Royalty and make available tests barred withholding tax on foreign group support service payments under the India-Canada treaty.

Payments to a foreign group company for IT support were treated as reimbursements for group-level services and cost allocations, not royalty under the Income-tax Act or the India-Canada DTAA, because the payer acquired no right to use equipment, copyright, or other protected software rights; accordingly, no withholding obligation arose under section 195. Payments for management support and advisory services were not fees for included services because the services did not make available technical knowledge, skill, know-how, or processes to the recipient, so they were not chargeable to tax in India and no tax deduction at source was required. The appellate order deleting the withholding demand was sustained.

---

---

Issues: (i) Whether payments made to the foreign group company for IT support services were taxable as royalty under the Income-tax Act, 1961 and the India-Canada DTAA, and whether tax was deductible under section 195. (ii) Whether payments made for management support and advisory services were taxable as fees for included services under the India-Canada DTAA, and whether tax was deductible under section 195.

Issue (i): Whether payments made to the foreign group company for IT support services were taxable as royalty under the Income-tax Act, 1961 and the India-Canada DTAA, and whether tax was deductible under section 195.

Analysis: The payments were held to be reimbursements for group-level IT support and specific cost allocations. The services involved use of software applications and systems, but the payer did not acquire any right to use equipment, nor any right to use copyright or other protected rights in the software. Mere use of a facility or incidental use of equipment in rendering services does not amount to use or right to use equipment by the recipient. In the absence of any income element in the hands of the recipient, the remittance could not be characterised as royalty, and no withholding obligation arose under section 195.

Conclusion: The issue was decided in favour of the assessee. The payments were not royalty and no tax was deductible at source.

Issue (ii): Whether payments made for management support and advisory services were taxable as fees for included services under the India-Canada DTAA, and whether tax was deductible under section 195.

Analysis: The treaty required the services to be of a technical or consultancy nature and to make available technical knowledge, experience, skill, know-how, or processes to the recipient. The services rendered were group support and consultancy services, but there was no material to show that technology or technical know-how was transmitted so that the recipient could perform the services independently in future. The benefit derived from receiving services, or the fact that the services were technical in a broad sense, was insufficient. Applying the settled meaning of the make available clause, the payments did not fall within fees for included services, and without chargeability to tax in India, section 195 was not attracted.

Conclusion: The issue was decided in favour of the assessee. The payments were not fees for included services and no withholding tax was required.

Final Conclusion: The appellate order deleting the withholding demand was sustained and the Revenue's appeal failed in entirety.

Ratio Decidendi: A payment to a non-resident is subject to withholding under section 195 only if it represents income chargeable to tax in India, and under the India-Canada DTAA, technical or consultancy services are taxable as fees for included services only when they make available technical knowledge, experience, skill, know-how, or processes to the recipient.

---