Where the applicant entered into a contract with Raytehon USA for the acquisition of hardware and customized software and the title to the hardware was to pass outside India and all activities under the contract (except for installation and support activities) were to be performed by Raytheon outside India, HELD:
(i) The profits on sale of hardware are not assessable to tax in India in the absence of a PE;
(ii) As regards the profits from supply of documents and software, as there was a mere right to use and not an outright sale of the same, it constitutes “royalty” u/s 9 (1) (vi) and Article 12 of DTAA;
(iii) The judgement of the Supreme Court in Tata Consultancy Services that once software is put on a CD it becomes a sale of goods is not applicable as it is rendered under the sales-tax Act. Under the I. T. Act, right to use software is ‘royalty’ irrespective of the fact that it is on a CD.
(iv) Profits from installation, testing and training services are chargeable as “fees for technical/included services”.