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2013 (8) TMI 446 - AT - Income TaxTerm ‘make available’ in DTAA - 'Fees for Technical Service' is a consideration received in the hands of the recipient, provided, those technical knowledge or know-how etc – Held that:- 'Make available' means to allow somebody to make use of the know- how or knowledge. This has been further expanded that 'make available' means that the person receiving the services has been enabled to utilise that knowledge or the receiver has become wiser to utilise that knowledge independently – Relying upon the various judgments, mere rendering of services is not enough unless the person utilising the knowledge is able to make use of that technical knowledge by himself for his own benefit independently i.e without the guidance of the said service provider. The term of the agreement is for period of 10 years - In this long period that knowledge shall become part of the system and the persons using that knowledge may themselves become expert. So the technical persons using that knowledge are required to be interrogated - All these questions can only be answered by a thorough investigation at the level of the assessment. The A.O. shall therefore examine the bills and vouchers prepared by the assessee in support of the claim of expenditure to ascertain the nature of services rendered and then find out that whether could have been made available for the business purpose of those parties. Taxing the reimbursement of expenses as 'Fees for technical services' under Article 12 of the India-Netherlands Tax Treaty – Held that:- In the written submission, the learned A.R., MR. Dhinal Shah has submitted that the appellant has received ₹ 95,10,671/- as reimbursement of expenditure from SHGPL in the course of rendering services. The assessee has, therefore, required to establish that those expenditures were first incurred out of pocket expenses then only the question of reimbursement can be decided. The assessee is, therefore, required to furnish the details of the bills through which the reimbursement was claimed since all those facts were not earlier examined by the Revenue Authorities, therefore, the natural justice demands to restore this issue back to the stage of the AO to be decided de novo as per law. Higher of the amounts mentioned in the transfer pricing certificate – Held that:- Information was gathered by AO under Section 133(6) from all those parties and thereafter arrived at a figure - If there was a difference due to foreign exchange fluctuation, the same is a matter of simple rectification. Since, no legal issue has been raised through this ground, therefore, no force is found in this ground of the assessee - Decided against the Assessee.
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