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2017 (11) TMI 1870 - AT - Income TaxRoyalty receipt - Payments received from key application services (‘KAS’) for network access etc or providing network access to use copyright software - ‘DTAA’ of India-Netherlands - HELD THAT:- Tribunal in assessee’s own case has taken the view that the payments received by the assessee from WIPRO, IBM and Logica in pursuance to the MSA cannot be treated as royalty under Article 12(4) of the Indian-Netherlands DTAA. Exactly on identical facts, this was confronted to the learned CIT DR, he fairly agreed that the issue is covered by the Tribunal’s decision. After hearing both the sides and gone through the facts of the case, we find that exactly on identical facts the issue is covered by Tribunal’s decision for AY 2006-07 [2017 (4) TMI 763 - ITAT MUMBAI] Taxability of payment received by assessee from IT support services which constitutes Fees for Technical Services (‘FTS’) - royalty under the India-Netherlands Treaty DTAA - HELD THAT:- Concept of ‘make available’ of technical services that such receipts would not amount to fee for technical services so as to the “concept of make available clause’ contained in Article 13(4)(c) of the treaty has not been satisfied. See GUY CARPENTER & CO. LTD. [2012 (5) TMI 31 - DELHI HIGH COURT] Accordingly, we delete the addition and allow this issue of assessee’s appeal.
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