Allowing the appeal of the assessee the Tribunal held that ;  according to sub-clause (c) of section 9(1)(vi) , in the case of a non-resident, the burden is on the Department to prove that the royalty is payable in respect of any right, property or information used or services utilised for the purpose of a business or profession carried on by such person in India or for the purpose of making or earning any income from any source in India. In the absence of any such evidence filed by the Department, the original equipment manufacturers were not carrying on any business in India. Even for some of the years it was shown that the original equipment manufacturers were carrying on business in India but not with respect to the code division multiple access patent technology, those were all the evidence showing the business of the original equipment manufacturers for GSM technology. Therefore there was no evidence to suggest that the original equipment manufacturers who had made payments of royalty, were carrying on any business in India of the code division multiple access patent technology leading to their taxability in India. Therefore royalty income of the assessee earned from the original equipment manufacturers situated outside India for the patents licensed to the original equipment manufacturers for manufacture of the code division multiple access network outside India was not chargeable to tax under section 9(1)(vi)(c) . As the revenue was not chargeable to tax in India in terms of the Act the question of looking at the provision of article 12(7) of the Agreement did not arise. ( AY.2009-10 to 2012-13)