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The Indian distributors have been granted a non-exclusive, non-transferable license to supply Adobe's software products in India;
 The arrangement and conduct between Adobe Ireland and the Indian distributors is on a principal-to-principal basis;
 Adobe Ireland retains exclusive ownership of the intellectual property rights vested in the software and trademark;
 Adobe's software products that are distributed by the Indian distributors are shrink wrap products. In other words, the Indian distributors have been granted the license to distribute shrink wrap software products to the end users in India, with the copyright in such software product being vested with Adobe at all times,  Distributors, their dealers and customers, have been prohibited from duplicating, reverse engineering, selling or licensing the software products or otherwise exploiting the copyright in the said software products, or using them for any purpose other than that set out in the agreement;
(viii) "Nature of Appointment: Subject to the terms and conditions set forth herein, Adobe hereby grants Distributor, and Distributor hereby accepts, a non-exclusive, non-

transferable license to supply the Software Products in the Territory, and this shall include the right to license Dealers to supply the Software Products in the Territory This Agreement is not to be interpreted or construed as an agreement between Adobe and Distributor for the sale or license of the copyright in the Software Products. Distributor shall advise its Dealers and other customers that Distributor has a license to supply the Software Products but not the copyright in the Software Product Distributor, its Dealers and customers' are prohibited from duplicating, reverse engineering, selling or licensing the Software Product or the copyright in the Software Product, or using the Software Product for any purpose other than as set out in this Agreement Without prejudice to the foregoing, Adobe reserves the right to: deal directly in the Software Products in the Territory, including the right to license End Users directly, via Internet distribution or otherwise; license other distributors for the Software Products in Ihe Territory; provide technical support in the Territory, and to enter into arrangements or agreements with third parties inducing but not limited to End Users, Dealers, OEMs, systems integrators or VARs in connection with the Software Products in the Territory.

5. Judgment of the Hon'ble ITAT Delhi Bench 'E' in the case of Black Duck Software Inc. v. Deputy Commissioner of Income-tax International Taxation, Circle 1(1)2, New Delhi [2017] 190 TTJ 284 (Delhi - Trib.)

11. Further drawing our attention to the relevant clauses of the agreement between the assessee and the Indian distributors, he pointed out that the Indian distributors have been granted a non exclusive, non transferable license to supply Adobe Software Products in India and the assessee retains exclusive ownership of the intellectual property rights vested in the software as well as in the trade mark. The software products have been distributed by the Indian distributors as a shrink wrap products and the Indian distributors have been granted the license to distribute shrink wrap products to the end users in India with copyright in such software vested with Adobe at all times. The distributors, the dealers and customers have been prohibited from duplicating, reverse engineering, selling or licensing the software products or otherwise exploiting the copyright in the said software products or using them for any purpose other than that set out in the agreement. There is no separate consideration payable by the Indian distributors for any right granted to distribute the software products in India. The payment at the most can be reckoned for acquiring the right to use the product itself without allowing any right in the copyright product. After referring to the Section 14 of the 'Copyright Act' and various exceptions carved out in Section 56 of the said Act, he submitted that none of the activities as enshrined in various clauses of Section 14 would apply. Thereafter, he referred to paragraphs 12 to 14 of OECD Model Tax Convention of 2010 and also UN Model commentary of Article 12, especially as given in paragraph 3 clause (12) and (13) and submitted that even under these commentaries; the nature of payment received by the assessee would not be treated as 'royalty'. The relevant extracts of the said commentaries were also filed before us. Thus, he submitted that now in the wake of plethora of judgment including that of the Hon'ble Jurisdictional High Court, the said payment cannot be treated as royalty, and therefore, same cannot be brought to tax in India.

"Software Products" means copies of the Software and tire User Documentation supplied to Distributor as shrink-wrap or TLP Products for the categories of Adobe Software listed in the License Fee Lists that arc supplied by Adobe to Distributor pursuant to this Agreement Software Products shall include TLP Products, End of Life Software Products, Upgrade Products, Unsaleable Software Products and Media."

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2.2 Nature of Appointment. Subject to the terms and conditions set forth herein, Adobe hereby grants Distributor, and Distributor hereby accepts, a non-exclusive, non- transferable license to supply the Software Products in the Territory, and this shall include the right to license Dealers to supply the Software Products in the Territory. This Agreement is not to be interpreted or construed ns an agreement between Adobe and Distributor for the sale or license of the copyright in the Software Products. Distributor shall advise its Dealers and other customers that Distributor has a license to supply the Software Products but not the copyright in the Software Product. Distributor, its Dealers and customers are prohibited from duplicating, reverse engineering, selling or licensing the Software Product or the copyright in the Software Product, or using the Software Product, for any purpose other than of set out in this Agreement. Without prejudice to the foregoing, Adobe reserves the right to: deal directly in the Software Products in the Territory, including the right to license End Users directly, via Internet distribution or otherwise; License other distributors for the Software Products in the Territory; provide technical support in the Territory, and to enter into arrangements or agreements with third parties including but not limited to End Users, Dealers, OEMs, systems integrators or VARs in connection with the Software Products in the Territory.