessment Yeasrs:2004-05 To 2006-07, 2008-09 To 2011-12 & 2014-15 To 2016-17 बनाम Dcit, Raytheon Company Circle 3(1)(1), Vs. 870, Winter Steet, Int. Taxation, Waltham-Ma 02451, Room No. 416, Foreign Usa, 4Th Floor, E-2 Block, Usa. Dr. S.P. Mukherjee Civic Centre, J.L. Nehru Marg, New Delhi. Pan No. Aadcr3511P अपीलाथ" Appellant ""यथ"/Respondent & आ.अ.सं/.I.T.A No.441/Del/2023 िनधा"रणवष"/Assessment Year:2007-08 बनाम Acit, Raytheon Company Circle 3(1)(1), Vs. C/O Srbc & Associates Int. Taxation, Llp, Golf View Corporate Room No. 416, Tower-B, Sector-42, 4Th Floor, E-2 Block, Sector Road, Gurgaon, Dr. S.P. Mukherjee Civic Centre, Haryana. J.L. Nehru Marg, New Delhi. Pan No. Aadcr3511P अपीलाथ" Appellant ""यथ"/Respondent

Section 143(3)Section 271(1)(c)

Copyright Act. Where the core of a transaction is to authorize the end-user to have access to and make use of the “licensed” computer software product over which the licensee has no exclusive rights, no copyright is parted with and consequently, no infringement takes place, as is recognized ... section 52(1 )(aa) of the Copyright Act. It makes no difference whether the end- user is enabled to use computer software that is customized to its specifications or otherwise. (v) A non-exclusive, non-transferable licence, merely enabling the use of a copyrighted product, is in the nature

DCIT, Circle-3(1)(1) Int. Taxation, New Delhi vs. Raytheon Company, United States

In the result, all the appeals of the Revenue for the

ITA 1386/DEL/2023[2008-09]Status: DisposedITAT Delhi31 Aug 2023AY 2008-09

Bench: Shri Challa Nagendra Prasad & Shri M Balaganeshआ.अ.सं/.I.T.A Nos.1383 To 1392/Del/2023 िनधा"रणवष"/Assessment Yeasrs:2004-05 To 2006-07, 2008-09 To 2011-12 & 2014-15 To 2016-17 बनाम Dcit, Raytheon Company Circle 3(1)(1), Vs. 870, Winter Steet, Int. Taxation, Waltham-Ma 02451, Room No. 416, Foreign Usa, 4Th Floor, E-2 Block, Usa. Dr. S.P. Mukherjee Civic Centre, J.L. Nehru Marg, New Delhi. Pan No. Aadcr3511P अपीलाथ" Appellant ""यथ"/Respondent & आ.अ.सं/.I.T.A No.441/Del/2023 िनधा"रणवष"/Assessment Year:2007-08 बनाम Acit, Raytheon Company Circle 3(1)(1), Vs. C/O Srbc & Associates Int. Taxation, Llp, Golf View Corporate Room No. 416, Tower-B, Sector-42, 4Th Floor, E-2 Block, Sector Road, Gurgaon, Dr. S.P. Mukherjee Civic Centre, Haryana. J.L. Nehru Marg, New Delhi. Pan No. Aadcr3511P अपीलाथ" Appellant ""यथ"/Respondent

Section 143(3)Section 271(1)(c)

Copyright Act. Where the core of a transaction is to authorize the end-user to have access to and make use of the “licensed” computer software product over which the licensee has no exclusive rights, no copyright is parted with and consequently, no infringement takes place, as is recognized ... section 52(1 )(aa) of the Copyright Act. It makes no difference whether the end- user is enabled to use computer software that is customized to its specifications or otherwise. (v) A non-exclusive, non-transferable licence, merely enabling the use of a copyrighted product, is in the nature

DCIT, Circle-3(1)(1), Int. Taxation, New Delhi vs. Raytheon Company, United States

In the result, all the appeals of the Revenue for the

ITA 1385/DEL/2023[2006-07]Status: DisposedITAT Delhi31 Aug 2023AY 2006-07

Bench: Shri Challa Nagendra Prasad & Shri M Balaganeshआ.अ.सं/.I.T.A Nos.1383 To 1392/Del/2023 िनधा"रणवष"/Assessment Yeasrs:2004-05 To 2006-07, 2008-09 To 2011-12 & 2014-15 To 2016-17 बनाम Dcit, Raytheon Company Circle 3(1)(1), Vs. 870, Winter Steet, Int. Taxation, Waltham-Ma 02451, Room No. 416, Foreign Usa, 4Th Floor, E-2 Block, Usa. Dr. S.P. Mukherjee Civic Centre, J.L. Nehru Marg, New Delhi. Pan No. Aadcr3511P अपीलाथ" Appellant ""यथ"/Respondent & आ.अ.सं/.I.T.A No.441/Del/2023 िनधा"रणवष"/Assessment Year:2007-08 बनाम Acit, Raytheon Company Circle 3(1)(1), Vs. C/O Srbc & Associates Int. Taxation, Llp, Golf View Corporate Room No. 416, Tower-B, Sector-42, 4Th Floor, E-2 Block, Sector Road, Gurgaon, Dr. S.P. Mukherjee Civic Centre, Haryana. J.L. Nehru Marg, New Delhi. Pan No. Aadcr3511P अपीलाथ" Appellant ""यथ"/Respondent

Section 143(3)Section 271(1)(c)

Copyright Act. Where the core of a transaction is to authorize the end-user to have access to and make use of the “licensed” computer software product over which the licensee has no exclusive rights, no copyright is parted with and consequently, no infringement takes place, as is recognized ... section 52(1 )(aa) of the Copyright Act. It makes no difference whether the end- user is enabled to use computer software that is customized to its specifications or otherwise. (v) A non-exclusive, non-transferable licence, merely enabling the use of a copyrighted product, is in the nature

DCIT, Circle-3(1)(1), Int.Taxation, New Delhi vs. Raytheon Company, United States

In the result, all the appeals of the Revenue for the

ITA 1384/DEL/2023[2005-06]Status: DisposedITAT Delhi31 Aug 2023AY 2005-06

Bench: Shri Challa Nagendra Prasad & Shri M Balaganeshआ.अ.सं/.I.T.A Nos.1383 To 1392/Del/2023 िनधा"रणवष"/Assessment Yeasrs:2004-05 To 2006-07, 2008-09 To 2011-12 & 2014-15 To 2016-17 बनाम Dcit, Raytheon Company Circle 3(1)(1), Vs. 870, Winter Steet, Int. Taxation, Waltham-Ma 02451, Room No. 416, Foreign Usa, 4Th Floor, E-2 Block, Usa. Dr. S.P. Mukherjee Civic Centre, J.L. Nehru Marg, New Delhi. Pan No. Aadcr3511P अपीलाथ" Appellant ""यथ"/Respondent & आ.अ.सं/.I.T.A No.441/Del/2023 िनधा"रणवष"/Assessment Year:2007-08 बनाम Acit, Raytheon Company Circle 3(1)(1), Vs. C/O Srbc & Associates Int. Taxation, Llp, Golf View Corporate Room No. 416, Tower-B, Sector-42, 4Th Floor, E-2 Block, Sector Road, Gurgaon, Dr. S.P. Mukherjee Civic Centre, Haryana. J.L. Nehru Marg, New Delhi. Pan No. Aadcr3511P अपीलाथ" Appellant ""यथ"/Respondent

Section 143(3)Section 271(1)(c)

Copyright Act. Where the core of a transaction is to authorize the end-user to have access to and make use of the “licensed” computer software product over which the licensee has no exclusive rights, no copyright is parted with and consequently, no infringement takes place, as is recognized ... section 52(1 )(aa) of the Copyright Act. It makes no difference whether the end- user is enabled to use computer software that is customized to its specifications or otherwise. (v) A non-exclusive, non-transferable licence, merely enabling the use of a copyrighted product, is in the nature

DCIT, Circle-3(1)(1), Int. Taxation, New Delhi vs. Raytheon Company, United States

In the result, all the appeals of the Revenue for the

ITA 1383/DEL/2023[2004-05]Status: DisposedITAT Delhi31 Aug 2023AY 2004-05

Bench: Shri Challa Nagendra Prasad & Shri M Balaganeshआ.अ.सं/.I.T.A Nos.1383 To 1392/Del/2023 िनधा"रणवष"/Assessment Yeasrs:2004-05 To 2006-07, 2008-09 To 2011-12 & 2014-15 To 2016-17 बनाम Dcit, Raytheon Company Circle 3(1)(1), Vs. 870, Winter Steet, Int. Taxation, Waltham-Ma 02451, Room No. 416, Foreign Usa, 4Th Floor, E-2 Block, Usa. Dr. S.P. Mukherjee Civic Centre, J.L. Nehru Marg, New Delhi. Pan No. Aadcr3511P अपीलाथ" Appellant ""यथ"/Respondent & आ.अ.सं/.I.T.A No.441/Del/2023 िनधा"रणवष"/Assessment Year:2007-08 बनाम Acit, Raytheon Company Circle 3(1)(1), Vs. C/O Srbc & Associates Int. Taxation, Llp, Golf View Corporate Room No. 416, Tower-B, Sector-42, 4Th Floor, E-2 Block, Sector Road, Gurgaon, Dr. S.P. Mukherjee Civic Centre, Haryana. J.L. Nehru Marg, New Delhi. Pan No. Aadcr3511P अपीलाथ" Appellant ""यथ"/Respondent

Section 143(3)Section 271(1)(c)

Copyright Act. Where the core of a transaction is to authorize the end-user to have access to and make use of the “licensed” computer software product over which the licensee has no exclusive rights, no copyright is parted with and consequently, no infringement takes place, as is recognized ... section 52(1 )(aa) of the Copyright Act. It makes no difference whether the end- user is enabled to use computer software that is customized to its specifications or otherwise. (v) A non-exclusive, non-transferable licence, merely enabling the use of a copyrighted product, is in the nature

M/S. Zensar Technologies Ltd, Mumbai vs. The DCIT -2(3), Mumbai

In the result, ground No.5 and the additional ground of appeal are allowed

ITA 2907/MUM/2008[2002-2003]Status: DisposedITAT Mumbai28 Aug 2023AY 2002-2003

Bench: Shri Vikas Awasthy & Shrigagan Goyalआअसं.2907/मुं/2008 ("न.व.2002-03) Zensar Technologies Ltd. Magnet House, 2Nd Floor, Narottam Morarjee Marg, Ballard Estate, Mumbai 400 038. Pan: Aaacf-0742-K ...... अपीलाथ"/Appellant बनाम Vs. Dy. Commissioner Of Income Tax, Circle 2(31), Mumbai Mumbai. ..... ""तवाद"/Respondent अपीलाथ" "वारा/ Appellant By Shri Nitesh Joshi, Advocate : ""तवाद" "वारा/Respondent By : S/Shri Jasdeep Singh, Cit-Dr & Pratap Narayan Sharma, Sr. Ar सुनवाई क" "त"थ/ Date Of Hearing : 02/06/2023 घोषणा क" "त"थ/ Date Of Pronouncement : 28/08/2023 आदेश/Order

For Respondent: S/Shri Jasdeep Singh, CIT-DR &
Section 10ASection 115JSection 234DSection 80HSection 94(7)

perused the records and considered the matter carefully. The dispute is regarding inclusion of export turnover of other units in the export turnover of computer software business while computing deduction under section 80HHE. Under the said section, deduction is allowable in respect of profit derived from the export of computer ... apportioned in the ratio of export turnover to total turnover. Therefore the export turnover will only be turnover of exports in relation to the computer software and it will not include any turnover of any other unit. The total turnover will be the turnover of business in respect of which

Tech Data(Singapore) Pte Limited, Mumbai vs. The Deputy Comm. of Income Tax (It) Circle -4(1)(2), Mumbai

In the result, ground No.3 of appeal is allowed

ITA 2367/MUM/2022[2019-20]Status: DisposedITAT Mumbai21 Aug 2023AY 2019-20

Bench: Shri Vikas Awasthy & Shri Gagan Goyalआअसं.2367/मुं/ 2022 (िन.व.2019-20) Tech Data (Singapore) Pte Limited, 10, #05-17/20 Techpoint, Ang Mo Kio Street 65, Singapore -569059 Pan: Aagct-0951-J ...... अपीलाथ" /Appellant बनाम Vs. The Deputy Commissioner Of Income Tax International Taxation, Circle -4(1)(2) Mumbai . ..... "ितवादी/Respondent अपीलाथ" "ारा/ Appellant By : Shri Nitesh Joshi "ितवादी "ारा/Respondent By : Shri Avneesh Tiwari सुनवाई क" ितिथ/ Date Of Hearing : 22/05/2023 घोषणा क" ितिथ/ Date Of Pronouncement : 21/08/2023 आदेश आदेश/ Order आदेश आदेश Per Vikas Awasthy, Jm: This Appeal By The Assessee Is Directed Against The Assessment Order Dated 19/07/2022 Passed U/S. 143(3) R.W.S. 144C(13) Of The Income Tax Act, 1961 [ In Short ‘The Act], For The Assessment Year 2019-20. 2. The Assessee In Appeal Has Raised Five Grounds. The Gist Of Grounds Raised By The Assessee In Appeal Is As Under: (I) Challenge To Validity Of Assessment – Notice U/S. 143(2) Of The Act Issued Without Authority.

For Appellant: Shri Nitesh JoshiFor Respondent: Shri Avneesh Tiwari
Section 143(2)Section 143(3)Section 234ASection 274

fall in any of the categories mentioned in the aforesaid judgment. The Assessing Officer erred in holding that, the Hon'ble Apex Court considered computer software as affixed to hardware and sold as integrated unit/equipment by foreign non- resident supplier to resident Indian distributor or end user. The ld. Counsel ... software vendors in four categories. The assessee falls in second category i.e. where Indian Resident Company acts as distributor or re-seller by purchasing computer software from foreign non- 4 resident suppliers or manufacturers and then resell the same to resident Indian end users. He submitted that the assessee filed

Uni Design Jewellery Pvt Ltd, Mumbai vs. Deputy Commissioner of Income Tax, Central Circle-1(2), Mumbai

In the result, the appeal of the assessee is allowed

ITA 1345/MUM/2023[2017-2018]Status: DisposedITAT Mumbai31 Jul 2023AY 2017-2018

Bench: Shri Amit Shukla & Shri Amarjit Singhuni Design Elite Jewellery Vs. Dcit, Cc-1(2) Private Limited 906, 9Th Floor, Pratishtha 401 & 402, 4Th Floor Bhavan, Old Cgo Bldg. Tower- Ii, Seepz ++ M.K. Road, Andheri (East), Mumbai - 400020 Mumbai – 400 096 स्थायी लेखा सं./जीआइआर सं./Pan/Gir No: Aaack3499E Appellant .. Respondent [ Appellant By : Vijay Mehta Respondent By : Lieder Panicker Date Of Hearing 26.07.2023 Date Of Pronouncement 31.07.2023 आदेश / O R D E R Per Amarjit Singh (Am): This Appeal Filed By The Assesse Is Directed Against The Order Passed By The Ld. Cit(A)-47, Mumbai, Dated 17.03.2023 For A.Y. 2017- 18. The Assessee Has Raised The Following Grounds Before Us: “On The Facts & Circumstances Of The Case & In Law, The Hon'Ble Cit(A) Erred In Confirming The Disallowance Made By The Ld. Ao By Not Considering Export Sale Realized After Limitation Of Time As Export Turnover & Consequently Restricting Deduction U/S 10Aa Of The Act By Rs.6,87,170 By Computing Deduction U/S 10Aa At Rs.5,66,02,032. The Appellant Prays That Export Sale Realized After Limitation Of Time Be Considered As Export Turnover & Deduction U/S 10Aa As Claimed By The Appellant Be Granted. The Appellant Craves, Leave To Add, Amend, Alter, Omit Any Of The Grounds Of Appeal Before Or During The Hearing Of The Appeal, If So Advised.”

For Appellant: Vijay MehtaFor Respondent: Lieder Panicker
Section 10ASection 143(2)

rival contentions. According to section 10 AA of the act the profits derived from the export of articles or things or services (including computer software) shall be the amount which bears to the profits of the business of the undertaking, being the Unit, the same proportion as the export turnover ... attributable to the delivery of the articles or things outside India or expenses, if any, incurred in foreign exchange in rendering of services (including computer software) outside India. Explanation 1 (ii) defines export as "export in relation to the Special Economic Zones" taking goods or providing services out of India

Utstarcom Inc., Gurgaon vs. ADIT, New Delhi

In the result, appeal is dismissed

ITA 187/DEL/2014[2005-06]Status: DisposedITAT Delhi30 Jun 2023AY 2005-06

Bench: Shri G.S. Pannu, Hon’Ble & Shri Saktijit Deyassessment Year: 2004-05 Ut Starcom Inc., Vs. Acit, India Branch Office, Gurgaon Circle, 805, Signature Towers-B, Gurgaon South City-1, Gurgaon, Haryana Pan :Aaacu5017A (Appellant) (Respondent) With Assessment Year: 2005-06 Ut Starcom Inc., Vs. Adit, (Formerly Operating Through A Circle-3(1), Branch Office In India), International Taxation, 10Th Floor, Signature Towers- New Delhi B, South City-1, Gurgaon, Haryana Pan :Aaacu5017A (Appellant) (Respondent) With Assessment Year: 2004-05 Ddit, Vs. Ut Starcom Inc., Circle-3(1) & 3(2) India Branch Office, International Taxation, 805, Signature Towers-B, New Delhi South City-1, Gurgaon, Haryana Pan :Aaacu5017A (Appellant) (Respondent)

Section 115ASection 9(1)(vi)

into following four categories: “4. The appeals before us may be grouped into four categories: i. The first category deals with cases in which computer software is purchased directly by and end-user, resident in India, from a foreign, non-resident supplier or manufacturer. ii. The second category of cases ... deals with resident Indian companies that act as distributors or resellers, by purchasing computer software from foreign, non-resident suppliers or manufacturers and then reselling the same to resident Indian end-users. iii. The third category concerns cases wherein the distributor happens to be a foreign, non-resident vendor

Ut Starcom Inc., Gurgaon vs. ACIT, Gurgaon

In the result, appeal is dismissed

ITA 998/DEL/2009[2004-05]Status: DisposedITAT Delhi30 Jun 2023AY 2004-05

Bench: Shri G.S. Pannu, Hon’Ble & Shri Saktijit Deyassessment Year: 2004-05 Ut Starcom Inc., Vs. Acit, India Branch Office, Gurgaon Circle, 805, Signature Towers-B, Gurgaon South City-1, Gurgaon, Haryana Pan :Aaacu5017A (Appellant) (Respondent) With Assessment Year: 2005-06 Ut Starcom Inc., Vs. Adit, (Formerly Operating Through A Circle-3(1), Branch Office In India), International Taxation, 10Th Floor, Signature Towers- New Delhi B, South City-1, Gurgaon, Haryana Pan :Aaacu5017A (Appellant) (Respondent) With Assessment Year: 2004-05 Ddit, Vs. Ut Starcom Inc., Circle-3(1) & 3(2) India Branch Office, International Taxation, 805, Signature Towers-B, New Delhi South City-1, Gurgaon, Haryana Pan :Aaacu5017A (Appellant) (Respondent)

Section 115ASection 9(1)(vi)

into following four categories: “4. The appeals before us may be grouped into four categories: i. The first category deals with cases in which computer software is purchased directly by and end-user, resident in India, from a foreign, non-resident supplier or manufacturer. ii. The second category of cases ... deals with resident Indian companies that act as distributors or resellers, by purchasing computer software from foreign, non-resident suppliers or manufacturers and then reselling the same to resident Indian end-users. iii. The third category concerns cases wherein the distributor happens to be a foreign, non-resident vendor

DDIT, New Delhi vs. M/S. Ut Starcom Inc., Gurgaon

In the result, appeal is dismissed

ITA 1858/DEL/2009[2004-05]Status: DisposedITAT Delhi30 Jun 2023AY 2004-05

Bench: Shri G.S. Pannu, Hon’Ble & Shri Saktijit Deyassessment Year: 2004-05 Ut Starcom Inc., Vs. Acit, India Branch Office, Gurgaon Circle, 805, Signature Towers-B, Gurgaon South City-1, Gurgaon, Haryana Pan :Aaacu5017A (Appellant) (Respondent) With Assessment Year: 2005-06 Ut Starcom Inc., Vs. Adit, (Formerly Operating Through A Circle-3(1), Branch Office In India), International Taxation, 10Th Floor, Signature Towers- New Delhi B, South City-1, Gurgaon, Haryana Pan :Aaacu5017A (Appellant) (Respondent) With Assessment Year: 2004-05 Ddit, Vs. Ut Starcom Inc., Circle-3(1) & 3(2) India Branch Office, International Taxation, 805, Signature Towers-B, New Delhi South City-1, Gurgaon, Haryana Pan :Aaacu5017A (Appellant) (Respondent)

Section 115ASection 9(1)(vi)

into following four categories: “4. The appeals before us may be grouped into four categories: i. The first category deals with cases in which computer software is purchased directly by and end-user, resident in India, from a foreign, non-resident supplier or manufacturer. ii. The second category of cases ... deals with resident Indian companies that act as distributors or resellers, by purchasing computer software from foreign, non-resident suppliers or manufacturers and then reselling the same to resident Indian end-users. iii. The third category concerns cases wherein the distributor happens to be a foreign, non-resident vendor