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51. Neither GIPL nor GIL acquires any right in the source code of the software operated by the Assessee. The licence granted to GIL/GIPL to use the Assessee's platform or its services, is limited to the term of the license. Neither GIPL nor GIL are granted any right to technology or source code of the software which would enable them to absorb the technology and independently exploit the same. Thus, whilst the Assessee renders services and grants access to its e-platform as part of its services, it does not make available any technical experience, skill, knowhow or process to GIPL or its client GSK. Thus, the services rendered by the Assessee do not satisfy the Clause (c) of Paragraph 4 of Article 13 of the India-USA DTAA.
54. Mr Aggarwal's contention that in terms of Articles 5B and 5A, the Assessee provides training to the employees of GIPL and the same would amount to making available technical skill and knowhow to GIPL, is also unmerited.
55. In terms Paragraph 5.6 of the MPA, OB10 is obligated to "provide training to full time employee of the Partner to enable them to promote and use the OB10 Services". The training contemplated is only for the purpose of using the platform and software in terms of the license granted by the Assessee. The training is not for imparting technical knowhow or knowledge which is involved in rendering the services. As noted above, the Assessee provides the access of its e-portal and uses the software for generating the einvoices. The training as contemplated in Paragraph 5.6 is for using the software and e- platform, and not for the transfer of any technology, knowhow or source code of the software, which would enable the service recipient (GIPL) or its employees, who had received training to use the software, to continue rendering the services of generating of e-invoices after its license is terminated. There is neither the transfer of knowhow nor any training that makes available the technical knowledge, skill, knowhow or process used or involved in rendering the technical services.