Make available test excludes marketing support receipts from fee for included services under the India-USA tax treaty.

Marketing support services consisting of market research, regulatory updates, marketing strategy advice, promotion-related support and information gathering were characterised as commercial assistance, not technical or consultancy services in the treaty sense. Even if a consultancy element existed, the record did not show that technical knowledge, experience, skill, know-how or processes were made available to the Indian recipient so it could independently perform the functions later; an enduring business benefit alone was insufficient to satisfy the make available test. Consistent tax treatment of identical receipts in the preceding year also supported this position. The receipts were therefore not taxable as fee for included services under Article 12(4)(b) of the India-USA tax treaty, and the addition was deleted.

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Issues: Whether consideration received for marketing support services constituted fee for technical services or fee for included services under Article 12(4)(b) of the India-USA tax treaty.

Analysis: The services under the marketing support services agreement consisted of market research, regulatory updates, advice on marketing strategy, promotion-related support, and information gathering for the US market. These activities were held to be in the nature of market support and commercial assistance, not technical or consultancy services in the statutory sense. Even assuming some consultancy element, the record did not show that technical knowledge, experience, skill, know-how, or processes were made available to the Indian recipient so that it could independently perform such functions in future. The mere fact that the services conferred an enduring business benefit was held to be insufficient to satisfy the make available requirement. The consistent treatment of identical receipts in the preceding assessment year also supported the assessee's stand.

Conclusion: The receipts were not taxable as fee for included services under Article 12(4)(b), and the addition was deleted.

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