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2.19 Perusal of sectlon-15.1 of the agreement reveals that the appellant has not received any right for transferring the software license or decompiling, reverse engineering, or disassembling it. The appellant has also got no power to decode the machine code of software. The appellant has got no power to make copies of software except for backup purposes. From the section-15.1 of the agreement, it is very apparent that the appellant has got the right to use software for Its business or personal purposes and has obtained no other rights.

2.31 Examination of the agreement of the appellant with LTGL reveals that section-15 of the agreement quoted earlier forbids the appellant from transferring, assigning, sublicensing or using 21 Reliance and Lucent Group by outsourcing the software. The agreement also forbids the appellant from decompiling, reverse engineering, disassembling or decoding the software. Section-15 also contemplates that all copies of the software provided to the appellant are the copyright of LTGL. These copies shall be held secret and software shall not be disclosed to anybody else. Agreement provides that all copies of software shall be returned to LTGL upon termination or cancellation or the agreement. Agreement also provides that the appellant shall use the software only for the operation of wireless Reliance network and shall not sublicense or modify the software. The perusal of section-15 of the agreement clearly reveals that the appellant has got a copy of software for being used in its telecom network. The appellant has got no right as envisaged in section-14 of the Copyright Act to duplicate the software, to Issue copies of software in public or to give copies of software in rent or even to reverse engineer, decompile or modify the software. The sum total of the conditions mentioned in the section-is is that LTGL has given no part of Copyright as envisaged in section-14 of the copyright to the appellant. Thus, sale of software by LTGL to the appellant cannot be said to be the transfer of the copyright to LTGL either in part or in whole. Thus, consideration paid by the appellant to LTGL for acquiring copy of software is not for the use of copyright or transfer of right to use of copyright. As mentioned above, copyright is different from the work In respect of which copyright subsist. The appellant has only got a copy of software without any part of the copyright of the software. Thus, payment made by the appellant for acquiring copy of software does not amount to royalty within the definition of Article-12(3) of the DTAA. 2.32 Similar issue that whether the supply of a copy of software programme without transfer of any part of copyright amounts to royalty or not has been considered by various benches of ITAT recently. Hon'ble ITAT, Bangalore Bench in the case of Samsung Electronics Co. Ltd. Vs. ITO 93 TTJ 658, 276 ITR (AT) 1 has had a occasion to consider the similar case. It was held in the case that the definition of royalty u/s.9(1)(vi) is wider than the definition of royalty in various DTAA. Since the provisions in the DTAA have to be followed, if they are more beneficial to the taxpayer then the definition of royalty in DTAA has to be considered. Hon'ble ITAT had observed that as per the agreement between the parties is case the taxpayer had acquired only a copy of the software or the copyright article whereas the copyright remained with the owner i.e. foreign party. It was held that upon the sale of copyright article incorporeal right to software i.e. copyright was not transferred to the assessee. It was held that right to use of a copyright is totally different from right to use the programme embedded in a cassette or CD or it may be a software. It was held that the sale of copy of copyright article called software did not amount to royalty within the definition of Article-12(3) of the Indo-US DTAA. Reliance was placed on the decision of Hon'ble Supreme Court in the case of Tata Consultancy Services 271 ITR 401.