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The Tax Publishers Taxability of software as royalty under Indo-Ireland DTAA Article 12. Taxability of automated communication network support under Indo-Ireland DTAA Article 12. *Facts:* Assessee an Irish resident had sold communication software to various entities in India besides offering standard communication support and network connectivity and switching services to assessee's in India. Stand of the assessee was both were not taxable in India. On sale of communication software it was sale of copyrighted property akin to goods thus not taxable in India. On support services since these services were standard services with no human intervention were not taxable in India. CIT(A) upheld the software sale as not taxable in India basing Apex court decision of Engineering Analysis Centre of Excellence Pvt. Ltd. v. CIT and another (2022) 3SCC 321 and refused to accept the stand of the assessee on support services. On cross appeals by both revenue and by assessee - Held in favour of the assessee basing Engineering Analysis Centre of Excellence Pvt. Ltd. v. CIT and another (2022) 3SCC 321 that the sale of software was not taxable in India. Held against the assessee by remanding the case to AO for fresh consideration as to whether the standard services provided by assessee involved human intervention or otherwise. Decision of CIT v. M/s. Bharti Cellular (2011) 193 Taxman 97 (SC) : 2011 TaxPub(DT) 0394 (SC) also held that the topic needs expert intervention to decide whether human interface was necessary or otherwise to decide on taxability which was applied herein. *Ed. Note:* The stand of both streams of income not being taxable needs a judicial arbitration sooner or later. Otherwise based on Engineering Analysis Centre of Excellence Pvt. Ltd. v. CIT and another (2022) 3 SCC 321 and the Bharti Airtel decision (2011) 193 Taxman 97 (SC) : 2011 TaxPub(DT) 0394 (SC), both these decisions assessees will claim Zero taxability in India as in this case. *Case:* Avaya International Sales Ltd. v. ACIT 2023 TaxPub(DT) 1587 (Del-Trib)

The Tax Publishers

Taxability of software as royalty under Indo-Ireland DTAA Article 12.

Taxability of automated communication network support under Indo-Ireland DTAA Article 12.

Facts:

Assessee an Irish resident had sold communication software to various entities in India besides offering standard communication support and network connectivity and switching services to assessee's in India. Stand of the assessee was both were not taxable in India. On sale of communication software it was sale of copyrighted property akin to goods thus not taxable in India. On support services since these services were standard services with no human intervention were not taxable in India. CIT(A) upheld the software sale as not taxable in India basing Apex court decision of Engineering Analysis Centre of Excellence Pvt. Ltd. v. CIT and another (2022) 3SCC 321 and refused to accept the stand of the assessee on support services. On cross appeals by both revenue and by assessee -

Held in favour of the assessee basing Engineering Analysis Centre of Excellence Pvt. Ltd. v. CIT and another (2022) 3SCC 321 that the sale of software was not taxable in India.

Held against the assessee by remanding the case to AO for fresh consideration as to whether the standard services provided by assessee involved human intervention or otherwise. Decision of CIT v. M/s. Bharti Cellular (2011) 193 Taxman 97 (SC) : 2011 TaxPub(DT) 0394 (SC) also held that the topic needs expert intervention to decide whether human interface was necessary or otherwise to decide on taxability which was applied herein.

Ed. Note: The stand of both streams of income not being taxable needs a judicial arbitration sooner or later. Otherwise based on Engineering Analysis Centre of Excellence Pvt. Ltd. v. CIT and another (2022) 3 SCC 321 and the Bharti Airtel decision (2011) 193 Taxman 97 (SC) : 2011 TaxPub(DT) 0394 (SC), both these decisions assessees will claim Zero taxability in India as in this case.

Case: Avaya International Sales Ltd. v. ACIT 2023 TaxPub(DT) 1587 (Del-Trib)