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2023 (6) TMI 176 - AT - Income TaxIncome deemed to accrue or arise in India - elements necessary for "make available" clause - Income earned by the Appellant characterized to be in the nature of Fees for Included Services/ Fees for Technical Services under the Act and the India-USA Tax treaty and is consequently subject to tax in India - assessee before us is a US entity and there is a DTAA between India and USA - whether the 'technical services' are made available to Indian customers/ clients? - HELD THAT:- In the instant case, the Indian customers/clients have to repeatedly seek the assessee’s services in respect of testing/research followed by a report on the outcome of such testing/research undertaken by the assessee. Assessee is neither involved in supporting a system which is put in place or is already in place by the Indian customers/clients nor getting its Indian customers/clients equipped to carry on the testing/research independently of the assessee. The utility of the services available in the form of a report, though highly technical in nature, comes to an end, little thereafter, if not immediately, after its rendition. Support that the Indian entity seeks after the report is delivered is to understand the report from the assessee. Elements necessary for "make available" is absent in the services rendered by the assessee to its Indian customers/ clients, inasmuch as even for the said reports, the customers have to continuously refer to the assessee and the same is not freely made available to the Indian customers. Thus, technical services rendered by the affiliates do not "make available" technical knowledge, experience, skill, know-how or process while preparing these reports for their, Indian customers/ clients. In light of the aforementioned judicial decisions, we are of the considered view that the service recipient of the assessee is unable to make use of the said technology only by itself in its business or for its own benefit without recourse to the assessee year after year. Decided in favour of assessee.
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