亚马逊因云计算服务收取的款项既非特许权使用费也非技术服务费（FTS）

由以下机构裁定：

德里高等法院

案件背景

所得税专员（国际税务-1）诉亚马逊网络服务公司 (Amazon Web Services, Inc)

(ITA 150/2025 & CM APPL. 29405/2025)

纳税人为一家在美国注册成立的公司，并拥有该国的税务居民身份。纳税人从印度实体处获得了一笔款项，用于提供云计算服务。税务评估官 (AO) 认为，根据该法案以及《印度-美国双重征税避免协定》(DTAA)，该笔款项应作为特许权使用费和技术服务费 (FTS) 征税。

Hon’ble High Court held that services offered by the Assessee are standardised services that can be availed by any of its customers. The Assessee operates a cloud computing platform, which essentially comprises hardware as well as software. The Assessee’s customers do not acquire any right to use the infrastructure and software of the Assessee for the purposes of commercial exploitation. The charges paid by the Assessee’s customers are for availing services, which the Assessee provides by using its proprietary equipment and other assets. No part of its equipment or IPRs is alienated by the Assessee in favour of its customers for their use. 

因此，所收取的款项不能被视为《印度-美国双重征税避免协定》第 12(3) 条所指的特许权使用费。据此，上诉被驳回。

1. 案情简介：

• 亚马逊网络服务（“纳税人”）是一家在美国注册成立的公司，并拥有该国的税务居民身份；

• 纳税人从印度实体处获得了一定金额的款项，用于提供云计算服务。

• 根据税务评估官的意见，该笔款项根据该法案以及《印度-美国双重征税避免协定》(DTAA)，应作为特许权使用费和技术服务费 (FTS) 征税。

• 纳税人辩称，这些收入是提供标准云计算服务的对价，既不属于特许权使用费，也不属于技术服务费。因此，纳税人未进行申报。此外，纳税人的客户在汇款时也未根据该法案第 195 条扣缴税款，原因相同。

• 税务评估官 (AO) 根据该法案第 148 条发出通知，并启动了 2014-15 和 2016-17 评估年度的重新评估程序。

• 税务评估官下达了评估草案，对纳税人的总收入进行了评估。纳税人向争议解决小组 (DRP) 提出异议，但被驳回。根据该指示，税务评估官下达了最终评估令，并确定了纳税人的应纳税所得额。

• 纳税人就该裁定向上诉法庭 (ITAT) 提起上诉。上诉获得支持，ITAT 撤销了评估令，认定纳税人收取的款项既不属于特许权使用费，也不属于技术服务费。

• 据此，税务部门向德里高等法院提起诉讼，对 ITAT 的裁定提出质疑。

2. 相关法律摘录

相关法律条款重述如下，以供参考：

1. 《印度-美国双重征税避免协定》第 12 条相关摘录：

“3. 本条所称“特许权使用费”是指：

(a) 因使用或有权使用文学、艺术或科学作品（包括电影、或用于广播电视的电影、磁带或其他复制媒介的作品）的任何版权，任何专利、商标、设计或模型、计划、秘密配方或工艺，或因提供有关工业、商业或科学经验的情报而收取的任何形式的款项，包括因转让任何此类权利或财产而获得的、且取决于生产力的收益，

use, or disposition thereof, and

(b) payments of any kind received as consideration for the use of, or the right to use, any industrial, commercial, or scientific equipment, other than payments derived by an enterprise described in paragraph 1 of Article 8 (Shipping and Air Transport) from activities described in paragraph 2(c) or 3 of Article 8.

“4. For purposes of this Article, “fees for included services” means payments of any kind to any person in consideration for the rendering of any technical or consultancy services (including through the provision of services of technical or

other personnel) If such services:

(a) are ancillary and subsidiary to the application or enjoyment of the right, property, or information for which a payment described in paragraph 3 is received; or

(b) make available technical knowledge, experience, skill, know-how, or processes, or consist of the development and transfer of a technical plan or technical design.”

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3. Contentions of the Assessee

The Assessee contended that:

• It has standardized and automated cloud computing services to its customers, and any person desiring to avail such services is required to enter into a standardized contract electronically, in respect of the said services. 

4. Contention of the Revenue

The Revenue contended that:

• It has examined certain clauses of the Agreement and concluded that the Assessee is providing a host of services / intellectual property to its customers. 

• The Assessee provides the customers with Services Offerings and Application Program Interface [API] to enable the customers to develop further content and use existing content for their business. 

• In terms of the Agreement, service offerings mean Services (including associated APIs), the “AWS Content”, the “AWS Marks”, and the “AWS Site”. Further, the Agreement also includes a provision for support services to be rendered by the Assessee.

• Therefore, the AO held that the Assessee was providing technical support to its customers and also making available technology, and therefore, the fees received by it were taxable as FTS under the Act as well as FIS under Article 12 of the India-US DTAA. 

• Also, the Service Offering covered trademarks, service marks, and concluded that the Assessee was providing copyright and trademark services to its customers for commercial exploitation and therefore, qualifies as royalty.

5. Order of the Hon’ble ITAT

The Hon’ble ITAT held that:

• The Agreement did not entail transfer of any technology, skill, technical know-how, or process with the meaning of Article 12(4)(b) of the India-US DTAA. 

• The same also did not entail transfer of any right to commercially exploit the Assessee’s Intellectual Property Rights [IPR]. 

• Thus, the consideration for cloud computing services does not constitute royalty within the scope of Article 12(3) or 12(4)(a) of the India-US DTAA.

6. Analysis & Findings by the Hon’ble High Court

Hon’ble High Court made the following findings and analysis:

• The principal issue in the given case is whether the amounts received by the Assessee from Indian entities for providing its services are taxable under the Act. The AO initiated reassessment proceedings after receiving information from one of the service recipients that foreign remittances were made to the Assessee towards “Hosting and Bandwidth Charges” without deducting any withholding tax.

• In the given case, the AO has not proposed to tax any business income attributable to the Assessee’s permanent establishment [PE] in India. There is no allegation that the Assessee has a PE in India. 

• The controversy is whether the amounts received by the Assessee for its services could be termed as ‘FTS’ or ‘royalties’.

• It is necessary to understand that the services offered by the Assessee are standardised services that can be availed by any of its customers. The Assessee operates a cloud computing platform, which essentially comprises hardware as well as software. 

• The Assessee provides cloud services for its customers to build and develop their content. 

• Admittedly, the Agreement does not entail transferring of any skill, knowledge, or know-how by the Assessee to its customers, but lends support to its customers for the purposes of enabling the customers to use its cloud computing platform.

• As per the Agreement, ‘Service Offerings’ are defined as:

“Service Offerings” means the Services (including associated APIs), the AWS Content, the AWS Marks, the AWS Site, and any other product or service provided by us under this Agreement. Service Offerings do not include Third Party Content.”

• As per the agreement, the customer can access and use the cloud computing service; they do not acquire any right or title or any IPR that would entitle them to exploit or commercially monetize the said assets on their own.

• Further, the Agreement spells out that the customers are solely responsible for the development, content, operation, maintenance, and use of their Content. 

• The AO has held that “Service Offerings” mean the AWS content, the AWS Marks, the AWS Site, and other services provided under the Agreement.

• As per the agreement, the AWS Content is made available by the Assessee only in connection with its services or on the AWS Site to allow access to the services.  However, the customers are not provided any right to commercially exploit the same.

• AWS Content is provided only to allow access and use of its services. The same would include documentation, sample code, software libraries, command line tools, and other related technology.

• Thus, the said content is confined to facilitate the access and avail the Assessee’s services. It would be erroneous to assume that the Assessee derives any proprietary right in respect of the AWS Content.

• As per the Agreement, the services offered by the Assessee do not entail transferring of any skill, knowledge, technology, or process to its customers. The cloud computing models indicate that the Assessee has developed an infrastructure and permits the customers to access the hardware and software for developing their content.

• There is no cavil that the customers do not control the cloud computing hardware or software. They also have no right to commercially exploit the same.

• The expression “use” or “right to use” as mentioned in Article 12(3) of the India-US DTAA is to be used narrowly. The scope of royalties under Article 12(3) of the India-US DTAA does not extend to cover charges for services, which are delivered by an assessee by use of scientific equipment. 

• In the present case, it is clear that the cloud computing hardware and software are used by the Assessee to render its services, which are availed by its customers.

• The AO’s conclusion that the provision of such service would amount to grant of the ‘right to use’ scientific equipment and therefore, the payments made were covered under the definition of ‘royalty’ under the Act as well as under Article 12(4)(a) of the India-US DTAA is erroneous.

• There is no doubt that the Assessee grants access to standard and automated facilities, which provide computer power, storage, data, and other services that may be required by customers for their computing needs. 

• However, there is no material to establish that a grant of such service entails the transfer of any technical know-how, skill, knowledge, or process. The customers of the Assessee do not acquire any right to commercially exploit any of the Assessee’s IPRs. The provision of cloud computing services does not entail placing any hardware at the exclusive disposal of the customer. The Assessee grants access to standard and automated services, which are available online.

• Customers can select from the services offered according to their needs. As explained by the Assessee, cloud computing provides an effective alternative for customers to use cloud computing services instead of buying, owning, and maintaining their own data centres and servers.

• After examining the Agreement and appreciating the scope of services, the learned Tribunal found that the Assessee’s customers are granted only a non-exclusive and non-transferable license to access the standard automated services offered by the Assessee. 

• Further, the Assessee does not provide the source code of the licensed software to the customers. The Assessee’s customers have no right to exploit the Assessee’s IPR. 

7. Final Order by the Hon’ble High Court

The Hon’ble High Court held that:

• We find no merit in the contention that the amount received by the Assessee for providing services would be taxable as equipment royalty. As noted before, the Assessee’s customers do not acquire any right to use the infrastructure and software of the Assessee for the purposes of commercial exploitation. 

• The charges paid by the Assessee’s customers are for availing services, which the Assessee provides by using its proprietary equipment and other assets. No part of its equipment or IPRs is alienated by the Assessee in favour of its customers for their use. 

• Therefore, the payments received cannot be considered as royalties within the meaning of Article 12(3) of the India-US DTAA. 

• In our view, no substantial question of law arises for consideration by this Court. The appeals are, accordingly, dismissed.