Online database access - Whether Fee for included services under Indo-US DTAA

Facts :

Assessee a US resident, was the owner of the Lexis Nexis database and received database subscription fees from India. Departmental stand was these were fee for included services and was held as taxable by the AO and the DRP. Assessee's stand was there was no PE for the assessee in India and the subscription charges were not fee for included services as per Indo-US DTAA but were business profits and in the absence of a PE no tax can be fastened on the same. On higher appeal by the assessee -

Held in favour of the assessee that the subscription fee was not fee for included services as per the Indo-US DTAA and in the absence of a PE in India the same cannot be taxed in India.

Applied :

Elsevier Information Systems GmbH v. Dy. Commissioner of Income Tax (IT) in [ITA No. 1683/Mum/2015, dt. 15-4-2019] : 2019 TaxPub(DT) 3178 (Mum-Trib).

ITO v. Cedilla Healthcare Ltd. (2017) 77 taxmann.com 309 (Ahm ITAT)

DIT (International Taxation) v. Dun & Bradstreet Information Elsevier Information Systems GmbH Services India (P.) Ltd. (2011) 338 ITR 95 (Bom-HC) : 2011 TaxPub(DT) 1989 (Bom-HC)

Case: Relx Inc. v. ACIT 2023 TaxPub(DT) 2233 (Del-Trib)