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3.4.3 The other major contention of appellant is that the amendment in the Act cannot he read into the treaty to determine the nature of payment as Royalty under the DTAA. We have considered the decisions relied by appellant in support of this contention including the decision of jurisdictional high court in case of Siemens Aktiengesellschaft 310 ITR 320(3om). It is noted that the retrospective amendment in explanation 5 has only clarified the meaning of Royalty. It has not a: all expanded the scope of royalty. The clarification was made to remove the conflicting views on effect of location/possession/control/delivery/use of the royalty rights etc. by the user in India without Rackspace, US Inc ITA s No . 1 63 4/ Mu m/ 2 01 6 , 35 0 7 & 1 07 5/ Mu m/ 2 01 7 bringing any fresh item to be taxable s royalty. It is for this reason the amendment is retrospective and starts with clause "for removal of doubt it is clarified". Hence by amendment it is not that the definition of Royalty is being enlarged. It is also not a case where items not taxable under DTAA are being now taxed under the Act. Definition of Royalty in DTAA and Act are Pari material as recently held by Madras High court also in case of Poompuhar Shipping 360 ITR 257 and Verizon Communication Singapore Pte 361 ITR 474 (Mad). Art 3(2) of DTAA stipulates that any term not defined shall have meaning as assigned under Act. As per section 90(2), provisions of DTAA shall apply if they are more beneficial in case there is conflict between DTAA and Act. There can be no dispute that for tax liability of any item beneficial provision has to be given preference. But there it is not a case of conflict of brining a new item of taxation or creating a fresh tax liability under Act in respect of Royalty payments which is otherwise not taxable under DTAA. Rather it is a case of Clarificatory only wherein the expression 'right to use', which is used both under the Act and DTAA in the context of Royalty, has been explained to be fulfilled whether or not, the location/possession/control/delivery/use of the rights, property or equipment, etc. by the user Rackspace, US Inc ITA s No . 1 63 4/ Mu m/ 2 01 6 , 35 0 7 & 1 07 5/ Mu m/ 2 01 7 was in India. Thus in absence of any clarification in DTAA in respect of location /possession /control /delivery /use of the royalty rights etc. by the user in India for ascertaining the meaning of Royalty, the conditions as per explanation 5 has to be read into for purposes of DTAA also in view of article 3(2) provided within the DTAA itself.