2 July 2010,Friday Kapil Goel B.Com(H) FCA LLB Advocate Delhi ...

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AAR in Airport Authority case• Though in the 3rd ruling (304 ITR), certain reasons are given, it appears that the line ofreasoning adopted by AAR in that case is apparently at variance with the latest ruling inDassault Systems. In Dassault Systems (AAR No 821/2009)2 case, we have exhaustivelyconsidered various aspects of copyright in the context of royalty definition in the I.T.Actand Treaty. However, it must be pointed out that in Dassault Systems, the nature ofsoftware was different. It was standardized software of special purpose which had theintrinsic potential to generate the output without any further steps being taken before itis put to use, whereas in the present case, the software of the automation system doesnot by itself give rise to an output which can directly be put to use. The applicant hasstated that the software is customized in the sense that it requires site specificmodifications/adaptations, which are done at the spot. However, this point ofdistinction alone would not help us to distinguish the ruling in AAI’s case and inDassault Systems. Suffice it to state that some of the points and legal aspectshighlighted in Dassault Systems have missed the attention of this Authority and to theextent it goes against the principles laid down in the latest ruling in Dassault case, it isnot safe to decide the matter on a mere reiteration of the view taken in the 3rd AirportAuthority case….
AAR Software: Airport Athoritycase..• The crucial question is: What is the real nature andsubstance of the contract with which we are concerned?Can it be considered to be primarily a contract for thesupply of customized software or is it a contract that fallswithin the scope and sweep of royalty and includedservices dealt with under Art.12 of the India-US Treaty ?Section 9(1)(vi) & (vii) of the Income Tax Actcorresponds to Art.12 of the Treaty
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Page 80: Thank YouKapil Goelcakapilgoel@gmai
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2 July 2010,Friday Kapil Goel B.Com(H) FCA LLB Advocate Delhi ...

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