Make available test not met for routine support services; payments were not taxable as fee for technical services.

Routine support and administrative services in marketing, human resources, finance, information technology, legal, commercial affairs and facilities management were held not to be fee for technical services under the India-UK DTAA. The treaty's make available test was not satisfied because the recipient was not shown to have been enabled to apply technical knowledge, skill, experience or know-how independently in future without further recourse to the service provider. Mere assistance, standard guidance, efficiency enhancement or incidental benefit was insufficient. The receipt for these services was therefore not taxable as fee for technical services under Article 13(4)(c), and the issue was decided in favour of the assessee.

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Issues: Whether the consideration received for routine support and administrative services rendered to the Indian affiliate was taxable as fee for technical services under the India-UK DTAA on the basis that the services satisfied the make available test.

Analysis: The services found on record were routine support functions in areas such as marketing, human resources, finance, information technology, legal, commercial affairs and facilities management. The Tribunal noted that the Revenue did not establish by cogent material that the Indian affiliate was enabled to apply any technical knowledge, experience, skill or know-how on its own in future without recourse to the assessee. Mere assistance, standard guidance, efficiency enhancement or incidental benefit was held insufficient to show that technology or technical knowledge had been made available within the meaning of the treaty.

Conclusion: The receipt for the impugned support services was not taxable as fee for technical services under Article 13(4)(c) of the India-UK DTAA and the issue was decided in favour of the assessee.

Ratio Decidendi: Routine support services do not constitute fee for technical services under a make available clause unless they enable the recipient to independently apply the technical knowledge, skill, experience or know-how in future without further recourse to the service provider.

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