Treaty "make available" test excludes service receipts from royalty and FTS; limitation challenge became infructuous after amendment.

A subsequent statutory amendment rendered the reassessment and limitation challenge academic, so that ground was treated as infructuous without a merits ruling. On the substantive tax issue, receipts from voice termination, bandwidth and O&M services were analysed under Article 12 of the relevant tax treaties and the "make available" condition. Applying earlier coordinate bench decisions on similar facts, the services were not characterised as royalty or fees for technical services, and were treated as business profits not taxable in India in the absence of a permanent establishment. The tax additions were therefore deleted, resulting in partial relief.

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Issues: (i) Whether the challenge to the reassessment and limitation-related grounds survived in view of the subsequent statutory amendment and became infructuous; (ii) whether the receipts from voice termination, bandwidth, and O&M services were taxable in India as royalty or fees for technical services, or were business profits not taxable in the absence of a permanent establishment.

Issue (i): Whether the challenge to the reassessment and limitation-related grounds survived in view of the subsequent statutory amendment and became infructuous.

Analysis: The assessment was questioned on the ground that it was completed beyond the time limit and the reopening was invalid. However, the later amendment by the Finance Act 2026 to the limitation provision was treated as rendering the challenge academic. The objection was therefore not examined on merits after the statutory change.

Conclusion: The ground challenging reopening and limitation became infructuous and was dismissed against the assessee.

Issue (ii): Whether the receipts from voice termination, bandwidth, and O&M services were taxable in India as royalty or fees for technical services, or were business profits not taxable in the absence of a permanent establishment.

Analysis: The receipts were examined in the light of earlier coordinate bench decisions on identical facts. The treaty provisions under Article 12 of the relevant double tax avoidance agreements were treated as materially similar, and the "make available" requirement was considered central to the characterization of the receipts. Following the earlier view, the services were not treated as royalty or fees for technical services, and the business profits position was accepted in the absence of a permanent establishment in India.

Conclusion: The taxability additions on this issue were deleted and the issue was decided in favour of the assessee.

Final Conclusion: The appeals were disposed of by upholding the limitation-related dismissal as infructuous while granting relief on the substantive taxability dispute, resulting in a partial allowance of the assessee's appeals.

Ratio Decidendi: Where the treaty text is materially similar and the services do not satisfy the "make available" condition, receipts for such services are not taxable as royalty or fees for technical services, and a subsequently overtaken limitation challenge may be dismissed as infructuous.

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