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2.5 Whether on the facts and in the circumstances of the case, Ld. ITAT was justified in not considering that both the OECD and UN adopt a dynamic approach instead of a static approach for the purposes of interpretation of Tax Treaties?"

4. However, before us it has remained undisputed that no rights in the copyright which existed in the software were transferred to the assessee. We have heard Mr. Bhatia, learned counsel appearing for the appellant at some length and who has also taken us through some of the conclusions which were recorded by the Commissioner of Income Tax (Appeals) ["CIT(A)"] including the observations as they appear in para 5.6. The aforenoted conclusions of the CIT (A) are reproduced hereunder:-
92. The licencees are not allowed to exploit the computer software commercially, they have acquired under licence agreement, only the copyrighted software which by itself is an article and they have not acquired any copyright in the software. In the case of the Assessee Company, the licencee to whom the Assessee Company has sold/licenced the software were allowed to make only one copy of the software and associated support information for backup purposes with a condition that such copyright shall include Infrasoft copyright and all copies of the software shall be exclusive properties of Infrasoft. Licencee was allowed to use the software only for its own business as specifically identified and was not permitted to loan/rent/sale/sublicence or transfer the copy of software to any third party without the consent of Infrasoft.
93. The licencee has been prohibited from copying, de- compiling, de assembling, or reverse engineering the software without the written consent of Infrasoft. The licence agreement between the Assessee Company and its customers stipulates that all copyrights and intellectual property rights in the software and copies made by the licencee were owned by Infrasoft and only Infrasoft has the power to grant licence rights for use of the software. The licence agreement stipulates that upon termination of the agreement for any reason, the licencee shall return the software including supporting information and licence authorisation device to Infrasoft.
94. The incorporeal right to the software i.e. copyright remains with the owner and the same was not transferred by the Assessee. The right to use a copyright in a programme is totally different from the right to use a programme embedded in a cassette or a CD which may be a software and the payment made for the same cannot be said to be received as consideration for the use of or right to use of This is a digitally signed order.