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S. No. Nature of service rendered Basis for Taxation Amount (INR) Access to data center for Royalty under section 9(1)(vi)

1. 1,90,33,349 data storage facility of the Act and under Article Provision of advertisement 12(3) of India - Singapore

2. 6,09,254 space DTAA.

12. The ld AR stated that the assessee has provided Criteo India with online data storage facility in such data center outside India and the assessee does not have any data center or any other equipment in India. Criteo India has been provided with login credentials for it to remotely access only the data stored in relation to Criteo India's advertisers, which is used by Criteo India to render advertising services to its customers. There is no software or application provided by the Assessee to Criteo India. Further, there is no human intervention involved in the provision of data center related services by the Assessee to Criteo India. Further, Criteo India does not entail any physical access or possession or control over the data center or the server or any other related equipment of the Assessee. The assessee only provides a remote access to Criteo India for storage and retrieval of its data/business information. Thus, Criteo India does not own/control the underlying equipment/hardware or the software. They can only use the services through the internet for accessing the data stored in relation to its customers.

S. No. Case Law Forum Findings of the Court / Tribunal Delhi HC: Right of subscription to a cloud-

Delhi based software cannot possibly be said to ITATaffirmed by be equivalent to the 'use' or 'right to use' Salesforce.com the Delhi High any industrial, commercial or scientific

1. Singapore Pte.

                          Court([2024]    equipment.
         [2022] 137

         taxmann.com 3
                          taxmann.com     Delhi ITAT:Subscription fees received for
                          580)            providing CRM services and access to
                                          database   for storage,       retrieval  of


                                              proprietary data /      generating    desired
                                              reports not royalty.
                                              Cloud based services do not involve any
                                              transfer of rights to the customers in the
                           Delhi ITAT         process nor does it provide any right of
     Microsoft Regional    affirmed by        reproduction to the subscriber. Such
     Sales Pte. Ltd.       the Supreme        services merely facilitate the flow of user
2.                         Court of India     data from the front-end user through
     [2022]145             SLP (C) Diary      Internet to the provider's system and back.
     taxmann.com 29        No(s).             Accordingly, subscription fee charged is not
                           7916/2023          royalty but merely a consideration of online
                                              access of the cloud for process and storage
                                              of data to run the applications.
                                              Payments received for cloud computing
     Amazon Web                               services (AWS)not taxable as Royalty/FTS,
     Services                                 since standard and automated services
3.                         Delhi ITAT         provided with no customization for any
     [2023] 153                               particular customer. Also, customers did
     taxmann.com 45                           not receive any right to use copyright or
                                              other IP involved in AWS service.
     Reasoning Global E-
                                              Cloud based services do not involve any
4.   Application Ltd.      Hyderabad
                                              transfer of rights. Hence, not taxable as
     [2022] 145            ITAT
                                              Royalty.
     taxmann.com 464
                           Delhi ITAT
     MOL Corporation       affirmed by        Subscription fees received for online access
5.   [2022]                the SC of India    of cloud computing services not taxable as
     140taxmann.com        SLP Appeal (C)     royalty as subscribers did not get any right
     121                   No(s). 5857 of     of reproduction of patent / copyright.
                           2023)
     Dow Jones &
                                              Payment made for access to database is not
6.   Company Inc.
                           (Delhi ITAT)       taxable as 'royalty' since such services do
     [2022] 135
                                              not result in transfer of a copyright.
     taxmann.com 270
                                              Payment for storage and retrieval of data is
     Vishwak Solutions
                                              towards hiring of storage space and not
7.   (P.) Ltd.
                           (Chennai ITAT)     taxable as 'royalty' and can only constitute
     [2015] 56
                                              business income which in the absence of PE
     taxmann.com 158
                                              cannot be taxed.

25. We find that the assessee has provided Criteo India with data storage facility in such data center outside India and the Assessee does not have any data center or any other equipment in India. Criteo India has been provided with login credentials for it to remotely access only the data stored in relation to Criteo India's advertisers, which is used by Criteo India to render advertising services to its customers. There is no software or application provided by the assessee to Criteo India. Further, there is no human intervention involved in the provision of data center related services by the assessee to Criteo India. Criteo India only has the right to remotely access only the data stored in relation to Criteo India's advertisers, which is used by Criteo India to render advertising services to its customers. The assessee has not placed any equipment in India nor has put the placed the equipment under the control/possession of Criteo India. These facts have not been controverted by the ld DR.