Make available test under India-USA DTAA excludes e-publishing support from fees for included services, while interest needs recomputation.

Under Article 12(4) of the India-USA DTAA, e-publishing, sub-contracting, and related sales and marketing support services were not taxable as fees for included services because they did not make available technical knowledge, experience, skill, know-how, or processes enabling independent future use by the recipient. The connected receipt was therefore treated as outside the scope of taxable FIS. The issues relating to interest under sections 234A and 234B, and refund computation, depended on verification of the extended due date, the actual return-filing date, and the computation sheet, so they required fresh examination and recomputation by the Assessing Officer.

---

---

Issues: (i) Whether the sub-contracting charges and allied sales and marketing support receipts were taxable in India as fees for included services under Article 12(4) of the India-USA DTAA on the application of the "make available" test; (ii) whether the interest adjustments under sections 234A and 234B and the refund-related computation required verification and recomputation.

Issue (i): Whether the sub-contracting charges and allied sales and marketing support receipts were taxable in India as fees for included services under Article 12(4) of the India-USA DTAA on the application of the "make available" test.

Analysis: The Tribunal followed its own decision in the assessee's earlier year and held that the services rendered in the nature of e-publishing and related support did not transfer technical knowledge, experience, skill, know-how, or processes to the service recipient in a manner that enabled independent future use. The "make available" requirement under Article 12(4) was therefore not satisfied. On that basis, the connected sales and marketing support receipt was also held to fall outside the scope of taxable FIS.

Conclusion: The issue was decided in favour of the assessee and the related addition was deleted.

Issue (ii): Whether the interest adjustments under sections 234A and 234B and the refund-related computation required verification and recomputation.

Analysis: The Tribunal accepted that the question of levy of interest and the adjustment relating to refund depended upon factual verification of the extended due date, the actual date of return filing, and the correctness of the computation sheet. Those matters were therefore sent back to the Assessing Officer for examination and fresh computation in accordance with law.

Conclusion: The issue was remanded for verification and fresh adjudication.

Final Conclusion: The substantive transfer-pricing style taxability dispute was resolved for the assessee, while the interest and computation issues were restored to the Assessing Officer for limited verification, resulting in partial relief overall.

Ratio Decidendi: For Article 12(4) of the India-USA DTAA, technical or consultancy services are taxable as fees for included services only when they make available technical knowledge, experience, skill, know-how, or processes so that the recipient can independently apply them in future.

---