CIT v. MOL Corporation (2024)

☁️ CIT (IT) vs. MOL Corporation – Supreme Court on Non-Taxability of Software Sales and Cloud Subscription Fees under India–USA DTAA (2024)

📌 Background

The taxation of software sales and cloud-based subscription services under Indian income tax law has been a recurring issue, particularly regarding their classification as “royalty” under Section 9(1)(vi) of the Income-tax Act, 1961 and Article 12 of the India–USA Double Taxation Avoidance Agreement (DTAA).

In CIT (IT) v. MOL Corporation [(2024) 299 Taxman 506 (SC)], the Supreme Court dismissed the Revenue’s Special Leave Petition (SLP), thereby upholding the Delhi High Court’s decision that revenue from software sales and cloud computing subscription fees received by the U.S.-based company MOL Corporation was not taxable as royalty in India.

The ruling reaffirms the principles laid down in the landmark case of Engineering Analysis Centre of Excellence (P) Ltd. v. CIT (2021) 432 ITR 471 (SC), which established that payments for copyrighted software or online access do not amount to royalty if there is no transfer of copyright.

📂 Facts of the Case

• Assessee: MOL Corporation, USA
• Assessment Years: Notified (covering transactions during 2010–11 to 2017–18)
• Nature of Income:
  1. Revenue from sale of software to Indian clients.
  2. Subscription fees from Indian customers for access to cloud-based computing infrastructure.

Revenue’s Contention:

• The consideration received from both software and subscription transactions was royalty under Section 9(1)(vi) and Article 12 of the India–USA DTAA.
• The grant of rights to install and use the software and cloud systems involved use of intellectual property (IP) or copyright, thereby creating tax liability in India.

Assessee’s Argument:

• The transactions did not involve any transfer of copyright rights; only limited user rights were granted.
• Under the DTAA, only payments for the use of or right to use copyright qualify as royalty.
• In both the software and cloud service contexts, users merely accessed copyrighted technology — they did not exploit or reproduce it.

❓ Point of Dispute

Whether:

1. Revenue from sale of software constitutes royalty under Section 9(1)(vi) and Article 12 of the India–USA DTAA; and
2. Fees received from cloud-based computing subscriptions can be treated as royalty or fees for technical services (FTS) under Indian tax law.

📑 Submissions by the Assessee

• Software Licensing:
  • Indian customers received only non-exclusive, non-transferable rights to install and use the software.
  • They had no authority to reproduce, modify, or distribute the software.
  • The transaction was a sale of a copyrighted article, not a transfer of copyright itself.
• Cloud-Based Subscription Services:
  • The customers merely used online infrastructure and storage through subscription access.
  • The arrangement did not transfer or license any IP or technology.
  • Payments represented service fees for digital access, not consideration for the use of any copyright or patent.
• Reliance on Precedents:
  • Engineering Analysis Centre of Excellence (P) Ltd. v. CIT (2021) 432 ITR 471 (SC).
  • CIT (IT) v. Microsoft Regional Sales Pte. Ltd. (2024) 298 Taxman 3 (SC).
  • CIT (IT) v. FactSet Research Systems Inc. (Delhi HC, 2023).

📑 Submissions by the Revenue

• The software and cloud systems were intellectual property–driven, and access to them constituted use of copyright or patents.
• Even though end users had limited rights, the payments were functionally for the use of copyrighted material, thereby qualifying as royalty.
• The Department argued that Section 9(1)(vi) Explanation 2 has a wide scope, encompassing any transfer of rights to use software or technical infrastructure.

⚖️ Legal Principles & Court’s Findings

1. High Court’s Analysis

The Delhi High Court ruled in favour of the assessee, holding that:

• The right to install and use software does not equate to the right to use copyright under Section 14 of the Copyright Act, 1957.
• Customers received only restricted usage rights, not ownership or exploitation rights.
• Therefore, the revenue from software sales was not “royalty” under Section 9(1)(vi) or Article 12 of the India–USA DTAA.

Regarding cloud-based subscriptions:

• Subscribers accessed cloud computing infrastructure hosted abroad.
• The infrastructure was owned, operated, and controlled solely by the U.S. entity.
• Since subscribers did not acquire any right of reproduction, adaptation, or distribution, the subscription fees were not royalties but business income.
• As MOL Corporation did not have a Permanent Establishment (PE) in India, such income could not be taxed in India.

2. Supreme Court’s Decision

• The SLP filed by the Revenue was dismissed.
• The Court cited its earlier judgments in:
  • Engineering Analysis Centre of Excellence (P) Ltd. v. CIT (2021) 432 ITR 471 (SC).
  • CIT (IT) v. Microsoft Regional Sales Pte. Ltd. (2024) 298 Taxman 3 (SC).
• These decisions conclusively settled that payments for software and digital access services do not amount to royalty under Indian law or DTAAs.

🏁 Held

✅ Software sales: Revenue from granting limited rights to install and use software is not royalty; it is business income taxable only if a PE exists in India.

✅ Cloud-based services: Subscription fees for accessing cloud infrastructure do not constitute royalty or FTS; they are consideration for online access services.

✅ SLP dismissed: The Supreme Court upheld the Delhi High Court’s judgment, affirming non-taxability under the India–USA DTAA.

✅ Practical Impact on Taxpayers

• Definitive clarity: Confirms that neither software license revenue nor cloud subscription fees are taxable as royalty if users have no rights over copyright or patents.
• Relief for tech and SaaS companies: Major U.S. and global technology firms offering software or cloud services in India can rely on this ruling to avoid unnecessary TDS or tax demands.
• No TDS under Section 195: Indian payers need not deduct TDS on such payments made to non-resident service providers under similar arrangements.
• Encourages cross-border digital services: Promotes consistency with global tax norms for the digital economy.

🔑 Key Takeaways

1. Software licenses ≠ royalty: Restricted usage rights for software installation or use are not taxable.
2. Cloud subscriptions ≠ royalty or FTS: Online access without transfer of IP rights is service-based revenue, not royalty.
3. DTAA prevails over domestic law: Under Section 90(2), DTAA provisions providing relief override broader domestic definitions.
4. No PE, no tax: In absence of a PE, business income from such services remains non-taxable in India.

📢 Why This Case Matters

The CIT (IT) v. MOL Corporation (2024) decision consolidates judicial clarity on digital economy taxation, harmonizing India’s stance with international principles. It ensures that software and cloud service providers are not unfairly subjected to tax in India for mere access-based arrangements.

This judgment, read with Engineering Analysis (2021) and Microsoft Regional Sales (2024), provides a comprehensive legal framework for cross-border software, digital service, and SaaS transactions, ensuring predictability and treaty compliance.

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