1 bgp IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX REFRENCE NO.136 OF 1995 Commissioner of Income Tax ..Applicant Vs. M/s.Uhde Gmbh ..Respondent Mr.Parag Vyas for applicant. Mr.F.B.Andhyarujina, Senior Advocate with Mr.P.C.Tripathi for respondent. CORAM :- V.C.DAGA & J.P.DEVADHAR,JJ. DATE : 23rd June,2009 P.C. 1. Heard learned Counsel for the parties. 2. The Tribunal has referred the following two substantial questions of law for the opinion of this Court under Section 261(1) of the Income Tax Act: 1. Whether on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the amounts received by the assessee company under agreements with various Indian concern are not in the nature of royalty but part of commercial or industrial profits and, therefore, exempt from tax under Article III(3) of the Agreement for the Avoidance of Double Taxation in respect of income between the Government of India and the Government of the Federal Republic of Germany? 2. Whether on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the definition of the term “Royalty” in Explanation 2 to Sec.9(1)(ii) of the Act will not apply to the said term as used in Article III(3) of the aforesaid Agreement for Avoidance of Double Taxation of Income ? 3. Learned Counsel for both parties agree that both the questions referred to this Court are squarely covered by the judgment of this Court in the case of C.I.T. Vs. Siemens Aktiongesellschaft (2009) 310 ITR 320. In this view of the matter, both the questions are answered in the affirmative i.e. in favour of the assessee and against the Revenue for the reasons stated therein. The Reference accordingly disposed of with no order as to costs. (J.P.DEVADHAR,J.) (V.C.DAGA,J.)