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10. The learned counsel further submitted that all these terms and conditions as enshrined in MSA will only go to show that the assessee does not in any manner give any right to use any copyright embedded in the software or to make copies or sell the software and only leant right to access/use the software for its own business purpose. WIPRO/IBM does not get any right per se in the software and, hence, such a payment cannot be treated as royalty. He contended that 'royalty' as per DTAA is different from the term 'royalty' as defined under the Indian IT Act, which has a much wider scope. Further, access to the software/network access is not a "process" as referred by the learned AO, because the assessee has not allowed WIPRO/IBM to use the "process" by using the software as they do not have any access to the source code. What is allowable for their use is their software product as such and not a "process" embedded in it. In any case, he submitted that by making use of or having access to the computer programs embedded in the software, it cannot be said that WIPRO/IBM are using the process the process that has gone into the software or that they have acquired any rights in relation to the process as such. Lastly, he contended that access to software/network is not the use of copyright but the use of copyrighted article and, further referring to the relevant definition in section 13 & 14 of the Copyright Act, he submitted that there is no use or M/s Shell Info rm ation Technology Internati onal BV , A .Ys. 9-10&10-11) right to use of any copy right and does not fall within the ambit of royalty as covered under DTAA. In support he relied upon the following decisions before us:-

"The term "royalties" as used in this Article means payments of any kind received as a consideration for the use of, or the right to use, any copyright of literary, artistic or scientific work including cinematograph films, any patent, trade mark, design or model, plan, secret formula or process, or for information concerning industrial, commercial or scientific experience.

From the plain reading of the article it can be inferred that, it refers to payments of any kind received as a consideration for the use of, or the right to use any 'copyright' of literary, artistic or scientific work including cinematograph films, any patent, trade mark, design or model, plan, secret formula or process, or for information concerning industrial, commercial or scientific experience. Thus, in order to tax the payment in question as "royalty", it is sine qua non that the said payment must fall within the ambit and scope of Para4 of Article 12. The main emphasis on the payment constituting 'royalty' in Para4 is for a consideration for the 'use of' or the 'right to use' any copyright.......... The key phrases are "for the use" or "the right to use any copyright of"; "any patent......., "or process", "or for M/s Shell Info rm ation Technology Internati onal BV , A .Ys. 9-10&10-11) information.........,"; "or scientific experience", etc., are important parameter for treating a transaction in the nature of "royalty". If the payment doesn't fit within these parameters then it doesn't fall within terms of "royalty" under Article 12(4).The computer software does not fall under most of the term used in the Article barring "use of process" or "use of or right to use of copyrights" Here first of all, the limited use of software cannot be held to be covered under the word "use of process", because the assessee has not allowed the end user to use the process by using the software, as the customer does not have any access to the source code. What is available for their use is software product as such and not the process embedded in it. Several processes may be involved in making computer software but what the customer uses is the software product as such and not the process, which are involved into it. What is required to be examined in the impugned case as to whether there is any use or right to use of copyright? The definition of copyright, though has not been explained or defined in the treaty, however, the various Courts have consistently opined that the definition of "copyright "as given in the 'Copyright Act, 1957' has to be taken into account for understanding the concept. Section 14of the said Act defines the 'copyrights' to mean as under:

M/s Shell Info rm ation Technology Internati onal BV , A .Ys. 9-10&10-11)

14. Further by making use or having access to the computer programs embedded in the software, it cannot be held that either WIPRO/IBM are using the process that has gone into the software or that they have acquired any rights in relation to the process as such.

The software continues to be owned by the assessee and what WIPRO/IBM is getting mere access to the software. The source code embedded in the software has not been imparted to them. Hence, there is no use or right to use of any process as held by the learned AO. Hence, the finding of the learned CIT(A) that the payment in question cannot be reckoned as "royalty" is factually and legally correct and the same is upheld.