2022 (2) TMI 1185

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.... assessee read as under: 1. That on the facts and circumstances of the case and in law, the order passed by the Assessing Officer ("AO") is bad in law as well as in facts. 2. That on the facts and circumstances of the case and in law, the AO/Dispute Resolution Panel ("DRP") has erred in holding that the business support services provided/rendered by the Appellant qualify as fees for technical services as per the India - Belgium tax treaty (read with India- Portugal tax treaty), since such services fall within the meaning of 'make available' under the tax treaty. 3. That the AO/DRP did not discuss in detail as to how the business support services rendered by the Appellant from Belgium qualify the test of "make-available" under ....

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....g Officer, the assessee gave a break-up of the income, which, it has all along claimed as absolutely exempt. The details given by the assessee are as under: i) Group Management Fees : Rs. 1,44,08,953/- ii) Royalty : Rs. 1,19,38,913/- iii) Interest on ECB : Rs. 38,07,451/- 8. The quarrel is in respect of group management fees of Rs. 1,44,08,953/-. 9. The Assessing Officer was of the opinion that this amount has been received by the assessee for rendering different services as per the provisions of service agreement with MIPL. On perusing the details of these services, the Assessing Officer was of the opinion that they are both managerial and consultancy services including the consultancies being in technical nature as well. Referring....

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....he services rendered by the assessee do make available knowledge, experience, know-how to the recipient and this is clearly visible when one examine the nature of the services rendered and the consequential benefits obtained by the recipient. 14. The Assessing Officer also dismissed the contention of the assessee that these services have been rendered from outside India drawing support from Explanation to section 9(1) of the Act. Accordingly, the Assessing Officer treated Rs. 1,44,08,953/- as FTS. 15. Objections were raised before the DRP but the same were of no avail. 16. Before us, the ld. counsel for the assessee reiterated what has been stated before the lower authorities. It is the say of the ld. counsel for the assessee that the DR....

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....ture and definitely do not make available experience, know-how to the recipient MIPL. In fact, the DRP itself has accepted at Para 6.2 of its order that as per the service agreement, the services provided by the assessee are in the nature of routine support services which are not very complex in nature. 20. Considering the protocol to the India Belgium Tax treaty, tax treaty between India and Portugal has to be considered for most favourable nation clause. Under the India Portugal Trade Tax Treaty, fees for included services is defined as consideration for rendering of any technical or consultancy services if such services are ancillary and subsidiary to the application or enjoyment of the right, property or information of which royalty pa....