Treaty "make available" condition for foreign service payments led to fresh examination of TDS disallowance.

Disallowance for alleged failure to deduct tax at source on payments to foreign entities was examined under the India-Finland DTAA, with the central question being whether the services constituted fees for technical services and whether the treaty "make available" condition was satisfied. The Tribunal noted that its earlier order in the assessee's own case had already remanded the matter for factual verification, including whether the individual recipients met the requirements of Article 15 of the DTAA. Treating the relevant facts as identical, it followed that earlier view and remanded the issue for fresh adjudication by the Assessing Officer.

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Issues: Whether disallowance under section 40(a)(i) for non-deduction of tax at source on payments made to foreign entities was sustainable, and whether the matter required fresh adjudication in light of the applicable treaty provisions.

Analysis: The payments were examined in the context of section 9(1)(vii), section 195, section 40(a)(i) and the India-Finland DTAA. The dispute turned on whether the services constituted fees for technical services and whether the treaty condition of "make available" was satisfied. The Tribunal noted that an earlier order in the assessee's own case for a prior assessment year had already remanded the matter for factual verification, particularly on whether the individual recipients satisfied the requirements of Article 15 of the DTAA. Since the relevant facts were treated as identical, the Tribunal followed the earlier decision and directed a fresh examination.

Conclusion: The disallowance issue was not finally decided on merits at this stage and the matter was remanded to the Assessing Officer for fresh adjudication.

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