Payment made for supply of software is not ‘royalty’ since it is copyrighted software and not copyright in the software

DCIT Vs ABAQUS Engineering Pvt. Ltd. (ITAT Chennai)- Recently, the Chennai Bench of Income-tax Appellate Tribunal  in the case of ABAQUS Engineering Pvt Ltd. held that the payment made for supply of software is not ‘royalty’ since it is ‘copyrighted software’ and not copyright in the software.  The Chennai Tribunal relied on the Mumbai Tribunal’s decision of TII Telecom International Pvt Ltd and Delhi Tribunal Special Bench decision of Motorola Inc, where it has been held that the supply of software does not amount to any transfer of copyright but only transfer of copyrighted article.

Further, payment received for sale of copyrighted article does not amount to income from ‘royalty’. This ruling is very significant from the perspective of software industry, since it has considered difference between use of copyright and copyrighted article. However, the AAR in the recent ruling of Millennium IT Software Ltd has not considered such distinction and held that payment received for right to use copyright in the software is taxable as ‘royalty.

IN THE INCOME TAX APPELLATE TRIBUNAL
Bench ‘B’ Chennai