Make-available clause for technical services requires independent use of know-how, not mere managerial or commercial support.

Under the India-Singapore DTAA, business support services and referral fees are taxable as fees for technical services only if the make-available condition is met, meaning the Indian recipient must be enabled to apply the underlying technical knowledge, experience, skill, know-how or processes independently after the service ends. Managerial, consultancy-oriented or support services do not by themselves satisfy this test, and incidental commercial benefit is insufficient. Where treaty taxation fails, section 90(2) prevents the Act from being used to expand the charge. Prior treatment of the receipts by the assessee does not bar a correct claim on the merits.

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Issues: Whether the receipts for business support services and referral fees were taxable as fees for technical services under Article 12(4) of the India-Singapore DTAA on the footing that the services made available technical knowledge, experience, skill, know-how or processes to the Indian recipient.

Analysis: The decisive question was whether the services enabled the Indian entity to perform similar functions on its own without recourse to the service provider. The services were managerial, consultancy-oriented and support-based, but the record did not show that any technical knowledge or skill was transmitted and absorbed by the recipient so as to remain with it after the contract ended. Mere incidental advantage, strategic assistance or an enduring commercial benefit was held insufficient. Once treaty taxability failed, the Act could not be invoked to broaden the charge in view of section 90(2), and the assessee's earlier treatment of the receipts did not create a bar to a correct claim on merits.

Conclusion: The make-available condition was not satisfied and the receipts could not be taxed as fees for technical services; the addition was deleted in favour of the assessee.

Final Conclusion: The appeal succeeded on the principal transfer-pricing and treaty-taxability issue, and the remaining grounds became academic.

Ratio Decidendi: Under a make-available clause, services are taxable as technical services only if the recipient is enabled to apply the underlying technology, knowledge or skill independently without continued dependence on the service provider.

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