INCOME TAX ACT, 1961

Section 90

Double taxation relief - DTAA between India and Switzerland - Royalty -

Assessee a company based at Switzerland was engaged in providing market research report on pharmaceutical sector to its customers across the world at a predetermined subscription prices, The company collected processed and utilized the data and information, particularly in the field of medicine and pharmaceuticals for delivery of reports through online IMS knowledge link. The company entered into agreements with its customers for providing the review reports (IMS reports) setting out details of modules required to be accessed by the customers and consideration for these services. The licence access so granted was a non-exclusive and non-transferable right. AO treated consideration received by assessee as royalty under section 9(1)(vi) as also under article 12(3) of Indo-Swiss DTAA.Held: Assessee's case was not a case of paying consideration for use of or right to use any copyright of literary, artistic or scientific work or any patent trade mark or for information of commercial experience. Assessee did not have any server in India for use of IMS. Indeed, assessee had specifically averred that copyright in IMS would neither be licenced nor assigned to the Indian customers. Accordingly, payment received by assessee could not be taxed as royalty.