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2023 (6) TMI 90 - HC - Income TaxIncome deemed to accrue or arise in India - ‘make available’ clause - Fee received by assessee for technical services rendered to its Associated Enterprises in India - interpretation of Article 12(4) of the DTAA - Whether no transfer of technology in the case of assessee as the ‘make available’ clause is not satisfied ? - HELD THAT:- As fee paid is for the evaluation of risk factor by the assessee company which is based in USA. As argued that the results of such activities are made available to the other entities with ABB group, we may record the explanation given that the word ‘made available’ used in portion of the agreement extracted of DRP’s directions refers only to the results which the entities in the group companies may use and the same cannot be interpreted or equated to any other technical design or consultancy, the benefit of which the ABB India can derive in perpetuity. He is right in his submission because the services rendered by the assessee is project specific and terminates with submission of bid by the ABB India after making necessary changes or corrections in the bid based on the evaluation report. If the agreement permits the assessee to make available the results for guidance to other entities in the group, the same cannot be attributed as services ‘made available’ which could be used in perpetuity. The contention urged on behalf of the revenue that opinion tendered by the assessee falls within the parameters ‘made available’ must fail. - Decided in favour of the assessee.
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