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2022 (2) TMI 1185 - ITAT DELHIIncome earned as taxable in India - Services fall within the meaning of 'make available' under the tax treaty - Business support services provided/rendered by the Appellant - fees for technical services as per the India - Belgium tax treaty (read with India- Portugal tax treaty) - Whether services fall within the meaning of 'make available' under the tax treaty? - HELD THAT:- On perusal of the services clearly show that these are routine in nature and definitely do not make available experience, know-how to the recipient MIPL. In fact, the DRP itself has accepted at Para 6.2 of its order that as per the service agreement, the services provided by the assessee are in the nature of routine support services which are not very complex in nature. Considering the protocol to the India Belgium Tax treaty, tax treaty between India and Portugal has to be considered for most favourable nation clause. Under the India Portugal Trade Tax Treaty, fees for included services is defined as consideration for rendering of any technical or consultancy services if such services are ancillary and subsidiary to the application or enjoyment of the right, property or information of which royalty payment, as defined under Article 12(b) is received or make available technical knowledge, experience, skill, know how or processes or consist of the development and transfer of a technical plan or technical design which enables the person acquiring the services to apply the technology contained therein. Services received by MIPL do not make available technology, skill know how etc and such services cannot be considered to be in the nature of managerial, technical or consultancy in nature. Considering the facts of the case in light of the service agreement, we are of the considered view that the business support services rendered by the assessee from Belgium do not qualify the test of make available under the tax treat. Therefore, we direct the Assessing Officer to delete the impugned addition. Ground Nos. 2, 3 and 4 are accordingly allowed. Charging of surcharge and cess on the gross treaty rate - HELD THAT:- We are of the considered view that when tax rate is prescribed under DTAA, education cess is not leviable. Our view is fortified by the decision of the co-ordinate bench in the case of MFAR Hotels Ltd. [2013 (4) TMI 339 - ITAT COCHIN] which has been followed by this Tribunal in the case of JC Decaux SA [2020 (3) TMI 1075 - ITAT DELHI]. Following the decision of the co-ordinate benches, we direct the Assessing Officer to apply DTAA rate without applying surcharge and cess. This ground is accordingly allowed.
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