TaxTMI 
TaxTMI 
2024 (8) TMI 1670
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.... be set aside. 2. That on the facts and in the circumstances of the case and in law, the Ld. AO/DRP grossly erred in concluding that the receipts amounting to INR 28,64,22,509 accruing to the Appellant from its Associated Enterprises (AEs) in India on account of provision of routine support services are in the nature of Fee for Technical Services ('FTS') under the India-UK Double Taxation Avoidance Agreement ('DTAA') and thus are liable to taxation in India. 3. On the facts & circumstances of the case & in law, the Ld. AO/DRP grossly erred in misinterpreting the nature and object of standard routine support services and alleging that the services rendered by the Appellant are of a technical and consulting nature that enhance the knowledge and skill base of the recipient's employees and hence satisfy the 'make available' test. 4. That on the facts and in the circumstances of the case and in law, Ld. AO/DRP has erred in holding that the services provided by the Appellant satisfy the twin test of rendering services and making technical knowledge available at the same time and thus partake the character of FTS. 5. That on ....
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....th its group entity in India, i.e., PBIL for rendering certain centralized administrative services (information technology, human resource, marketing and communication etc.) of routine nature to bring in efficiency in managing the operations of PBIL. 6. The details of services provided to PBIL under the service agreement are as follows: Nature Details Marketing & communication ● Providing assistance to PBIL with its marketing strategies and giving shape to its marketing campaigns. ● Offering assistance in devising digital marketing strategy, managing social media apps, providing standard marketing related brochures, templates and pamphlets that are customized by4PBIL based upon the Indian market. ● Reviewing PBIL's marketing strategies for content & quality. ●Supporting PBIL in organizing the marketing workshops for school management team and provides mobile applications helping staff in learnings, workshops on communications in general, workshops on reporting structures, etc. ● Providing designs that helps PBIL in making prospectus; and helping PBIL with various collaborations with global universities. ● Assistin....
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.... on best practice guidelines for delivering maximum efficiencies. ● Assisting in integration support to manage integration budget and roll out of company policies. ● Undertaking macro level analysis on market conditions such as FDI and economic growth to help better assess growth opportunities in the market. 7. In consideration for the above services, the Assessee received Rs. 28,64,22,509/- from PBIL. 8. The license fees received by the Assessee for providing access to the online platform to the afore-mentioned societies amounting to Rs. 12,79,94,791/- was offered to tax as royalty income. 9. The receipts on account of cross charges amounting to Rs. 28,64,22,509/- from routine services provided to PBIL was not offered to tax in India relying on the provision of section 90(2) of the Act read with Article 13(4)(c) of the India-UK DTAA since these are routine managerial activities which do not allow PBIL to enjoy any right, property or information nor does it make available any technical knowledge, experience, skill, know how or processes to PBIL. Due to the restricted nature of the definition of Fees for Technical Services ('FTS') in India-UK DTAA ....
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.... to its marketing campaigns. ● Offering assistance in devising digital marketing strategy, providing standard marketing related brochures, templates and pamphlets that are customized by PBIL based upon the Indian market. ● Supporting PBIL in organizing marketing workshops for school management team, workshops on communications in general, workshops on reporting structures, etc. ● Reviewing PBIL's marketing strategies for content & quality. ● Child Safeguarding Allegations Policy along with SOP ● General Data Protection Regulations on Child Protection Information Sharing ● Guidance on Safeguarding & Child Protection Policy and Safe Working Practice at School ● Guidance to Schools on field trips ● Once the policies/SOPs are provided by the Assessee, same are subsequently modified/amended basis the comments received from PBIL. 14. The Assessee submitted before the ld. DRP that it has not made available any technology to PBIL by way of which PBIL is enabled to absorb and apply the technology on its own, without any recourse to the Assessee in future. It was sub....
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....TAT) ⮚ Sun Microsystems India (P.) Ltd. (48 taxmann.com 93) (Kar. HC) ⮚ Veeda Clinical Research (P.) Ltd (35 taxmann.com 577) (Ahd. ITAT) ⮚ Boston Consulting Group (94 ITD 31) (Mumbai ITAT) ⮚ Bharti AXA General Insurance Co. Ltd (234 CTR 62) (AAR) ⮚ Raymond Ltd. v. DCIT 86 ITD 791 (Mumbai ITAT) 19. Based on the above case laws, the Id. AR argued that "the 'make available' test is fulfilled if the service recipient is able to absorb the technical knowledge, know-how, processes and skill. Technology is considered 'made available' when the service recipient is enabled to apply the technology contained therein, i.e., the service recipient is able to make use of the technical knowledge, etc., by himself for his own benefit and without recourse to the service provider in future. Therefore, 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 service provider. Just because technical knowledge, experience is used by the service provider, the services ....