Make available test under India-UK DTAA: offshore service receipts taxed as fees for technical services, not Article 7 income.

Receipts from services rendered outside India were treated as fees for technical services under Article 13(4)(c) of the India-UK DTAA because the services made available technology to the recipient, satisfying the make available test. Article 13(6) was held inapplicable because the income did not arise through, or have effective connection with, a permanent establishment in India. The analysis also noted taxability under section 9(1)(vii)(b) of the Income-tax Act, 1961. The alternative claim for assessment under Article 7 on a permanent establishment basis was rejected.

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Issues: Whether the receipts in question were taxable as fees for technical services under Article 13 of the India-UK Double Taxation Avoidance Agreement or whether they fell to be considered under Article 7 by reason of an alleged permanent establishment and effective connection, including application of the make available requirement.

Analysis: The appeals involved identical questions already decided in the assessee's own case for an earlier assessment year. The Tribunal followed that decision and held that the receipts from services rendered outside India were chargeable to tax as fees for technical services under Article 13(4)(c) because the services made available technology to the recipient. It further held that Article 13(6) did not apply because the receipts did not arise through, and were not effectively connected with, the permanent establishment in India. The Tribunal also noted that the income was chargeable under section 9(1)(vii)(b) of the Income-tax Act, 1961 and that the make available test stood satisfied.

Conclusion: The receipts were taxable as fees for technical services under Article 13(4)(c), and the assessee's challenge based on Article 7 and permanent establishment connection failed.

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