"Make available" test under the India-Finland DTAA excluded management and IT support receipts from fees for technical services taxation.

Management support, IT support and allied services rendered by a non-resident to its Indian group company were not fees for technical services under Article 13(4) of the India-Finland DTAA because the services did not make available technical knowledge, experience, skill, know-how or processes to the recipient. Mere technical input in performing the services was insufficient, and the services were found to be managerial and recurring without any transfer of technology or capability enabling the Indian entity to function independently. The receipts were therefore not taxable as fees for technical services under the treaty.

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Issues: Whether the amounts received by the non-resident assessee for management support, IT support and allied services rendered to its Indian group company were chargeable to tax as fees for technical services under Article 13(4) of the India-Finland DTAA on the footing that the services made available technical knowledge, experience, skill, know-how or processes.

Analysis: The services described in the agreement were examined in substance, but the decisive test was whether they made available technical knowledge or skills to the recipient so that it could apply them independently in future. Mere rendering of services requiring technical input by the service provider was held insufficient. The services were found to be managerial in nature and recurring in character, without any transfer of technology, know-how, skills or processes enabling the Indian entity to function on its own. The meaning of the expression "make available" was applied in the treaty sense, and the authorities relied on by the revenue were distinguished on facts.

Conclusion: The receipts did not constitute fees for technical services under the treaty and were not taxable on that basis.

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