Cross-border payments for use of software not taxable as royalty: SC
March 02, 2021
Buyer only gets the right of use, not the intellectual property of the software
The Supreme Court today held that Indian companies need not deduct tax for the amount they pay foreign manufacturers and suppliers for use or re-sale of computer software through end-user licence agreements (EULA).
In a relief for Indian buyers, a three-judge Bench led by Justice Rohinton F. Nariman said the consideration paid by them for use or sale of computer software cannot be considered a payment of “royalty for the use of copyright in the computer software”.
No TDS required on import of shrink-wrapped software: Supreme Court
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No TDS required on import of shrink-wrapped software: Supreme Court
Lubna Kably / TNN / Updated: Mar 3, 2021, 08:10 IST
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MUMBAI: The Supreme Court (SC) on Tuesday ruled that payments made by resident Indian end-users or distributors (such as technology companies) to overseas suppliers on import of ‘shrink-wrapped’ software – generally known as off-the-shelf software, is not a ‘Royalty’ payment. Thus, no withholding tax obligations arise in India, against such payment.
During assessment and at various levels of judicial appeals, payments made for import of shrink-wrapped software to overseas suppliers was held assessable to tax as ‘Royalty’ under section 9(1)(vi) of the I-T Act and Article 12 of the respective tax treaties. This classification as ‘Royalty’ required tax to be deducted at source (TDS) when making payment to the overseas suppliers.