Make available test under India-UK DTAA: e-invoicing platform receipts were not technical fees because no independent technical know-how passed to the user.

Receipts from providing e-invoicing platform services were not fees for technical services under Article 13(4)(c) of the India-UK DTAA because the Indian affiliate received only a non-exclusive licence to use the proprietary platform, while the software, source code and underlying rights remained with the provider. The training and support were limited to operating the platform for reselling and delivering the provider's services, and did not transfer technical know-how, experience or skill that could be independently applied after the contract ended. Applying the "make available" test, the Delhi HC held that mere use of a technologically driven service is insufficient unless the recipient is enabled to use the technology independently in future. The FTS characterisation failed.

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Issues: Whether the receipts from providing e-invoicing platform services to the Indian affiliate were chargeable as fees for technical services under Article 13(4)(c) of the India-UK DTAA, and whether the services made available technical knowledge, experience, skill, know-how or processes to the recipient.

Analysis: The services were examined in the light of the contractual arrangements, which showed that the assessee granted only a non-exclusive licence to use its proprietary e-invoicing platform and retained all rights in the software and source code. The Indian affiliate did not acquire any technology, intellectual property, or right to exploit the platform independently. The training and support provided were confined to enabling the affiliate's personnel to use the platform for reselling and delivering the assessee's services, and did not transfer the underlying technical know-how or capability to perform the services on its own after the contract ended. Applying the settled meaning of the "make available" requirement, the Court held that mere use of a technologically driven service, or assistance in operating it, is insufficient unless the recipient is enabled to apply the technology independently in future.

Conclusion: The receipts did not constitute fees for technical services under Article 13(4)(c) of the India-UK DTAA and were not taxable in India on that basis.

Final Conclusion: The appeals succeeded, and the assessments founded on the FTS characterization could not be sustained.

Ratio Decidendi: Under Article 13(4)(c) of the India-UK DTAA, technical or consultancy services are taxable as FTS only when they confer on the recipient the ability to apply the underlying technology, skill or know-how independently in the future, and not when they merely enable the recipient to use the provider's proprietary service or platform.

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