Make-available requirement excludes software analytics subscription receipts from fees for included services where customers gain no independent technical capability.

Article 12(4)(b) of the India-USA DTAA treats technical or consultancy receipts as fees for included services only where they make available technical knowledge, experience, skill, know-how or processes, or involve developing and transferring a technical plan or design. Access to product analytics software and related support provided customers with software-generated analytics and commercial information, but did not transfer source code, technical processes, or the ability to apply the underlying technology independently after the subscription. Use of sophisticated software or receipt of its reports does not itself meet the make-available requirement. The receipts are therefore not taxable as fees for included services.

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Issues: Whether receipts from providing access to product analytics software and related support services constitute fees for included services under the India-USA Double Taxation Avoidance Agreement.

Analysis: Article 12(4)(b) requires that technical or consultancy services make available technical knowledge, experience, skill, know-how or processes, or involve development and transfer of a technical plan or design. The subscription gave customers access to software-generated analytics and commercial information, without transferring source code, technical processes, or the capability to independently apply the underlying technology after the subscription ended. The mere use of technically sophisticated software, or receipt of reports produced through it, does not satisfy the make available requirement.

Conclusion: The receipts are not fees for included services and are not taxable as such; the addition is deleted.

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