Section 9(1)(vii) of the Income Tax Act

Income-tax Act, 2025: s.9

Section 9(1)(vii) falls under section 9 of the Income-tax Act, 1961, which corresponds to section 9 (Income deemed to accrue or arise in India) of the Income-tax Act, 2025.

Read section 9 of the 2025 Act

Correspondence checked against the ICAI tabular mapping of the two Acts and the BharatTax.co section commentary.

The decision most relied on for Section 9(1)(vii) is Engineering Analysis Centre of Excellence (P) Ltd. v. CIT (432 ITR 471), cited in 914 of the 1,640 judgments on BharatTax that turn on this section.

Leading authorities on Section 9(1)(vii)

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.

Ishikawajima Harima Heavy Industries Ltd. v. DIT
288 ITR 408 · 2007 · Supreme Court
394
citing judgments

Income from offshore supply of goods and services is not taxable in India if the entire transaction, including transfer of ownership and payments, occurs outside India.

CIT v. De Beers India Minerals (P.) Ltd.
346 ITR 467 · 2012 · High Court
371
citing judgments

For fees for technical or consultancy services to 'make available' technical knowledge or know-how under a DTAA, the service must transmit such knowledge, allowing the recipient to derive an enduring benefit and utilize it independently in the future.

DIT v. New Skies Satellite BV
382 ITR 114 · 2016 · High Court
325
citing judgments

An amendment to the Income Tax Act, such as the Finance Act, 2012 amendment to Section 9(1)(vi) defining royalty, does not automatically override or alter the definition of 'royalty' as provided in a Double Taxation Avoidance Agreement (DTAA) unless the DTAA itself is bilaterally amended. The definition of royalty in a DTAA remains unaffected by unilateral changes to domestic law.

DIT v. Nokia Networks OY
358 ITR 259 · 2013 · High Court
276
citing judgments

Payments for the supply of software along with telecom equipment are not in the nature of royalty if they are for the use of a copyrighted article, not the copyright itself. Such payments are not taxable in India in the absence of a Permanent Establishment (PE).

CIT v. Toshoku Ltd.
125 ITR 525 · 1980 · Supreme Court
270
citing judgments

A non-resident commission agent is not chargeable to tax in India on commission income if no business operations are carried out in India. Consequently, no TDS is required under Section 195 on such payments.

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.

CIT v. Siemens Aktiongesellschaft
310 ITR 320 · 2009 · High Court
259
citing judgments

Reimbursements of actual expenses without any profit element are not taxable income. Additionally, mere amendments to the Income-tax Act do not override the provisions of Double Taxation Avoidance Agreements (DTAAs).

DIT v. Ericsson A.B
343 ITR 470 · 2012 · High Court
256
citing judgments

Payments for the use of copyrighted software or reimbursement of data processing costs do not constitute 'royalty' under Section 9(1)(vi) of the Income-tax Act or Article 12(3) of a DTAA where there is no transfer of copyright or rendering of services that "make available" technical knowledge. This position was later upheld by the Supreme Court.

Judgments on Section 9(1)(vii)

M/S. Qliktech International Ab, Bangalore vs. Assistant Commissioner of Income Tax, International Taxation, Circle-2(1), Bengaluru

In the result, the appeal filed by the assessee is partly allowed

ITITA 71/BANG/2023[2016-17]Status: DisposedITAT Bangalore29 Mar 2023AY 2016-17

Bench: Shri George George K, Jm & Shri Laxmi Prasad Sahu, Am It(It)A No.71/Bang/2023 : Asst.Year 2016-2017 M/S.Qlik Tech International Ab The Assistant Commissioner C/O.Qlik Tech India Pvt. Ltd. Of Income-Tax, International V. No.1 & 2, The Millennia Tower A Taxation, Circle 2(1) 4Th Floor, Murphy Road, Ulsoor Bengaluru. Bengaluru – 560 008. Pan : Aaacq2234R. (Appellant) (Respondent) Appellant By : Ms.Sanjana Dawar, Ca Respondent By : Sri.G.Manoj Kumar, Cit-Dr Date Of Pronouncement : 29.03.2023 Date Of Hearing : 28.03.2023 O R D E R Per George George K, Jm : This Appeal At The Instance Of The Assessee Is Directed Against Final Assessment Order Dated 12.12.2022 Passed U/S 143(3) R.W.S. 147 R.W.S. 144C Of The I.T.Act. The Relevant Assessment Year Is 2016-2017. 2. The Brief Facts Of The Case Are As Follows: The Assessee Is A Foreign Company Incorporated In Sweden. It Is Engaged In The Business Of Rendering Information Technology (It) Services & Sale Of Software Products. The Assessee Had Entered Into An Agreement With A Subsidiary, M/S.Qlik Tech India Private Limited (Qliktech India) For Sale Of Software & For Rendering Corporate Management / Finance

For Appellant: Ms.Sanjana Dawar, CAFor Respondent: Sri.G.Manoj Kumar, CIT-DR
Section 143(3)Section 144C(5)Section 147Section 148Section 9

Basf Catalysts India Private Limited, Kancheepuram vs. DCIT Corporate Circle 1(2), Chennai

In the result, all the appeals filed by the assessee are allowed for statistical purposes

ITA 1249/CHNY/2018[2012-13]Status: DisposedITAT Chennai15 Mar 2023AY 2012-13

Bench: Shri V. Durga Rao & Shri G. Manjunathaआयकर अपील सं./I.T.A. Nos. 1248 & 1249/Chny/2018 िनधा"रण वष"/Assessment Years: 2011-12 & 2012-13 Basf Catalysts India Private Limited, The Deputy Commissioner Of Plot No. 8/1, Veerapuram Village, Vs. Income Tax, Mahindra World City, Chengalpattu, Corporate Circle I(2), Kancheepuram District 603 002. Chennai. [Pan:Aaace2545B] (अपीलाथ"/Appellant) (""थ"/Respondent) अपीलाथ" की ओर से / Appellant By : Ms. N.V. Lakshmi, Advocate ""थ" की ओर से/Respondent By : Shri D. Hema Bhupal, Jcit सुनवाई की तारीख/ Date Of Hearing : 09.03.2023 घोषणा की तारीख /Date Of Pronouncement : 15.03.2023 आदेश /O R D E R Per V. Durga Rao: Both The Appeals Filed By The Assessee Are Directed Against The Common Order Of The Ld. Commissioner Of Income Tax (Appeals) 1, Chennai Dated 31.01.2018 Relevant To The Assessment Years 2011-12 & 2012-13. Since, Common Issues Have Been Raised In An Identical Fact, For The Sake Of Convenience; Both Appeals Were Heard Together & Are Being Disposed Of By This Consolidated Order. The Grounds Raised In The Assessment Year 2011-12 Are Extracted As Under:

For Appellant: Ms. N.V. Lakshmi, AdvocateFor Respondent: Shri D. Hema Bhupal, JCIT
Section 143(3)Section 195Section 40Section 9(1)(vii)

Basf Catalysts India Private Limited, Kancheepuram vs. DCIT Corporate Circle 1(2), Chennai

In the result, all the appeals filed by the assessee are allowed for statistical purposes

ITA 1248/CHNY/2018[2011-12]Status: DisposedITAT Chennai15 Mar 2023AY 2011-12

Bench: Shri V. Durga Rao & Shri G. Manjunathaआयकर अपील सं./I.T.A. Nos. 1248 & 1249/Chny/2018 िनधा"रण वष"/Assessment Years: 2011-12 & 2012-13 Basf Catalysts India Private Limited, The Deputy Commissioner Of Plot No. 8/1, Veerapuram Village, Vs. Income Tax, Mahindra World City, Chengalpattu, Corporate Circle I(2), Kancheepuram District 603 002. Chennai. [Pan:Aaace2545B] (अपीलाथ"/Appellant) (""थ"/Respondent) अपीलाथ" की ओर से / Appellant By : Ms. N.V. Lakshmi, Advocate ""थ" की ओर से/Respondent By : Shri D. Hema Bhupal, Jcit सुनवाई की तारीख/ Date Of Hearing : 09.03.2023 घोषणा की तारीख /Date Of Pronouncement : 15.03.2023 आदेश /O R D E R Per V. Durga Rao: Both The Appeals Filed By The Assessee Are Directed Against The Common Order Of The Ld. Commissioner Of Income Tax (Appeals) 1, Chennai Dated 31.01.2018 Relevant To The Assessment Years 2011-12 & 2012-13. Since, Common Issues Have Been Raised In An Identical Fact, For The Sake Of Convenience; Both Appeals Were Heard Together & Are Being Disposed Of By This Consolidated Order. The Grounds Raised In The Assessment Year 2011-12 Are Extracted As Under:

For Appellant: Ms. N.V. Lakshmi, AdvocateFor Respondent: Shri D. Hema Bhupal, JCIT
Section 143(3)Section 195Section 40Section 9(1)(vii)