Make available test bars tax on aircraft maintenance and reimbursement-style charges absent transfer of technical know-how.

Aircraft repair and maintenance receipts were outside fees for included services under section 9(1)(vii) and Article 12(4) of the India-US DTAA because the work did not make available technical knowledge, skill, know-how, process or technical design to the recipient for independent future use. The make available test requires more than technically skilled services or an incidental benefit; the recipient must be able to apply the technology on its own after the contract ends. Reimbursement-style corporate allocation charges were also not taxable, as the factual findings showed reimbursement of actual expenses without any technical or consultancy service, training, or transfer of operational knowledge to the Indian entity.

---

---

Issues: Whether receipts for aircraft repair and maintenance services and reimbursement-style corporate allocation charges were taxable as fees for technical services or fees for included services under section 9(1)(vii) of the Income-tax Act, 1961 and Article 12(4) of the India-US DTAA, including whether the services satisfied the "make available" requirement.

Analysis: The receipts from repair and maintenance services were held to be outside the scope of fees for included services because the work did not result in a transfer of technical knowledge, skill, know-how, process, or technical design to the recipient so that the recipient could apply the same independently in future. The "make available" test requires more than rendering technically skilled services or conferring an incidental benefit; the recipient must be enabled to use the technology on its own after the service contract ends. The same approach governed the reimbursement-style corporate allocation charges, where the factual findings showed that the amounts were received as reimbursement of actual expenses and that no technical or consultancy services, training, or transfer of operational knowledge had been provided to the Indian entity.

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

---