AI Drafter 
TaxTMI 
TaxTMI 
2024 (8) TMI 1489
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....essing income of the Appellant at INR 52,78,75,682 as against returned income of Nil; Final assessment order passed is time-barred 2. erred in not passing the final assessment order within the time limit prescribed under section 153 of the Act which is the outer time limit for passing the final assessment order and hence, the final assessment order dated 05 January 2024 is time barred and liable to be quashed; Order issued under section 143(3) read with 144C(13) of the Act following the DRP directions dated 29 September 2023 is void and invalid on account of the directions being issued in violation of Circular No. 19/2019 dated 14 August 2019 3. erred in issuing the impugned final assessment order followi....
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....liable to be taxed under the provisions of the Act; 7. erred in making an addition of INR 1,28,46,717 by treating the corporate allocation charges provided by the assessee as FTS under the provisions of Article 12 of the India-USA DTAA without appreciating the fact that such services do not 'make available' any technical knowledge, know-how or skill to the customers in India and hence, not taxable under Article 12 of India-USA DTAA. Levy of interest under section 234A 8. erred in levying interest under section 234A of the Act amounting to INR 2,37,54,375. Levy of interest under section 234B 9. erred in levying interest under section 234B of the Act amounting to INR 3,69,51,250. L....
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....iscussed above, once it is established that the services which have been provided are specialized customer-based services, what remains to see is whether they pass the test of make available or not under India USA DTAA. Interpretation of make available clause will differ with specific areas of the services under consideration. For instance, interpretation of make available for a concern providing services for the agricultural sector vis-à-vis education sector would be vastly different from each other. In the same way interpretation of make available is different for a concern engaged in providing services revolving around a highly specialized sector such as Aircraft industry. The make available clause deals with not only making avail....
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.... 'not made available' to the clients so that in future they can repair & maintain their own. There is no transfer of technology, no transfer of skill or knowledge or processes. There is no imparting of experience or benefit. The ld. DRP wrongly interpreted that the 'enduring benefit' gained by the client by the way of repairs & maintenance is akin to 'make available' which cannot be accepted. Rather, it should be the enduring benefit to the clients to undertake repairs & manage the maintenance services, then only it can be considered that the 'make available' clause is satisfied. Since, such 'make available' clause is not satisfied, the services cannot be treated as FTS as per India-USA DTAA. 7. The appeal of the assessee on this ground ....
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.... legal services to Service Recipient consisting of some or all of review and drafting of contracts and agreements, corporate liability support, board meetings. 1. Design, support and maintain the global HR information systems, applications and processes, including: Learning Portal, Employee Scholar Program, Performance..... 2. Coordinate employees learning and development including: training, support and monitoring of Performance Feedback Tool; assist with talent development and recruiting, coordinate service awards; support relocations and assignments; and support other staffing, organizational and compensation needs as necessary. F. OPERATIONS SUPPORT Service Providers may provide operations and sourcin....
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....a USA DTAA. Interpretation of make available clause will differ with specific areas of the services under consideration. For instance, interpretation of make available for a concern providing software vis-à-vis factory equipment would be vastly different from each other. In the same way interpretation of make available is different for a concern engaged in providing services revolving around a highly specialized sector such as Aircraft industry. 'One size fits all' cannot be the underlying principle due to the different nature of business conducted/services given. The make available clause deals with not only making available technical knowledge or know-how or processes or consist of the development and transfer of a technica....