TMI Blog2022 (9) TMI 1447X X X X Extracts X X X X X X X X Extracts X X X X ..... s the main clauses of the tax treaty. In our considered opinion the provisions of the tax treaty are, therefore, required to be read with the protocol and are subject to the provisions contained in such protocol without there being a need of a separate notification for enforcing the provisions of the protocol, this has been settled by the decision of Steria (India) Ltd [ 2016 (8) TMI 166 - DELHI HIGH COURT] The term FTS has a more restrictive scope in so far as the absence of the term managerial and further existence of the make available condition are embedded therein. In our understanding under the India UK tax treaty for a payment to quality as FTS both the following conditions need to be cumulative satisfied : (i) The serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t services rendered by the assessee are excluded from the ambit of FTS since the make available clause under the India- France DTAA even after amendment notification So No. 650 (E). dated 10.07.2000? 2. Whether the ld. CIT(A) has erred in law in applying the make available clause when the India- France DTAA does not include the same and the conduct of the parties by way of amendment notification SO No.650 (E). dated 10.07.2000 show that (i) there was no intention to change the scope and make it more restrictive and (ii) Protocol, ipso- facto cannot be given effect to, in absence of the notification? 3. Whether the Ld. CIT(A) has erred in law in not passing a speaking order and not discussing the main issue i.e. whether the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the year under consideration the assessee received charges for the management support services amounting to Rs. 5,57,14,648/- from GE Power Conversion India Private Limited and Converteam EDC Private Limited. The said management charges was treated as non taxable in India by the assessee claiming it to be in accordance with Article 13 of the India France Tax Treaty read with protocol to the tax treaty that prescribes the most favoured nation (MFN) clause which restricts the scope of taxation of fees for technical services (FTS) under the tax treaty. 6. During the assessment proceeding the assessee was asked to explain why the services in the nature of support services should not be treated as fees for technical services (FTS) and why the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t taxable in India. 12. After considering the facts and the submissions the CIT(A) directed the assessee to furnish supporting documentation/ electronic mails to substantiate the nature of services provided by the assessee. 13. The assessee furnished the information/documents required by the CIT(A) and the CIT(A) after examining the documents was convinced with the contention of the assessee and held that the amount received by the assessee during the year for provision of management support services shall not be taxable as FTS under the tax treaty since the make available test imported from India UK tax treaty into the India France treaty had not been satisfied in this case. 14. The bone of contention is the importing of make ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xxxxx the DTAA between India and UK as forming part of the India- France DTAA. 18. A similar view was taken by the Hon ble High Court of Delhi in the case of Galderma Pharma SA Vs. ITO in W.P. (C) 14206/2021 order dated 14.12.2021 and the judgment read as under :- 19. It would be pertinent to refer to Article -13 of the India UK Tax Treaty which is as under :- 20. A perusal of the above Article show that the term FTS has a more restrictive scope in so far as the absence of the term managerial and further existence of the make available condition are embedded therein. 21. In our understanding under the India UK tax treaty for a payment to quality as FTS both the following cond ..... X X X X Extracts X X X X X X X X Extracts X X X X
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