2012 (5) TMI 191 - KARNATAKA HIGH COURT

Fees for technical services - meaning of "make available" - Section 9(l)(vii) of the Income Tax read with Article 12(5) of the DTA agreement between India and Netherlands - services to supply technical data including drawings, plans, maps etc., (geological survey) to identify the mineral deposits – Held that:- The technical knowledge or skills of the provider should be imparted to and absorbed by the receiver so that the receiver can deploy similar technology or techniques in the future without depending upon the provider. Technology will be considered "made available" when the person acquiring the service is enabled to apply the technology. The fact that the provision of the service that may require technical knowledge, skills, etc., does not mean that technology is made available to the person purchasing the service, within the meaning of paragraph (4)(b). Similarly, the use of a product which embodies technology shall not per se be considered to make the technology available. In other words, payment of consideration would be regarded as "fee for technical/included services" only if the twin test of rendering services and making technical knowledge available at the same time is satisfied.

Article 12 of the India-Netherlands Treaty defines fees for technical services for the purpose of Article 12 which deals with royalties and fees for technical services paid to any person in consideration for rendering of any technical services only, if such services make available technical knowledge, expertise, skill, know-how or processes - in terms of the contract entered into with Fugro data, photographs and maps are made available but they have not made available technical expertise, skill or knowledge in respect of such collection or processing of data to the assessees, which the assessee can apply independently and without assistance and undertake such survey independently excluding Fugro in future - Fugro has rendered technical service to the assessees. They have not made available the technical knowledge with which they rendered technical service - if the technology is not made available along with the technical services and what is rendered is only technical services and the technical knowledge is with-held, then, such a technical service would not fall within the definition of technical services in DTAA and not liable to tax – in favour of assessee.

Whether payment to Fugro was for the development and transfer of technical plan or technical design to the assessee - Held that:- the assessees not being possessed with the technical know how to conduct this prospecting operations engaged the services of Fugro which is expert in the field - By way of technical services Fugro delivered to the assessees the data and information after such operations - These maps and photographs which were made available to the assessees cannot be construed as Technology made available as Fugro has not devised any technical plan or technical design - The maps which are delivered are not of kind of any developmental activity – Fugro is engaged in providing services relating to collection and processing of the data and the contract is for providing of services and not for supply of technical design or plan - in favour of assessee.