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use" any industrial, commercial or scientific equipment as per Explanation 2 to section 9(1)(vi) of the Act.

ii. Whether on the facts and circumstances of the case, the CIT(A) has erred in holding that the software supplied by the assessee was a copyrighted software and that was no indication that the source code was transferred to M/s ONGC which is contrary to the facts of the case.

iii. Whether on the facts and circumstances of the case, the CIT (A) has erred in holding that the income of the assessee was taxable under the presumptive provisions of sec 44BB and ignoring the fact that taxability under section 44BB shall not apply in respect of income referred to in section 44D/44DA or where provisions of section 115A or 293 A applied, in view of the clarificatory proviso to sec 44 BB and sec 44DA.

5.1 It is also observed from a reading of the contract documents that the instant software is a highly specialized tool for the prospecting of mineral oils whose copyright is held by the appellant. There is no indication that the "source code" of the software is transferred to Midland Valley Exploration Ltd.

M/s ONGC, rather they are merely its users. Thus, the receipts cannot be termed as "royalty" within the meaning of Sec. 9(1)(vi) of the Act. Thus, to this extent the appellant's contention is acceptable. This finding disposes of ground numbers 2 and 4 in favour of the appellant.