Treaty make available condition applies only when expressly provided; Swiss services taxed, Canada and US payments not.

The Indo-Swiss DTAA Protocol did not import a "make available" condition, because no express amendment or renegotiation incorporated such a term; Swiss remittances therefore remained taxable in India as fees for technical services. By contrast, the Canada and USA treaties contained a make available requirement, and the non-residents only supplied technical or bio-analytical reports without transferring usable technical knowledge, skill, know-how or process enabling independent use by the payer. Those payments were therefore not taxable as fees for included services, and no TDS liability arose on them. The appellate order sustaining tax only on the Swiss remittances was left undisturbed.

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Issues: (i) Whether the Indo-Swiss DTAA Protocol imported a "make available" condition for taxation of fees for technical services. (ii) Whether the remittances to the Canadian and US non-residents were taxable as fees for included services in the absence of making available technical knowledge, skill or know-how.

Issue (i): Whether the Indo-Swiss DTAA Protocol imported a "make available" condition for taxation of fees for technical services.

Analysis: The Protocol did not itself contain a "make available" clause. It only contemplated future negotiations if India later entered into a more favourable treaty with an OECD member State. A subsequent treaty with another country could not be automatically read into the Indo-Swiss DTAA in the absence of an express amendment or renegotiation. The assessee's reliance on a similar protocol in another treaty was therefore not sufficient to alter the plain scope of the Indo-Swiss arrangement.

Conclusion: The "make available" condition was not imported into the Indo-Swiss DTAA, and the Swiss remittances remained chargeable in India as fees for technical services.

Issue (ii): Whether the remittances to the Canadian and US non-residents were taxable as fees for included services in the absence of making available technical knowledge, skill or know-how.

Analysis: The Canada and USA treaties contained the relevant "make available" stipulation. On the facts, the non-residents only conducted technical or bio-analytical studies and supplied final reports; they did not transmit the underlying method or expertise so that the assessee could perform the work independently in future. Where the recipient does not acquire usable technical knowledge, experience, skill, know-how or process, the services do not amount to "fees for included services" for treaty purposes. In that situation, no liability to deduct tax at source arose.

Conclusion: The Canadian and US remittances were not taxable as fees for included services, and no TDS liability arose on those payments.

Final Conclusion: The cross-appeals failed, and the appellate order sustaining tax liability only on the Swiss remittances while granting relief for the Canadian and US payments was left undisturbed.

Ratio Decidendi: A treaty-based "make available" condition cannot be implied into a DTAA unless expressly provided or validly incorporated, and technical services are taxable as included services only when the payer acquires technical knowledge or capability enabling independent use.

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