Kony Inc. v. DCIT (2023) 199 ITD 427 (Delhi) (Trib.)

S. 9(1)(vii):Income deemed to accrue or arise in India-Royalty-Fees for technical services-Computer software-Use of standardized software through EULA agreements which were non-exclusive and non-transferable-Payment is not in nature of royalty-Not taxable in India-DTAA-India-USA. [S.9(1)(vi), Art. 12(4)(b)]

 Assessee a US resident, had entered into end user licence agreement (EULA) with customers in India in terms of which assessee had granted licence to use certain standardized software to customer and received certain amount of consideration. Licences provided to end users were non-exclusive and non-transferable. End users of licnese did not have any access to source code, nor there was any transfer of right in process or use of any process. Limited right granted to customers under EULA was to use software for their own internal purposes. Amount received by assessee is  not in nature of royalty, hence, not taxable in India. (AY. 2017-18)