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“Section 12(4)(b)”

Section References (mined)Section 12Section 12(4)(b)7 judgments

The decision most relied on for Section 12(4)(b) is ACG Associated Capsule Private Limited v. Commissioner of Income Tax, Central IV, Mumbai (3 SCC 321), cited in 89 judgments on BharatTax.

Leading authorities on Section 12(4)(b)

ACG Associated Capsule Private Limited v. Commissioner of Income Tax, Central IV, Mumbai
3 SCC 321 · 2022 · Reported
89
citing judgments

Profits of a business are computed under the head 'Profits and Gains of Business or Profession' and then reduced by specific receipts mentioned in Explanation (baa) to Section 80HHC. This means that for the purposes of Section 80HHC, only profits computed under the business head are considered, with subsequent adjustments for specified receipts.

Continental Construction Ltd. v. CIT
195 ITR 81 · 1992 · Supreme Court
50
citing judgments

Advice, such as that provided by a lawyer or a financial consultancy firm on loan modalities, constitutes 'technical service'. This interpretation is relevant in the context of fees for technical services, especially under tax treaties.

IDS Software Solutions P. Ltd. v. ITO
122 TTJ 410 · 2009 · ITAT
50
citing judgments

An Indian company that exercises control and supervision over a seconded employee and bears the salary cost is an economic employer. Such a company is not liable to withhold tax on the reimbursement of salary to the overseas company, thereby avoiding disallowance under Section 40(a)(i).

L.RS. AND ORS. (2016)10 SCC 315 and PRINCIPAL COMMISSIONER OF INCOME TAX, BANGALORE & ORS. v. SOFTBRANDS INDIA P. LTD.
406 ITR 513 · 2018 · High Court
48
citing judgments

For comparability analysis in transfer pricing, giant companies with significantly higher turnover and brand value cannot be compared with small-sized companies, and such companies should be excluded from the comparable set.

Director of Income Tax v. Sheraton International Inc.
178 Taxmann 84 · 2009 · High Court
48
citing judgments

Receipts do not constitute 'fees for technical services' under Section 9(1)(vii) of the Income Tax Act and Article 12(4)(b) of a Double Taxation Avoidance Agreement (DTAA), specifically when interpreting the 'make available' clause.

CIT v. Farida Leather Co.
66 Taxmann.com 321 · 2016 · High Court
44
citing judgments

Commission paid to non-resident foreign agents for procuring export orders, where services are rendered outside India and agents lack a permanent establishment in India, is not taxable in India and thus not subject to TDS under Section 195.

CBDT v. Oberoi Hotels India (P.) Ltd.
97 Taxmann 453 · 1998 · Supreme Court
38
citing judgments

The Supreme Court decision in CBDT v. Oberoi Hotels India (P.) Ltd. is not applicable to cases concerning the denial of approval under Section 80-O of the Act when services were provided to a non-resident, as the facts and context of that decision are different.

Director of Income-tax v. New Skies Satellite
140 TTJ 195 · 2011 · ITAT
37
citing judgments

Royalty income does not arise if the payer merely receives a service without control or possession of the equipment used to provide that service. The right to use equipment implies the payee has control and can employ the equipment for their own purposes.

Judgments citing Section 12(4)(b)

Bain and Company, Usa vs. DCIT, Gurgoan

In the result, appeal of assessee in ITA Nos

ITA 3056/DEL/2023[2021-22]Status: DisposedITAT Delhi22 Aug 2025AY 2021-22

Bench: Shri Vijay Pal Rao & Shri Naveen Chandra

For Appellant: Shri Himanshu Sinha, AdvFor Respondent: Ms. Ekta Jain, CIT- DR
Section 143(3)

behalf of the clients. There is no technical skill or knowhow employed in industries research services. He, thus, submitted, the conditions of section 12(4)(b) of the Tax Treaty are not satisfied. More so, when the assessee is providing such services under cost reimbursement agreement since 2010. He submitted

Bain & Company, Inc., Usa vs. DCIT Intl. Taxation Circle, New Delhi

In the result, appeal of assessee in ITA Nos

ITA 1677/DEL/2023[2020-21]Status: DisposedITAT Delhi22 Aug 2025AY 2020-21

Bench: Shri Vijay Pal Rao & Shri Naveen Chandra

For Appellant: Shri Himanshu Sinha, AdvFor Respondent: Ms. Ekta Jain, CIT- DR
Section 143(3)

behalf of the clients. There is no technical skill or knowhow employed in industries research services. He, thus, submitted, the conditions of section 12(4)(b) of the Tax Treaty are not satisfied. More so, when the assessee is providing such services under cost reimbursement agreement since 2010. He submitted

Attachmate Corporation, Usa vs. ACIT, Circle 1(1)(1), International Taxation, New Delhi

In the result, the appeals are partly allowed

ITA 782/DEL/2023[2020-21]Status: DisposedITAT Delhi17 Oct 2024AY 2020-21

Bench: Shri Saktijit Dey, Vice- & Shri S Rifaur Rahman

Section 143(3)Section 144C(13)

call support services. It is a fact on record that the Assessing Officer has treated the aggregate receipt as FIS under section 12(4)(b) of India – USA DTAA. While coming to such conclusion, the Assessing Officer has stated that in absence of proper bifurcation furnished by the assessee

Cameron(Singapore) Pte. Ltd., Tamilnadu vs. ACIT, Circle Int. Tax-1(2)(1), Delhi

In the result, appeal of the assessee is partly allowed as indicated above

ITA 9110/DEL/2019[2016-17]Status: DisposedITAT Delhi11 Dec 2023AY 2016-17

Bench: Shri G. S. Pannu, Hon’Ble Vice-A N D Shri Challa Nagendra Prasadआ.अ.सं/.I.T.A No.9110/Del/2019 िनधा"रणवष"/Assessment Years: 2016-17 Cameron (Singapore) Pte Ltd., Acit, बनाम C/O. Cameron Manufacturing Vs. (India) Pvt. Ltd., Circle Int. Tax: 1(2)(1) Iii Floor, Tidel Park, Vilankurichi Road, Civil New Delhi. Aerodrome Post, Coimbatore, Tamil Nadu – 641 014. Pan No. Aadcc5259P अपीलाथ" / Appellant ""यथ"/ Respondent

For Appellant: Shri Amit Arora, C. A
Section 143(3)Section 144C(13)Section 144C(5)Section 234BSection 271(1)(c)Section 9(1)(vii)

skill etc. enabling the recipient of service to apply them independently. That being the case, in our considered opinion, the conditions of section 12(4)(b) are not satisfied. Therefore, we hold that the receipts are not in the nature of FTS. This ground is allowed.” 6. On perusal

Bain & Company Inc., Haryana vs. DCIT, Int. Taxation, Haryana

In the result, the appeal is allowed as indicated above

ITA 567/DEL/2022[2018-19]Status: DisposedITAT Delhi29 Aug 2023AY 2018-19

Bench: Shri G.S. Pannu, Presidenet & Shri Saktijit Dey, Vice-Assessment Year: 2018-19 Bain & Company, Inc. Vs. Deputy/Acit, International Tax, 131, Dartmouth Street, Gurgaon, Dartmouth Street Boston, Haryana Massachusetts, Usa, Foreign United States, C/O Bain & Company India Pvt. Ltd., 20Th Floor, Building No.10, Tower C, Dlf Cyber City, Phase-Ii, Gurgaon, India, 122 002 Pan :Aaecb9564H (Applicant) (Respondent)

Section 143(3)Section 144C(13)Section 9(1)(vii)

behalf of the clients. There is no technical skill or knowhow employed in industries research services. He, thus, submitted, the conditions of section 12(4)(b) of the Tax Treaty are not satisfied. More so, when the assessee is providing such services under cost reimbursement agreement since 2010. He submitted

Planetcast International Pte.Ltd, Singapure vs. ACIT, Circle1(1)(1) International Taxation, Delhi

In the result, appeal is partly allowed

ITA 1832/DEL/2022[2019-20]Status: DisposedITAT Delhi14 Jul 2023AY 2019-20

Bench: Shri Saktijit Dey, Vice- & Shri Dr. B.R.R. Kumar

For Appellant: Sh. Ajay Vohra, Sr. Advocate &For Respondent: Sh. Vizaya Vasanta, CIT-DR
Section 143(3)Section 144C(13)Section 9(1)(vi)

examination is, while rendering services, whether the assessee has made available any technical knowledge, experience, skill, know- how or process in terms of section 12(4)(b). In our view, the material on record would not persuade one to conclude so. The true meaning of the aforesaid provision

Cameron (Singapore) Pte Ltd, Coimbatore vs. DCIT, International Taxation, Circle-1(2)(1), New Delhi

In the result, all the appeals are partly allowed

ITA 7960/DEL/2018[2015-16]Status: DisposedITAT Delhi24 Mar 2023AY 2015-16

Bench: Shri G.S. Pannu, Hon’Ble & Shri Saktijit Deyassessment Year: 2013-14 M/S. Cameron (Singapore) Vs. Deputy Commissioner Of Pte. Ltd., Income Tax, C/O- Schlumberger Asia International Taxation, Services Limited, Khasra Room No. 313, Ncr Building, No.2481/838, Village Bhagwan Das Road, Murtala Gala, Nh-15, Jaipur Ahmedabad Road, Barmer, Rajasthan -344001 Pan :Aadcc5259P (Appellant) (Respondent)

Section 44B

services were rendered from head office in Singapore without the involvement of the project office and further the make available condition under section 12(4)(b) of India – Singapore DTAA is not satisfied, however, before us, learned counsel appearing for the assessee has made an alternative claim by pleading that ... skill etc. enabling the recipient of service to apply them independently. That being the case, in our considered opinion, the conditions of section 12(4)(b) are not satisfied. Therefore, we hold that the receipts are not in the nature of FTS. This ground is allowed. 6. In view