Make available test under India-USA DTAA not satisfied for support services, so receipts were not taxable as fees for included services.

Receipts for information technology and administrative support services were not Fees for Included Services under Article 12 of the India-USA DTAA because the services did not make available technical knowledge, experience, skill, know-how or processes to the Indian affiliate for independent future use. The arrangement reflected continuing support and assistance, with no transfer of technology or evidence that the recipient could apply the services on its own after the provider's involvement ended. Mere incidental or enduring advantage was insufficient, so the receipts were not taxable in India on that basis.

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Issues: Whether the receipts from provision of information technology and other administrative services to the Indian affiliate constituted Fees for Included Services under Article 12 of the India-USA Double Taxation Avoidance Agreement and were taxable in India.

Analysis: The decisive test under Article 12(4)(b) is whether the services make available technical knowledge, experience, skill, know-how or processes so that the recipient is enabled to apply the technology on its own. The services in question were rendered under a continuing group services arrangement and were in the nature of support and assistance. The material showed no transfer of technology, no imparting of know-how capable of independent future use by the recipient, and no evidence that the Indian affiliate could perform the services without recurring assistance from the service provider. Mere receipt of an incidental or enduring advantage was held to be insufficient. The reasoning was aligned with the judicial understanding that the make available condition requires the recipient to be equipped to use the technology independently after the contract ends.

Conclusion: The receipts did not fall within Fees for Included Services under the India-USA DTAA and were not taxable in India on that basis.

Ratio Decidendi: Services are taxable as fees for included services only when they make available technical knowledge, experience, skill, know-how or processes to the recipient so that the recipient can apply them independently in future without the provider's continuing assistance.

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