Fees for technical services under the India-Ireland DTAA require customised human assistance, not standard cloud product resale.

A writ petition against a withholding-tax certificate was held maintainable because the certificate had been issued with higher-authority approval, making revision under Section 264 an empty formality and the alternative remedy no bar to writ jurisdiction. On the merits, receipts under a reseller arrangement were not treated as fees for technical services under Article 12(3)(b) of the India-Ireland DTAA or Section 9(1)(vii) where the arrangement involved standard cloud-based products on a principal-to-principal basis, with no transfer of intellectual property and no evidence of customised technical or consultancy services. The withholding-tax determination was therefore set aside and remitted for fresh consideration on the correct treaty test.

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Issues: (i) Whether the writ petition was maintainable despite the availability of an alternative statutory remedy; (ii) whether the remittances received by the assessee under the reseller arrangement constituted fees for technical services under Article 12(3)(b) of the India-Ireland DTAA and Section 9(1)(vii) of the Income-tax Act, 1961.

Issue (i): Whether the writ petition was maintainable despite the availability of an alternative statutory remedy.

Analysis: The impugned withholding-tax certificate had been issued after approval of higher authority. In such circumstances, a revision under Section 264 of the Income-tax Act, 1961 would be an empty formality, as the authority whose approval was taken could not realistically be approached in revision. The availability of an alternate remedy therefore did not bar writ jurisdiction.

Conclusion: The writ petition was maintainable and the preliminary objection was rejected.

Issue (ii): Whether the remittances received by the assessee under the reseller arrangement constituted fees for technical services under Article 12(3)(b) of the India-Ireland DTAA and Section 9(1)(vii) of the Income-tax Act, 1961.

Analysis: Fees for technical services under the treaty require consideration for managerial, technical or consultancy services, and the governing test remains that the service must ordinarily involve specialised, individualized and technical assistance rather than a mere facility. The Court applied the settled principle that technical services, when read with managerial and consultancy services, import a human element and a service rendered to meet special needs, not a standard automated platform offered generally to users. On the reseller agreement, the assessee was found to be supplying standardized cloud-based products on a principal-to-principal basis, with no transfer of intellectual property and no material showing customized technical services. The references to technical assistance and training in the agreement were treated as incidental to marketing and resale support, not the core consideration for the payments. The record also did not establish that the consideration was paid for customized technical services or that the authority had examined the issue on that basis.

Conclusion: The impugned order could not be sustained on the existing record in treating the receipts as fees for technical services.

Final Conclusion: The withholding-tax determination was set aside and the matter was sent back for fresh consideration in light of the Court's observations on the nature of the payments and the correct treaty test.

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