TaxTMI 
TaxTMI 
2010 (3) TMI 108
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.... to achieve the provision of seamless, consistent, high-quality client service within the Area. 2. Ernst & Young (EMEIA) Services Limited is a limited liability company incorporated under the laws of England and Wales. This Company has been formed specifically to facilitate the objective of providing support in various fields such as Area, Global and Market Development etc. to all the member entities of the EY organization so that they may gain access to standardized human, financial and other resources to ensure that consistent, high quality professional services are provided to the client base of all members of the EY organization. EMEIA, inter alia, provides Area Services, Market Development Support Services and Global Services as detailed in the Schedule to the Area Services and Market Development Agreement. Such support is provided from UK and it does not have any Permanent Establishment or fixed base in India. The terms and conditions under which all EY member entities would get such support from EMEIA are documented in the form of the Area Services and Market Development Agreement (for short, 'the Agreement') which has been filed. Under the Agreement, costs incurred for p....
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....n the Governments of India and USA concerning "fees for included services" (Article 12), the import and connotation of the first part of definition in clause (b) of para 4 i.e. "make available" technical knowledge, experience etc. has been explained. The MOU clarifies that technology will be considered 'made available' when the person acquiring the service is enabled to apply the technology. The MOU further clarifies that the fact that the provision of the service may require technical input by the person providing the service does not per se mean that technical knowledge, skills, etc. are made available to the person paying for the service. 7. It is the contention of the applicant that the services rendered to the applicant by EMEIA does not satisfy the test of 'make available' under Article 13 of the DTAA as they do not result in transfer of any technical know-how, technical plan/design, though some of the services broadly answer the description of consultancy or technical services. The applicant submits that the work of EMEIA is confined to providing support and access to central resources for developing business strategies and plans at Area level, providing support in implem....
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.... knowledge, skills, etc., must remain with the person receiving the services even after the particular contract comes to an end. The services offered may be the product of intense technological effort and a lot of technical knowledge and experience of the service provider would have gone into it. But that is not enough to fall within the description of services which make available the technical knowledge, etc. The technical knowledge or skills of the provider should be imparted to and absorbed by the receiver so that the receiver can deploy similar technology or techniques in future without depending on the provider." 10. In the case of Anapharm Inc. in re[304 ITR 394], this Authority observed: It is, thus, fairly clear that mere provision of technical services is not enough to attract article 12(4)(b). It additionally requires that the service provider should also make his technical knowledge, experience, skill, know-how, etc. known to the recipient of the service so as to equip him to independently perform the technical function himself in future, without the help of the service provider. In other words, payment of consideration would be regarded as "fee for technical/incl....
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....dustry & Business Development - Formulating Priority Accounts strategy for the Member Firms of Ernst & Young Global focused on enhancing Industry effectiveness, driving profitable revenue growth; Formulating Industry Sector Strategy for the Member Firms of Ernst & Young Global focused on enhancing Industry effectiveness, driving profitable revenue growth; Development of ASQ strategy for the Member Firms of Ernst & Young Global. Policy enshrines a common methodology and framework to measure the quality of services provided to clients. 3. Knowledge Management and Sharing Driving the delivery of a globally consistent knowledge strategy and plan to enable "our people", Service Line, Sector, Account and Business Development priorities. Global knowledge enables the delivery of strategic analysis and research, global competitive and market intelligence analysis and reporting. 4. Marketing Supporting the Market Leadership strategy for the Member Firms of Ernst & Young Global by enhancing EY's reputation among key stakeholders. 5. Internal Communications Delivering a global internal communications program that connects and engages the partners and people of the Me....
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....l, Area and country leaders, including in relation to supporting technology. Creating policies for, and implementing, a common client invoicing and settlement procedure by Member Firms. 13. Technology and Infrastructure Providing wide range of technology applications and support services to the Member Firms, including global data center support services. Centralized procurement of software licenses from third party vendors, such as e-mail systems, computer security systems, voice mail connectivity and internet services. Development and deployment of Global applications and methodologies, including Global Financial Information System. 14. Centralized Procurement Services Procuring on a global basis goods and services that can be advantageously so procured, including credit facilities, health benefits, and other financial services required by Member Firms or their employees. 13. In the course of hearing we have asked the learned counsel for the applicant to explain various items in the form of a note and supporting documents to illustrate the contents of each service. The learned counsel has accordingly filed a Paper Book containing 89 pages. We shall refer to....
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....ed to above and allow all the member firms including the Applicant to use the same. No technology is made available. All member firms are allowed to use it in a uniform manner. Sample screen shorts of the various applications and support services received from time to time are placed on record. 3. Knowledge Management and Sharing The various services rendered are: Analysis on focus markets, competitive intelligence within a particular sector /country. The purpose of above services is stated to be to respond better to moves from competitors and stay better informed on the sectors and to provide higher quality service to clients. 15. First of all, some of the services enumerated above have the flavour of management services. Services of managerial nature are not included within Article 13 unlike many other treaties. Only technical and consultancy services are included. Many of them do answer that description. However, the more important question is whether EMEIA, U.K. has made available to the applicant any technical knowledge, experience, skills or know-how by providing the 'support services' noted above. In our view, that question admits only of an answer in the negativ....