Make available test limits tax on online learning platform receipts where facilitation did not transfer technical know-how.

Receipts from an online learning platform were held outside taxation as fees for technical services or fees for included services under the Income-tax Act and Article 12(4) of the India-USA DTAA because the platform acted only as an aggregator and facilitator. The content, testing, certification and academic inputs came from participating institutions and companies, and the Revenue failed to show that technical knowledge, skill, know-how or processes were transferred so recipients could apply them independently. Customised features or human involvement alone were insufficient without satisfaction of the make available condition. The tribunal's factual findings were not shown to be perverse, so the tax challenge failed.

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Issues: Whether the receipts earned by an online learning platform from provision of content and user services were chargeable to tax as fees for technical services or fees for included services under the Income-tax Act, 1961 and Article 12(4) of the India-USA Double Taxation Avoidance Agreement, and whether the make available condition was satisfied.

Analysis: The services were found to consist of access to courses and related platform facilitation, while the course content, testing, certification and academic inputs were provided by the participating educational institutions and companies. The findings recorded that the assessee acted as an aggregator or facilitator and that the Revenue had not established that technical knowledge, skill, know-how or processes were transferred to the recipients so that they could independently apply them without the assessee's aid. The existence of customised features or human involvement was held insufficient by itself to bring the receipts within the treaty definition unless the make available requirement was met. The factual findings of the appellate tribunal were not shown to be perverse.

Conclusion: The receipts were not taxable as fees for technical services or fees for included services, and the Revenue's challenge failed.

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