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8. Before us, the ld. Sr. counsel for the assessee submitted that as per the terms of the agreement, the licences granted were on non-transferrable and on non-exclusive basis. Apart from that, the title of ownership was to remain with the assessee and ONGC had no right to sell or sub-license to any third party. This was pointed out from clause (4)(iii) of the Agreement. As per the agreement the licence was to be used only for internal purposes which are evident from clause (6) of the Agreement. Source code was last issued in 1997 only for the internal use by the ONGC and, thereafter, the software has been made available purely on licence basis. The source code of CMG software had not been made available to the assessee and the software licences have been transferred upon payment of licence fee. Thus, considering the fact that in terms of the agreement the assessee did not 440 & 6170/Del/2012; & 1892 & 1965/Del/2014 transfer any right to exploit copyright in the software to ONGC, as per the provisions of section 14 of the Copyright Act, 1957, the consideration received was in lieu of providing only right to use copyrighted article as against the right to use the copyright. Under Article 12(3) of India-Canada DTAA, the payment can be taxed as 'royalty' only when there is right to use the copyright. Thus, under the Treaty, the entire consideration received during the year cannot be taxed as royalty. In support, reliance was placed on various decisions of the Tribunal as also the Hon'ble Delhi High Court. Some of them are as under:-

9. Regarding the sharing of source code of software for internal operation would not be taxable as process or copyright or royalty, strong reliance was placed on the judgment of ITAT, Mumbai Bench in the case of ADIT vs. Baan Global B.V. (2016) 49 ITR (T) 73 (Mum). Lastly, it was submitted that in so far as the amendment brought by the Finance Act, 2012, wherein Explanation 4 has been inserted with retrospective effect, which brings into the consideration received for right to use the computer software within the ambit of 'royalty' as contained under that section, now, it is the settled proposition by various courts including that of the Delhi High Court that the said amendment to section 9(1)(vi) cannot be read into the definition of 'Royalty' as contained under the DTAA. In support, he relied upon DIT vs. New Skies Satellite B.V. & ors. (2016) 382 ITR 114.