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Clause (a) of paragraph 2.1 of Article 2 expressly provides that the Assessee "Shall promote, market and sell the Products in accordance with a business plan which shall be submitted to Trak within three (3) months of the effective date of the Agreement". Paragraph 4.2 entitles the Assessee to, inter alia, use the software and source codes for a limited purposes to sell and promote the software for use by third parties; demonstrate the software to third parties; and to customise the software for the purposes of End Users. The said agreement further contains a number of covenants to ensure that the Intellectual Property Rights in respect of the software, related material and source codes remains with THPL. A plain reading of the aforesaid agreement indicates that the Assessee has appointed for the purposes of reselling THPL's software.

8. Ld. DR has submitted that the Tribunal had not decided the issue of 'royalty' based on alternative position taken by the Assessing Officer which included PMS software as a patent/process/equipment, etc., and he has highlighted that in this case the payment is also for the consideration for use of 'process'. However, from the reading of the impugned assessment order, we find that it is not the case of the Assessing Officer that the software sold by the assessee involves any kind of 'process'. Assessing Officer has by and large discussed the various judgments and the stress upon the fact that the consideration is vis-a-vis for the use of; or the right to use as given in Article 12(3) and Indo-US DTAA and Explanation 4 to Section 9(1)(vi). It is not in dispute that the assessee is into the sale of project management software licenses to various customers and is providing copyright product on the sale basis. This software is downloaded from the internet and products with the licenses extended with the same and are basically in the nature of sale of Shrink wrapped software. No source code or any authority is extended to the customers for making any changes, duplication of the standard software products and it merely gives user license and no substantial right to reproduce or copyright software is given to the customers. Only restricted rights have been given to the customers. In any case, any retrospective amendment brought in the statute cannot be read into the articles of DTAA when no corresponding management in the bilateral treaty have been made. This precise issue stands covered by the decision of Hon'ble Jurisdictional High Court in the case of Nokia Networks OY and DIT vs. Infra Software (supra).