Transfer pricing and treaty FTS rules: distinct support services and non-technical routine assistance defeated adjustment and withholding disallowance.

Distinct contractual management and support services could not be treated as duplicative merely because related group services existed, and the arm's length price could not be fixed at nil where the agreement showed separate functions, separate consideration, and business necessity. The transfer pricing adjustment was therefore deleted. Routine time writing support provided by the overseas group entity did not satisfy the make available test under the India-UK DTAA, so the payment was not fees for technical services and tax deduction at source was not required. The consequential disallowance was also deleted.

---

---

Issues: (i) whether the transfer pricing adjustment made by treating management services unit charges as duplicative and determining the arm's length price at nil was sustainable; (ii) whether time writing charges were fees for technical services so as to attract deduction of tax at source and disallowance.

Issue (i): Whether the transfer pricing adjustment made by treating management services unit charges as duplicative and determining the arm's length price at nil was sustainable.

Analysis: The agreement between the assessee and the service provider showed identifiable management and support functions, including procurement assistance, sales support, information gathering, billing, accounts, inventory management, customer evaluation, public relations, and information technology support. The lower authorities had proceeded on the assumption that the services overlapped with other support services already accepted, but the contractual terms showed a distinct scope of work and separate consideration with mark-up. The record also showed that the assessee had no in-house employee base to conduct the business independently during the relevant year, making the support arrangement commercially necessary.

Conclusion: The transfer pricing adjustment was not justified and the disallowance of management services unit charges was deleted in favour of the assessee.

Issue (ii): Whether time writing charges were fees for technical services so as to attract deduction of tax at source and disallowance.

Analysis: The charges related to routine support rendered by employees of the overseas group entity and were ultimately taxed in India under section 44BB. The services did not satisfy the make available requirement under the India-UK DTAA because no technical knowledge, skill, know-how, or process was transmitted for independent future use by the recipient. Since the payments were not fees for technical services in the treaty sense, section 195 was not attracted and the consequential disallowance could not survive.

Conclusion: The time writing charges were not fees for technical services and the addition was deleted in favour of the assessee.

Final Conclusion: The appeal succeeded on the substantive grounds relating to transfer pricing and tax withholding, while the penalty ground did not affect the outcome.

Ratio Decidendi: Distinct contractual support services supported by evidence cannot be treated as duplicative merely because related group services exist, and routine assistance that does not make available technical knowledge is not fees for technical services under the treaty.

---