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the laws of that State concerning tax to which the Convention applies.

28. He referred to Article 2 of the Tax treaty and submitted that it lists the taxes to which the convention applies. In India, the Tax Treaty with USA applies only to Income tax. Therefore, Tax Treaty with the USA only authorizes recourse to the Income Tax Act for finding out the meaning of undefined terms.

No support from Copyright Act, Sale of Goods Act or even other tax laws like Sales Tax can be made. Therefore, the concept of "copyrighted article" borrowed from the proposed law of the US or the commentary to the OECD Model Tax Convention in the ITAT decision (confirmed by the High Court) in the cases of Ericsson/ Nokia etc. is clearly not authorized under the Tax Treaty. Therefore, these decisions are distinguished and not applicable in the present case. The term "copyrighted article" is not defined or recognized in the Act. The expression "use of, or the right to use any copyright" is not defined in the tax treaties. The term used in the expression are now explicitly defined in explanation 4 to Section 9(1)(vi) of the Act. Transfer of all or any rights in respect of any right , property or information includes and has always included transfer of all or any right for use or right to use a computer software (including granting of a license.)

Definitions - (Page 83 of PB-I) Product- "Products" means equipment, software and Ancillary program(s) as applicable.

Equipment- "Equipment" means Aspect proprietary hardware and third party hardware purchased from Aspect as specified on a Quotation. Software- "Software" means Aspect's proprietary computer program in object code form described on a Quotation. Software (and Ancillary Programs where applicable) also includes all fixes and new releases provided by Aspect (or its representatives) to customer, as well as copies thereof. Ancillary Programs- "Ancillary Programs" means a third party computer program(s) in object code form which is provided by Aspect for use with the software and Equipment.

These services entails resolving problems or bugs in the product which results in its functioning effectively, providing new releases and upgrades of the software, providing help desk services. These services are performed outside India by the Appellant and only in exceptional cases, where the end customer/ channel Partners insist on providing onsite support, ATC provides the support.

(iii)Professional Services- These services include telephone, e-mail and web support, software support by accessing site configuration to determine revision levels for the authorized software partners, software upgrades etc. It also includes wide range of classroom and computer based courses as well as custom courses tailored to meet unique training, schedule and location requirements that focus on the application and functionality of Aspect products. Revenue from professional services has been offered to tax by the assessee as FIS under Article 12 of the Tax Treaty.