Payments for computer software sold/licenced on a CD/other physical media cannot be classed as a royalty

World Courier (India) Pvt. Ltd. Vs ACIT (ITAT Bangalore)

M/s. World Courier (India) Pvt. Ltd. (Appellant) has filed an appeal against order dated April 24, 2017 of Commissioner of Income Tax (Appeals) (CIT(A)) on the issue whether Revenue authorities were justified in disallowing sum paid by the Appellant as software maintenance charges to its overseas group companies by invoking section 40a(ia) of the Income Tax Act, 1961 (IT Act).

The Assessing Officer (“AO”) relying on the decision in CIT and Anr. v Samsung Electronics Co. Ltd. [345 ITR 495 (Karn) dated October 15, 2011] disallowed the claim of maintenance charges in the income tax return of the Appellant on the ground that payment in the form of software maintenance charges was in the nature of royalty as it was the payment for a right to use the software and therefore is taxable in India.

The Hon’ble Income Tax Tribunal, Bangalore (“ITAT”) held that payments for computer software sold/licenced on a CD/other physical media cannot be classed as a royalty because the end-user only gets the right to use computer software under a non-exclusive licence, ensuring the owner continues to retain ownership under section 14(b) read with sub-section 14(a) (i)-(vii) of the Copyright Act, 1957.

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