Cloud/web hosting services whether taxable as Royalty or as Fee for Included services (FIS) as per Article 12 of the Indo-US DTAA

Facts:

Assessee a US resident offered cloud hosting web services for which they received consideration. Revenue's plea was that these were either royalty or FIS as per Indo-US DTAA and were held taxable via reassessment process. On appeal to ITAT -

Held in favour of the assessee that cloud web hosting services was not taxable as royalty and it was neither FIS as the same did not make available any technology for the exploitation of the assessee.

Applied:

EPRSS Prepaid Recharge Services India P. Ltd. v. ITO (2018) 100 taxmann.com 52 (Pune-Trib) : 2018 TaxPub(DT) 6907 (Pune-Trib)

Urban Ladder Home Decor Solutions Pvt. Ltd. v. ACIT (IT) TS-773- ITAT-2021(Bang) : 2021 TaxPub(DT) 4578 (Bang-Trib); which was rendered in the context of AY 2016-17 which is also one of the AYs under consideration in the present appeal.

Reasoning Global E-Application Ltd. v. DCIT (2022) 145 taxmann.com 464 (Hyd-Trib) : 2022 TaxPub(DT) 5596 (Hyd-Trib)

Microsoft Regional Sales Pte. Ltd. v. ACIT (2022) 145 taxmann.com 29 (Del-Trib) : 2022 TaxPub(DT) 7821 (Del-Trib) upheld by the Honble Delhi High Court in the case of CIT v. MOL Corporation 99/2023 dated 16-02-2023 (Del).

Salesforce.com Singapore Pie v. Dy. DIT Circle2(2) ITA No. 4915/DEL/2016, dt. 25-3-2022 : 2022 TaxPub(DT) 2517 (Del-Trib) [AY 2010-11]

TT v. Savvis Communication Corporation [2016] 69 taxmann.com 106.(Mumbai Trib.) : 2016 TaxPub(DT) 1879 (Mum-Trib)

Case: Amazon Web Services, Inc. v. ACIT 2023 TaxPub(DT) 4738 (Del-Trib)