Royalty & Fees for Technical Services – The New Tax Battles

🔹 Why Royalties and FTS Are Tax Hotspots

In the age of globalization and digitalization, cross-border payments for intellectual property (IP), software, and technical services have become the backbone of international business.

But with these payments comes a major question: How should they be taxed?

  • Is a software subscription payment a royalty or just a business expense?
  • When an Indian company pays for cloud services hosted abroad, should it be taxed in India as fees for technical services (FTS)?
  • What if the payment is covered under a Double Taxation Avoidance Agreement (DTAA)?

These questions have sparked some of the biggest tax disputes in India. The Union Budget 2025, judicial rulings, and global frameworks are trying to bring clarity — but uncertainty still looms.

In this blog, we’ll decode the complexities of royalty and FTS taxation, recent court rulings, ICAI insights, and practical implications for businesses.

🔹 1. What Are Royalties and FTS?

📍 Royalty – Section 9(1)(vi) of Income-tax Act

“Royalty” means payment received for:

  • Use of or right to use IP (patents, copyrights, trademarks).
  • Transfer of rights in software.
  • Use of industrial, scientific, or commercial equipment.

📍 Fees for Technical Services (FTS) – Section 9(1)(vii)

FTS includes payment for:

  • Managerial services.
  • Technical consultancy.
  • Professional services.

 Key Difference: Royalty is for use of rights or property. FTS is for services rendered.

🔹 2. Why It Matters Today

In the past, royalty and FTS were mostly linked to manufacturing and industrial sectors. But today:

  • Software subscriptions (Microsoft Office, Zoom, cloud services).
  • Digital advertising fees (Google, Facebook).
  • Online consultancy services.

These payments are common — and tax authorities want their share.

🔹 3. Indian Tax Perspective

📍 Domestic Law

  • Royalty and FTS are deemed to accrue in India if services are used in India, regardless of where the provider is located.
  • TDS (Tax Deducted at Source) obligations apply when payments are made.

📍 DTAA Provisions

  • Treaties often define royalty/FTS differently.
  • Some treaties (like India–US) have narrower definitions, exempting certain payments.
  • DTAA overrides domestic law if more beneficial.

Example: Under India–Singapore DTAA, cloud service payments may not qualify as royalty, but under domestic law, tax authorities may still argue otherwise.

🔹 4. Landmark Judicial Rulings

📍 Software Royalty Cases

  • Engineering Analysis Centre of Excellence (2021): The Supreme Court ruled that payments for software distribution are not royalty unless rights in copyright are transferred.
  • Impact: Huge relief for IT sector, but tax officers continue to challenge SaaS/cloud payments.

📍 FTS and Make Available Clause

  • Many treaties (e.g., India–US DTAA) have a “make available” clause.
  • FTS is taxable only if technical knowledge is made available to the recipient for future use.
  • Example: Online consultancy that doesn’t transfer know-how may not qualify as FTS.

 Lesson: Treaty protection is critical in determining tax liability.

🔹 5. ICAI Guidance & Technical Insights

The Institute of Chartered Accountants of India (ICAI) has emphasized that:

  • Payments for standardized services (like SaaS) should not automatically be classified as royalty.
  • Businesses must carefully review contracts and treaties.
  • Professionals should document nature of services to avoid disputes.

🔹 6. Global Perspective

  • US & EU: Generally treat SaaS as business income, not royalty.
  • OECD Guidelines: Focus on “beneficial ownership” and actual nature of service.
  • India’s Position: More aggressive, often taxing such payments as royalty or FTS.

This divergence creates double taxation risks.

🔹 7. Practical Implications for Indian Businesses

✅ IT & SaaS Companies

  • Outbound payments for licenses may be taxed as royalty.
  • Inbound payments from global clients must be structured carefully.

✅ Startups & SMEs

  • Cloud subscriptions are common — startups must account for TDS obligations.
  • Many fail to deduct TDS on foreign SaaS, risking penalties.

✅ Multinationals

  • Must align contracts with treaty definitions.
  • Should adopt robust transfer pricing (TP) documentation.

🔹 8. Case Study – Cloud Subscription Payment

Scenario:

  • An Indian startup pays $100,000 annually for AWS cloud hosting.

Issue:

  • Is this a royalty (use of equipment/software) or a business service?

Analysis:

  • Under domestic law, tax authorities may argue royalty.
  • Under DTAA (India–US), it may not be royalty.

Outcome:

  • If DTAA applies, startup may avoid TDS.
  • But in practice, many deduct TDS to avoid litigation.

🔹 9. Risks of Misclassification

  • TDS Default Penalties: 30% disallowance of expense + interest + penalties.
  • Double Taxation: If India taxes as royalty but foreign country treats it as business income.
  • Litigation Costs: Long legal battles with uncertain outcomes.

🔹 10. FAQs – Common Questions

Q1: Is every software payment royalty?
👉 No, only if it involves rights in copyright. Standard SaaS is not royalty under Supreme Court ruling.

Q2: What if DTAA says something different?
👉 DTAA overrides domestic law if more beneficial.

Q3: Should startups deduct TDS on SaaS?
👉 Practically yes, unless legal opinion and treaty protection clearly apply.

Q4: Can consultancy fees be exempt from FTS?
👉 Yes, if no know-how is made available (depending on DTAA).

🔹 11. Compliance Checklist for Businesses

✅ Review all foreign payments (software, cloud, consultancy).
✅ Check whether payment is royalty, FTS, or business income.
✅ Refer to relevant DTAA for exemptions.
✅ Deduct TDS where required.
✅ Maintain documentation: invoices, contracts, legal opinions.
✅ For outbound payments, obtain Tax Residency Certificate (TRC) from payee.

🔹 Conclusion – The Road Ahead

Royalty and FTS taxation remains one of the most litigated areas in Indian direct tax law. With digitalization, new disputes will continue to emerge — especially around cloud computing, SaaS, and online consultancy.

  • For taxpayers: Compliance and documentation are critical.
  • For startups: Deduct TDS on cross-border SaaS unless treaty protection applies.
  • For professionals: Stay updated with ICAI guidance and court rulings.

 Final Message: The key to avoiding disputes lies in clear contracts, robust documentation, and correct application of DTAA. Businesses that prepare early will save time, money, and stress.

Income Tax Hacks for 2025 – How Salaried Individuals Can Save More

Why Salaried Taxpayers Need Smart Planning

Salaried individuals are the backbone of India’s income tax system. Nearly 40–45% of India’s direct tax revenue comes from salaried employees, making them one of the most significant taxpayer groups.

For most employees, tax planning happens at the last minute — usually in February or March — when HR departments request investment proofs. This often leads to rushed decisions and sub-optimal tax savings.

But smart tax planning is not about “saving at the last moment.” It’s about understanding the provisions, optimizing deductions, and using exemptions wisely throughout the year.

With the Union Budget 2025 bringing new incentives, it’s time for salaried taxpayers to rethink their tax strategy.

🔹 1. Choosing Between Old vs. New Regime

India now has two parallel tax regimes:

  • Old Regime: Higher tax rates but allows multiple deductions and exemptions (HRA, 80C, 80D, etc.).
  • New Regime: Lower tax rates but minimal deductions.

📊 Example:

  • Employee A earns ₹12 lakh annually but doesn’t invest much. Under the new regime, tax liability is lower.
  • Employee B also earns ₹12 lakh but invests ₹1.5 lakh in 80C, ₹50,000 in 80D, and pays home loan interest of ₹2 lakh. Old regime saves more.

Tip: Always calculate taxes under both regimes before filing. Use online calculators or consult a CA.

🔹 2. Maximize Section 80C – The Classic Saver

Under Section 80C, you can claim deductions up to ₹1.5 lakh. Popular options include:

  • Employee Provident Fund (EPF) – Automatically deducted from salary.
  • Public Provident Fund (PPF) – Long-term savings with tax-free returns.
  • Equity Linked Savings Scheme (ELSS) – Tax-saving mutual funds with high return potential.
  • Life Insurance Premiums – Premiums paid for self, spouse, and children.
  • National Savings Certificate (NSC) – Secure, fixed-income savings.

Strategy: If you’re young and willing to take risks → go for ELSS. If you prefer safety → PPF or NSC.

🔹 3. Health Comes with Wealth – Section 80D

Healthcare costs are rising, and so are medical insurance premiums. Section 80D allows deductions for health insurance premiums:

  • Up to ₹25,000 for self, spouse, and children.
  • Additional ₹25,000 for parents (₹50,000 if they are senior citizens).
  • Preventive health check-ups up to ₹5,000 included.

📊 Example: If you pay ₹20,000 for your family policy and ₹35,000 for senior citizen parents, you can claim ₹55,000 deduction.

🔹 4. Save on Rent & Housing – HRA and Home Loans

📍 House Rent Allowance (HRA):

If you live in a rented house and receive HRA as part of your salary, you can claim exemption based on:

  • Actual HRA received.
  • Rent paid minus 10% of salary.
  • 50% of salary (metro) or 40% (non-metro).

📍 Home Loan Benefits:

  • Section 24(b): Deduction up to ₹2 lakh on home loan interest.
  • Section 80EEA: Additional ₹1.5 lakh deduction for affordable housing loans.

Strategy: If possible, structure your salary to include HRA while also claiming home loan interest benefits.

🔹 5. Standard Deduction – Automatic Relief

Every salaried employee is entitled to a standard deduction of ₹50,000.
No documents required, no conditions — it’s a flat deduction.

🔹 6. New Green Incentives in 2025

The Union Budget 2025 has introduced eco-friendly tax incentives:

  • Investments in green bonds now qualify for deductions.
  • Purchases of electric vehicles (EVs) offer interest deduction under Section 80EEB (up to ₹1.5 lakh).

This not only saves tax but also aligns with India’s push for sustainability.

🔹 7. Leave Travel Allowance (LTA)

Employees can claim exemption for travel expenses within India for self and family.

  • Only covers travel cost (flight/train/bus), not hotel or food.
  • Allowed twice in a 4-year block.

Tip: Plan vacations strategically to maximize this benefit.

🔹 8. Perks & Reimbursements – Optimize Salary Structure

Many employees don’t realize that salary structuring plays a big role in tax savings. Examples include:

  • Meal vouchers (tax-free up to ₹50 per meal).
  • Telephone/internet reimbursements.
  • Education allowance for children.

Strategy: Negotiate with your employer to restructure CTC for maximum exemptions.

🔹 9. Voluntary Retirement & Retirement Planning

  • Gratuity: Exempt up to ₹20 lakh.
  • Leave Encashment: Exempt up to ₹3 lakh for non-government employees.
  • NPS (Section 80CCD(1B)): Extra ₹50,000 deduction for investing in the National Pension Scheme.

Smart move: Even if you’re under the new regime, consider NPS for long-term retirement planning.

🔹 10. Smart Use of Advance Tax & TDS

  • If your tax liability exceeds ₹10,000 in a year, pay advance tax in installments.
  • Check Form 26AS to ensure correct TDS deduction.
  • Overpayment? File for refund quickly.

🔹 11. Common Mistakes Salaried Individuals Make

❌ Investing randomly in tax-saving products without financial planning.
❌ Not calculating both regimes before filing.
❌ Missing out on health insurance deductions.
❌ Forgetting LTA and HRA exemptions.
❌ Ignoring advance tax leading to penalties.

🔹 12. FAQs – Quick Answers

Q1: Should I always choose the new regime?
👉 Not necessarily. If you maximize deductions (80C, 80D, HRA, home loan), the old regime often works better.

Q2: Can I claim both HRA and home loan deduction?
👉 Yes, if you live in a rented house in one city while having a home loan in another.

Q3: How much tax can I save with health insurance?
👉 Up to ₹1 lakh if you cover both self/family and senior citizen parents.

Q4: What if my employer doesn’t give LTA?
👉 Then you cannot claim it — LTA is employer-dependent.

🔹 13. Compliance Checklist for Salaried Taxpayers (2025)

✅ Compare both regimes before choosing.
✅ Invest ₹1.5 lakh in 80C instruments.
✅ Cover family + parents under health insurance.
✅ Claim HRA if in rented accommodation.
✅ Plan for home loan deductions.
✅ Use LTA strategically.
✅ Keep digital proofs ready (rent receipts, premium payments, etc.).
✅ File return before the due date.

🔹 Conclusion – Smart Planning = Bigger Savings

The tax system is no longer about last-minute investments. With AI-powered compliance, every transaction is tracked. That means salaried individuals must:

  • Plan early.
  • Choose the right regime.
  • Use deductions strategically.
  • Keep documentation ready.

Final Message: By combining traditional tax savers (80C, 80D, HRA) with new green incentives (EVs, green bonds), salaried individuals in 2025 can achieve maximum savings while staying fully compliant.

Transfer Pricing in the Digital Era – Challenges Post AI & Cloud Adoption

Why Transfer Pricing Matters in the Digital Age

Transfer Pricing (TP) refers to the rules and methods for pricing transactions between related enterprises, such as subsidiaries of a multinational enterprise (MNE). It ensures that cross-border dealings happen at arm’s length — as if they were independent parties.

Traditionally, TP was applied to goods and services like machinery, raw materials, or financing. However, in today’s digital economy, things are no longer that simple:

  • Value is often created by data, algorithms, and cloud computing.
  • Companies operate without physical presence but still earn substantial revenue from global markets.
  • Determining the right “price” for intangibles like AI, software, and intellectual property has become extremely complex.

This blog explores the unique challenges of TP in the digital era and how Indian companies must adapt.

🔹 1. Evolution of Transfer Pricing in India

  • 1991 Liberalization: With FDI inflows, India adopted transfer pricing rules to prevent profit shifting.
  • 2001: India introduced detailed TP regulations under the Income-tax Act, 1961.
  • 2010s: India began litigating heavily on royalties, management fees, and intra-group services.
  • 2016 onwards: Alignment with OECD’s BEPS framework, including Country-by-Country Reporting (CbCR) and Master File requirements.
  • 2020 onwards: Digital economy challenges like SaaS, e-commerce, and AI required new frameworks.

📌 Context: TP is no longer about just goods; it is about intangibles, algorithms, and digital footprints.

🔹 2. Key Challenges in the Digital Era

📍 (a) Valuing Intangibles & Data

  • Digital businesses rely on data (user preferences, search history, AI training sets).
  • Data collection may happen in one country (India), while monetization occurs in another (US).
  • How do we value user data as a TP asset?

📍 (b) AI-Driven Business Models

  • AI algorithms are developed in one jurisdiction but trained using global data.
  • Determining DEMPE functions (Development, Enhancement, Maintenance, Protection, Exploitation) becomes crucial.
  • Example: An Indian subsidiary helps enhance AI software — should profits be attributed to India or the parent entity?

📍 (c) Cloud & SaaS Transactions

  • Payments for cloud services often look like royalties or technical fees.
  • But tax treaties treat them differently.
  • Ambiguity creates litigation risk.

📍 (d) Absence of Physical Presence

  • Digital giants (e.g., Netflix, Amazon) earn billions from India without a permanent establishment (PE).
  • TP rules traditionally rely on physical presence, creating a mismatch.

🔹 3. OECD Guidance & DEMPE Approach

The OECD recommends using the DEMPE framework for intangibles:

  • Development: Who developed the AI/software?
  • Enhancement: Who improved it over time?
  • Maintenance: Who maintained and updated it?
  • Protection: Who holds legal rights (patents, IP)?
  • Exploitation: Who uses and earns from it?

Example: If an Indian subsidiary significantly enhances an AI algorithm with local data, India deserves a larger share of profits.

🔹 4. Transfer Pricing Litigation in India – Recent Trends

Indian tax authorities are aggressive in TP assessments, especially in the digital economy. Key disputes include:

  • Software Payments: Courts have debated whether payments for software licenses are royalty or business income.
  • Management Fees: Often challenged as excessive or unsubstantiated.
  • Intra-Group Services: Tax authorities demand proof of actual benefit received.

Judicial Relief: In 2024, the Supreme Court clarified that not all software payments are royalty, offering clarity to IT firms.

🔹 5. ICAI’s Role in Guiding TP Professionals

The Institute of Chartered Accountants of India (ICAI) has issued a Guidance Note on Transfer Pricing (revised 2022), which:

  • Explains TP in light of digital transactions.
  • Emphasizes robust documentation for AI, SaaS, and cloud transactions.
  • Advises Indian CAs to adopt OECD-compliant TP methods.

This guidance is critical for professionals handling complex TP audits.

🔹 6. Practical Implications for Indian Businesses

✅ IT & SaaS Companies

  • Must justify inter-company software pricing.
  • Need to document how intangibles are developed and exploited.

✅ Startups & Unicorns

  • Many Indian startups with overseas entities must align TP policies to avoid tax leakage.
  • Example: A Bengaluru startup routing ad revenue through Singapore may face scrutiny.

✅ E-commerce & Digital Giants

  • Must allocate profits fairly to India based on local user base.
  • GST and equalization levy further increase compliance.

✅ Traditional Businesses Going Digital

  • Manufacturers offering AI-driven services must rethink TP models.
  • Example: Auto companies selling connected cars with data services must allocate profits across jurisdictions.

🔹 7. Case Study – AI Subsidiary in India

Scenario:

  • US Parent develops AI software.
  • Indian Subsidiary trains it with massive Indian datasets.
  • Global profits generated from subscriptions.

Questions for TP:

  • Does India deserve compensation only for services (cost-plus) or for value creation through data?
  • Should the Indian subsidiary share in global intangible profits?

Likely Outcome: Indian tax authorities will demand a profit-split approach rather than simple cost-plus.

🔹 8. Risks of Non-Compliance

  • Tax Adjustments: Can increase taxable income by crores.
  • Double Taxation: If two countries claim the same income.
  • Penalties: Up to 200% of tax underpaid in India.
  • Reputation Damage: MNEs face scrutiny from investors and regulators.

🔹 9. FAQs – Common Questions

Q1: Are cloud payments taxable as royalty?
👉 Depends on contract terms. If ownership is transferred, yes. If only access is given, it may not be royalty.

Q2: What TP method applies to AI transactions?
👉 Often Profit Split Method (PSM) since value is shared across multiple jurisdictions.

Q3: Can startups ignore TP rules?
👉 No, even startups must comply once they cross thresholds for international transactions.

Q4: How can ICAI help professionals?
👉 ICAI’s guidance notes, courses, and diploma in international taxation equip CAs to handle complex cases.

🔹 10. Compliance Checklist for Indian Businesses

✅ Identify all cross-border digital transactions.
✅ Apply DEMPE analysis for intangibles.
✅ Maintain robust TP documentation.
✅ Justify intra-group service payments with evidence.
✅ Benchmark software/AI services with global comparables.
✅ Prepare for AI-driven TP audits by tax authorities.

🔹 Conclusion – The Future of Transfer Pricing

Transfer Pricing in the digital era is no longer about simple goods and services. It’s about algorithms, cloud services, and data value. For Indian companies, this means:

  • Increased scrutiny from tax authorities.
  • Need for stronger documentation.
  • Alignment with global best practices.

 Final Message: Transfer Pricing is evolving from a compliance exercise into a strategic business tool. Companies that adapt early, adopt robust systems, and stay transparent will not only avoid disputes but also gain investor trust.