Make available test under India-USA DTAA not met where project-specific risk and bid services did not transfer enduring technical know-how.

Fees paid to a U.S. entity for project-specific risk evaluation and bid-related services were not taxable as fees for included services under Article 12(4)(b) of the India-USA DTAA because the services did not make available technical knowledge, experience, skill, know-how, or processes to the Indian affiliate. The court noted that Article 12 covers technical and consultancy services, but clause (b) applies only where the recipient acquires enduring technical capability or a transferable technical plan or design. Limited use of advice for a single project, or internal circulation of the results within the group, was insufficient to satisfy the make available test.

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Issues: Whether fees paid for project-specific risk evaluation and bid-related services rendered by a United States entity to its Indian affiliate constituted fees for included services under Article 12(4)(b) of the India-USA DTAA on the basis that technical knowledge, experience, skill, know-how, or processes were made available to the recipient.

Analysis: The expression "fees for included services" under Article 12 applies to both technical and consultancy services, but taxation under clause (b) arises only when such services make available technical knowledge, experience, skill, know-how, or processes, or development and transfer of a technical plan or design. The services in question were confined to project-wise risk evaluation and bid review, and the benefit was limited to the particular assignment. The mere circulation of results within the group or the utility of the advice for that project did not amount to making available technical knowledge or consultancy in a manner capable of enduring use by the Indian entity.

Conclusion: The "make available" requirement was not satisfied and the fee did not fall within Article 12(4)(b); the finding was in favour of the assessee.

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