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5. The appeals filed by the Assessee were decided by the CIT(A) by consolidating the 23 appeals filed for the period comprising of months April, 2017 to February, 2019 (23 months). The CIT(A) passed a common order for all the 23 appeals. On the basis of the classification and conclusions of the CIT(A), the payments by the Assessee 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) Data Centre Racks and Links Fees: (4) consulting fees connected and interlinked with software or cloud services; (5) Legal fees, professional fees, training fees, certification fees, sub-contracting charges etc., IT(IT)A Nos.2145 to 2167/Bang/2019 M/s. Infosys Limited, Bangalore (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 299 of the impugned common order and in paragraph-300 of the impugned order, the CIT(A) has summarized the nature of payments to the non-residents as follows:

"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:
"331. 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."

(2) Data connectivity charges (also known as Network connectivity charges, LAN connecticity charges, Link connectivity charges, Link charges etc., and (3) Data Centre Racks and Links Fees:

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 IT(IT)A Nos.2145 to 2167/Bang/2019 M/s. Infosys Limited, Bangalore 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 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.