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2019 (10) TMI 431 - AT - Income TaxIncome accrued in India - GSA receipts treated as 'fees for included services' as per Article 12 of the tax treaty between India and USA - HELD THAT:- We find that the expression “making available” is very much important to decide in which contracting state the amount received for rendering the services relating to the technical know-how is to be taxed. The expression “make available” is used in the context of supplying or transferring technical knowledge or technology to another. It is different than the mere obligation of the person rendering the services of that persons own technical knowledge or technology in performance of the services. The technology will be considered as made available when the person receiving the services is able to apply the technology by himself. We hold that the assessing officer erred in taxing the service agreement receipt as ‘fee for included services’ as per Article 12(4) of India USA DTAA for such services in absence of clause in the service agreement that the recipient would be able to perform these services of its own without any further assistance of the assessee. - Decided in favour of assessee
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