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17. In the backdrop of the above facts and the relevant clauses of the Agreement, the assessee has submitted that - i) the assessee is neither granted right to control any equipment, network, infrastructure etc. nor any right to modify the source code; ii) the source code behind any of the applications / software is accessed only by Symbiotics Ltd. UK and the assessee does not have any right to access, modify or duplicate such source code; iii) the assessee is not granted the right of commercial exploitation of the intellectual property / software contained therein; iv) the title/ownership and proprietary rights to the systems and software owned by Symbiotics Ltd. UK remain with it the assessee shall not reverse engineer, decompiled, disassemble the software or lease or sub-licence it to third parties and shall have no right to make copies, modify the said software etc. which means that the copyright in the software / systems shall continue to be owned by Symbiotics Ltd. UK; v) the infrastructure / software used by Symbiotics Ltd. UK for preparing the "Candidate written reports" is located, owned and managed by it outside India; vi) the assessee only receives a report / document which contains details of candidate's score against the measured attributes and provides an overall assessment of their likely performance against a given syllabus or training profile. The said deliverables in the form of candidate's report are provided to the assessee.

18. From the above, it is abundantly clear that the assessee is provided with a report / document by Symbiotics Ltd. UK containing the requisite details as per the terms of the Agreement. The assessee is not provided with access to any software of Symbiotics Ltd. UK. The candidate's report is delivered to the assessee electronically which is in the nature of copyrighted product and a mere access to use the server / software to download the reports cannot be regarded as transfer of any licence / copyright in the software so as to fall within the definition of "royalty" under Article 13 of the India-UK DTAA. What the assessee gets is merely the report in the form of deliverables prepared from the analysis undertaken by Symbiotics Ltd. UK using Adapt software. The source code of the software is accessed only by Symbiotics Ltd. UK and the assessee has no right to access, modify or duplicate such source code which is evident from clause vii of the Agreement. The assessee had not been granted the right of commercial exploitation of the IT/software contained therein. Further the infrastructure / software used for preparing the reports are located, owned and managed by Symbiotics Ltd. UK outside India and the assessee has no right to control the equipment / network / infrastructure etc. used by Symbiotics Ltd. UK. The software Adapt is being used to generate the required report after conducting evaluation on the basis of criterias provided by the assessee. In our considered view it cannot tantamount to granting of licence to the software and the right to use the IP of Symbiotics Ltd. UK. It can thus be concluded that there is no grant of licence to the assessee for any software which allows it to modify the source code. The assessee does not get any right to use the copyright in the software as it merely has access to the information / data processed by the software / application which is owned and executed by Symbiotics Ltd. UK in its server located in UK. What the appellant gets is only a copyrighted article to use the product for its internal business purpose and not any right in any copyright to exploit the same for commercial reasons so as to constitute the payment received in consideration thereof as royalty in terms of Article 13 of the India UK DTAA. Support may be drawn by the decision of the Apex Court in the case of Engineering Analysis Centre of Excellence Pvt. Ltd. vs. CIT 125 taxmann.com 42 (SC). In sum and substance what Symbiotics Ltd. UK is doing for the assessee is merely testing the ability of the candidates as per the parameters / standards of the assessee so as to ascertain whether the candidates meet the quality / performance criteria of the assessee. Having considered all the above aspects, we are of the view that the consideration paid by the assessee to Symbiotics Ltd. UK for provision of candidate's reports do not fall within the purview of royalty under Article 13 of the India- UK DTAA.