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In India, an intellectual-property right and its income-tax treatment are separate questions. The right you own or license, the rights actually transferred, how the asset is used, who the parties are, and the tax period can all affect the result. The Income-tax Act, 2025 addresses depreciation of specified intangibles in section 33, international transactions involving intangible property in section 163, and royalty under its applicable royalty definition. These rules do not make every registered right depreciable or every licence payment a royalty.
This is a general guide, not advice on a particular transaction. Check the law, commencement and transitional provisions applicable to the relevant tax period, and any tax treaty that may apply.
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Why IP law and income-tax law do not use one definition of “intangible”
IP law establishes and governs particular rights—for example, a patent, copyright, trademark or contractual licence. Income-tax law applies separate tests to decide whether expenditure or an asset is capital or revenue, whether depreciation is available, whether a payment is royalty, and whether a cross-border or associated-enterprise transaction falls within transfer-pricing rules.
Accordingly, registration, accounting treatment or an invoice label does not settle the tax answer by itself. The analysis starts with the legal and economic rights involved, then applies the tax rule for the relevant period and transaction.
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Can you claim depreciation on an intangible asset in India?
What section 33 of the 2025 Act lists
Section 33 of the Income-tax Act, 2025 provides for depreciation on specified intangible assets. Its listed category includes know-how, patents, copyrights, trademarks, licences, franchises and similar business or commercial rights. Goodwill is excluded from that enumerated intangible category.
Ownership and business use matter
The provision states that the asset must be owned wholly or partly by the taxpayer and used wholly and exclusively for business or profession. A right’s appearance on the statutory list is therefore not enough on its own. Establish what was acquired, who owns it, what rights the agreement conveys, and whether and how the taxpayer uses it in business.
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For example, a registered trademark, a contractual right to use a brand, and a broader business arrangement may involve different rights and evidence. The label “trademark” or “licence” does not establish that the taxpayer owns the relevant asset or satisfies the use condition.
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Goodwill is not included in section 33’s enumerated intangible-asset category. That is a statement about this listed category, not a substitute for examining any other potentially relevant provision or the facts of a specific case.
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For historical tax periods, section 32 of the Income-tax Act, 1961 is the predecessor depreciation provision. Its displayed version also excluded goodwill from the listed intangible category. Do not apply section 33 to an earlier period, or cite section 32 as the current provision, without checking the governing law, amendments and applicable savings or transitional rules.
When do intangible transactions enter transfer pricing?
Section 163 of the 2025 Act includes purchases, sales, transfers, leases and uses of intangible property within the international-transaction framework. Its examples extend beyond registered IP: they include marketing, technology, artistic, data-processing, engineering, customer, contract, human-capital, location and goodwill-related intangibles.
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This breadth matters for dealings between associated enterprises. A transaction can concern intangible property even if no registered right changes hands—for instance, where an entity pays for use of contractual or customer-related value. But section 163’s scope does not by itself determine the appropriate price or prove that a particular relationship or transaction qualifies. Establish associated-enterprise status, identify the transaction and rights involved, and apply the transfer-pricing rules for the relevant period.
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Is a software, trademark or other licence payment royalty?
Royalty is a rights-and-consideration question, not simply a description printed on an invoice. The applicable royalty definition in the Income-tax Act, 2025, as amended by the Finance Act, 2026, covers specified consideration involving rights, licences, uses or information relating to patents, inventions, designs, processes, trademarks, copyright works, and technical or commercial knowledge.
For software, the relevant question is what the agreement permits the customer to do and what rights or information it transfers—not merely whether the charge is called a licence fee or subscription. Likewise, a payment connected with a trademark or technical information needs analysis of the granted rights and applicable law. The facts provided by a title or invoice alone cannot settle the classification.
For a cross-border payment, also examine the actual agreement, payer and recipient status, source rules, permanent-establishment facts where relevant, and the applicable treaty. Domestic statutory wording alone does not resolve treaty characterization or withholding obligations.
Quick Recap
A practical way to analyze an IP-related tax question
- Fix the tax period. Identify the relevant tax year and confirm which enactment, amendments, commencement provisions and transitional rules govern it.
- Identify the legal right. Review the assignment, licence, registration, service or other contract. Distinguish ownership from permission to use, and record the rights, territory, duration and restrictions actually granted.
- Map the tax question. Decide whether the issue is depreciation, royalty characterization, transfer pricing, or another income-tax treatment. These are separate inquiries, even when they concern the same agreement.
- Check the parties and geography. Establish whether the parties are associated enterprises, whether the arrangement is international, and whether a treaty or other cross-border rule is relevant.
- Support the position with evidence. Keep ownership and valuation records, business-use evidence, invoices, intercompany agreements and the documents explaining the transaction’s commercial terms.
Which evidence matters for each tax question?
| Right or transaction | Tax question | Key evidence to examine | Period-specific point |
|---|---|---|---|
| Know-how, patent, copyright, trademark, licence, franchise or similar business/commercial right | Does the asset fall within section 33’s listed intangible category, and are ownership and business-use conditions met? | Assignment or licence, legal ownership records, rights acquired, acquisition or creation records, and evidence of business use | Section 33 of the 2025 Act governs only where applicable; verify tax period, commencement and transitional rules. Goodwill is excluded from this enumerated category. |
| Purchase, sale, transfer, lease or use of intangible property between relevant parties | Does the dealing fall within the international-transaction framework, and do transfer-pricing rules apply? | Intercompany agreement, party relationship, transaction scope, valuation evidence and documentation | Section 163 is the 2025 Act reference. The Income Tax Department’s explanatory Transfer Pricing page contains former-Act references and should not be used uncritically for current procedure. |
| Payment for rights, use, licence or information relating to specified IP or knowledge | Is the consideration royalty under the applicable domestic law, treaty and facts? | Agreement, rights granted, payment terms, payer and recipient details, source facts and relevant treaty | Use the royalty definition applicable to the period, including amendments; treaty characterization and withholding require separate analysis. |
| Goodwill considered for depreciation in a prior period | What rule governed the historical claim? | Acquisition documents, tax computation and records for the relevant period | Section 32 of the 1961 Act is relevant historically; do not substitute it for the current provision without checking the period and amendments. |
What to gather before seeking transaction-specific advice
- IP assignments, registrations, licences and related agreements, including any amendments.
- Invoices, payment records and documents describing the commercial purpose of the arrangement.
- Ownership, acquisition, creation and valuation records, along with evidence of business use where depreciation is being considered.
- Intercompany agreements and information establishing the parties’ relationship for transfer-pricing analysis.
- The tax period, relevant amendments or transitional facts, and—for cross-border payments—the payer and recipient details, source facts and potentially applicable treaty.
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