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BMC Software Asia Pacific Pte Ltd.,

7. The taxability of the amount under the Act can be considered only in hue of section 9(1)(vi) defining the term `royalty‟. Explanation 4 clarifies that `the 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 licence) irrespective of the medium through which such right is transferred‟. The Hon‟ble Supreme Court in Engineering Analysis (supra) has further held that Explanation 4 to section 9(1)(vi) inserted vide the Finance Act 2012 is not clarificatory as it expands the scope and hence prospective. The assessment year under consideration is 2010-11 and hence the Explanation cannot apply to the facts of the case.