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5. The appeals filed by the Assessee for AY 2012-13 to 2014-15 being payments for the months April to March, 2015 and April to February, 2016 were decided by the CIT(A) by order dated 28.2.2017 and he held that the payments made to non-residents are chargeable to tax in India and hence liable for TDS u/s.195 of the Act. The said order was contested before the Tribunal (ITAT) by the Assessee and the Tribunal vide its order dated 28.9.2017 in IT(IT) A Nos. 999 to 1024/Bang/2017 remanded the matter to CIT(A) to consider the contentions raised by the appellant in support of the contention that the payments to non-residents are not chargeable to tax. The CIT(A) pursuant to the order of the Tribunal examined 26 appeals set aside to him by the ITAT along with 12 other appeals filed by the Assessee in respect of payments made for the April, to March, 2017. The CIT(A) passed a consolidated orders for the 38 appeals. On the basis of the classification and conclusions of the CIT(A), the payments by the Assessee IT(IT)A Nos.61 to 98/Bang/2021 M/s. Infosys Limited, Bangalore to the non-residents can be classified in the following three broad categories viz., (1) Payments for software license fee, access to various online databases, web hosting, cloud computing, cloud space hiring, access of hardware access through software, access to online software training, membership fees, subscription of RSA token involving the right of right to use the software. (2) Data connectivity charges (also known as Network connectivity charges, LAN connectivity charges, Link connectivity charges, Link charges etc., (3) consulting fees connected and interlinked with software or cloud services; (4) Legal fees, professional fees, training fees, certification fees, sub-contracting charges etc., (1) Payments for software licence fee, access to various online databases, web hosting, coud computing, cloud space hiring, access of hardware access through software, access to online software tranining, membership fees, subscription of RSA token involing the tright of right to use the software.

6. The CIT(A) first identified same payees each month for the aforesaid period and for identical services. This exercise has been carried out by the CIT(A) in paragraphs 10 to 366 of the impugned common order and in paragraph-367 of the impugned order, the CIT(A) has summarized the nature of payments to the non-residents as follows:

367. In the payments listed above, the majority of the payments are consideration paid for purchase of software, access to various databases, cloud computing, cloud space hiring, access of hardware overseas through software, access to online software training, etc. The argument of the appellant is that these payments are not in the nature of royalty. The grounds in this respect are therefore considered as under:

374. I find that the Appellant has not evaluated the grant of any right in terms of section 14(a)(iii) and 14(b)(ii) of the Copyright Act. I find that the grant of the license for the right to use or right to limited distribution is copyright in terms of section 14(a)(iii) and 14(b)(ii) of the Copyright Act."

9. The final conclusion of the CIT(A) on the issue is in paragraph 398 of his order which reads thus:

"In view of the above, the argument of the appellant that consideration paid for purchase of software, access to various databases, cloud computing, cloud space hiring, access of hardware overseas through software, access to online software training, membership fees, subscription of RSA token, etc. (involving transfer of the right to use the software) is not royalty is not acceptable. The grounds in this respect are therefore dismissed."

IT(IT)A Nos.61 to 98/Bang/2021 M/s. Infosys Limited, Bangalore which is a sine qua non for taxability under section 9(l)(vi) read with Explanation 2 (iva) thereto."

30. With regard to cloud computing/cloud hosting charges, the concept of Cloud computing is the delivery of different services through the Internet, including data storage, servers, databases, networking, and software. Cloud-based storage makes it possible to save files to a remote database and retrieve them on demand. Traditionally we store our data in our computer and can access the data only if the computer is available. In cloud computing the data is store in a server and can be accessed through any system. The Mumbai Tribunal in the case of Rackspace, US Inc. ITA No.1634/Mum/2016 and ITA Nos. 3507 & 1075/Mum/2017 order dated 29.5.2019 followed the earlier decision rendered in the case of American Chemical Society vs. DCIT in ITA No. 6811/Mum/2017 for the AY 2014-15 vide order dated 30.04.2019, wherein identical issue was decided in the context of right to use material in the form of journal,. The Tribunal held that the cloud hosting company creates / maintains information online and grants access to the journals, the assessee neither shares its experiences, techniques or methodology employed in evolving databases with the users, nor imparts any information relating to them. The terms of the agreement between the cloud host and the customer proider that the customer gets right to search, view and display the articles (whether online or by taking a print) and reproducing or exploiting the same in any manner for personal use. The customers do not get any rights to the journal or articles therein. It was held that there was No 'use or right to use' in any copyright or any other intellectual property of any kind is provided by the assessee to its customers. Furthermore, the information resides on servers outside India, to which the customers have no right or access, nor do they possess control or dominion over the servers in any way. Therefore, the question of such payments qualifying as consideration for use or right to use any equipment, whether industrial, commercial or scientific, does not arise. The tribunal thereafter applied the ratio to the case of the Assessee Rackspace, US Inc. and held that the IT(IT)A Nos.61 to 98/Bang/2021 M/s. Infosys Limited, Bangalore agreement between the assessee and its customer is for providing hosting and other ancillary services to the customer and not for the use of / leasing of any equipment. The Data Centre and the Infrastructure therein is used to provide these services belong to the assessee. The customers do not have physical control or possession over the servers and right to operate and manage this infrastructure / servers vest solely with the assessee. The agreements entered into the service level agreements. The agreement is to provide hosting services simpliciter and is not for the purpose of giving the underlying equipment on higher or lease. The customer is not even aware of the specific location of the server in the Data Centre where the customer application, web mail, websites etc. The tribunal therefore held that income from cloud hosting services was not royalty within the meaning of explanation (2) to section 9(1)(vi) of the Act as well as Article 12(3)(b) of the Indo-USA DTAA.