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“make available clause”

International TaxDTAA FTS ArticleDTAA FTS Article214 judgments

GE ENGINE SERVICES LLC,UNITED STATES OF AMERICA vs. ASSISTANT COMMISSIONER OF INCOME TAX, NEW DELHI

In the result, the appeal of the assessee is partly allowed

ITA 3700/DEL/2023[AY 2021-22]Status: DisposedITAT Delhi11 Mar 2026
Section 143(2)Section 143(3)Section 144CSection 9(1)

India-Canada DTAA\nand the India-Singapore DTAA. We find that both the India Canada DTAA\nand the India -Singapore DTAA have the “make available” clause to be\ncomplied with for the receipts being treated as FTS. Article 12(4)(b) of\nIndia-Canada DTTA provides as follows:\nArticle

IYOGI TECHNICAL SERVICES PRIVATE LIMITED ,DELHI vs. DCIT, DELHI

In the result, the Revenue’s appeal is partly allowed as indicated above

ITA 323/DEL/2022[2012-13]Status: DisposedITAT Delhi05 Jan 2026AY 2012-13

Bench: SHRIS.RIFAUR RAHMAN (Accountant Member), SHRI SUDHIR PAREEK (Judicial Member)

For Appellant: Shri Gagan Kumar, AdvocateFor Respondent: Shri Dharm Veer Singh, CIT DR
Section 143(2)Section 194(2)Section 195Section 9(1)(vii)

India-US DTAA and he submitted that by reading of the master service agreement, it clearly indicates that the condition of make available clause also satisfied. Therefore, he heavily relied on the findings of the Assessing Officer. 16. On the other hand, ld. AR of the assessee brought

ADDL. CIT, SPECIAL RANGE- 4, NEW DELHI vs. IYOGI TECHNICAL SERVICES PVT. LTD., NEW DELHI

In the result, the Revenue’s appeal is partly allowed as indicated above

ITA 2064/DEL/2018[2013-14]Status: DisposedITAT Delhi05 Jan 2026AY 2013-14

Bench: SHRIS.RIFAUR RAHMAN (Accountant Member), SHRI SUDHIR PAREEK (Judicial Member)

For Appellant: Shri Gagan Kumar, AdvocateFor Respondent: Shri Dharm Veer Singh, CIT DR
Section 143(2)Section 194(2)Section 195Section 9(1)(vii)

India-US DTAA and he submitted that by reading of the master service agreement, it clearly indicates that the condition of make available clause also satisfied. Therefore, he heavily relied on the findings of the Assessing Officer. 16. On the other hand, ld. AR of the assessee brought

BECHTEL LTD,LONDON vs. ACIT, CIRCLE 1(1)(2), INTERNATIONAL TAXATION, NEW DELHI

In the result, appeal of the assessee is allowed

ITA 756/DEL/2023[2020-21]Status: DisposedITAT Delhi31 Dec 2025AY 2020-21
Section 143(2)Section 143(3)Section 144C(13)Section 44DSection 9(1)(vii)

went through in great detail on how the engineering fees of Rs. 51,310,473/- satisfied the make available clause and were taxed the same as FIS under the act and DTAA. In the DRP order, the directions are not ambiguous. In Pam 4.2 and 4.3, DRP concluded that ... explanation of which all services make available technical plans, skills, experience. etc. In this case engineering services are clearly classified as satisfying the make available clause. The extracts of the technical explanation are provided below: As described in the memorandum of understanding, typical categories of services that generally involve either

BECHTEL LIMITED,LONDON vs. ACIT, CIRCLE INT. TAX 1(1)(2), NEW DELHI

In the result, appeal of the assessee is allowed

ITA 1816/DEL/2022[2018-19]Status: DisposedITAT Delhi31 Dec 2025AY 2018-19
Section 143(2)Section 143(3)Section 144C(13)Section 44DSection 9(1)(vii)

went through in great detail on how the engineering fees of Rs. 51,310,473/- satisfied the make available clause and were taxed the same as FIS under the act and DTAA. In the DRP order, the directions are not ambiguous. In Pam 4.2 and 4.3, DRP concluded that ... explanation of which all services make available technical plans, skills, experience. etc. In this case engineering services are clearly classified as satisfying the make available clause. The extracts of the technical explanation are provided below: As described in the memorandum of understanding, typical categories of services that generally involve either

ACRONIS ASIA PTE LTD ,MUMBAI vs. DEPUTY COMMISSIONER OF INCOME TAX (INTERNATIONAL TAXATION )RANGE-1(1)(1), MUMBAI

In the result, the appeal filed by the assessee is\nallowed in the aforesaid terms

ITA 2035/MUM/2025[2022-23]Status: DisposedITAT Mumbai30 Dec 2025AY 2022-23
Section 10(50)Section 144C(13)

under the Act and\nsecondly, both AO and DRP have heard that in law and on\nfacts in not granting the benefit of make available clause\nunder Article 12 of India Singapore DTAA and lastly, the AO\nand ld. DRP have erred in not appreciating that receipts are\nexempt u/s.10 ... nconcluded that the receipts constituted fees for technical\nservices taxable in India, as the India-Switzerland DTAA does\nnot contain a “make available" clause. The DRP also rejected\nthe assessee's claim for exemption under section 10(50) on\nthe ground that the nature of income was FTS and that

VERITAS STORAGE SINGAPORE PTE LIMITED,SINGAPORE vs. DEPUTY COMMISSIONER OF INCOME TAX CIRCLE INT TAX 3(1)(1) DEL, NEW DELHI

In the result, the appeal of the assessee in ITA No

ITA 2026/DEL/2025[2022-23]Status: DisposedITAT Delhi30 Dec 2025AY 2022-23

Bench: Shri Vikas Awasthy & Shri Krinwant Sahay[Assessment Year: 2022-23] Veritas Storage (Singapore) Ptd. Vs. Deputy Commissioner Of Income Ltd. 9 Tamasek Boulevard, Tax, Circle-3(1)(1), Intl. Taxation, 39-01 Suntec Tower Two, Civic Centre, Minto Road, Singapore-038989 New Delhi-110002 Pan :Aafcv2394A (Assessee) (Revenue) Assessee By Shri Tarun Gulati, Sr. Adv. & Shri Nikhil Gupta, Adv. & Shri Prince Nagpal, Adv. Revenue By Srhi M.S. Nethrapal, Cit-Dr Date Of Hearing 30.09.2025 Date Of Pronouncement .12.2025 Order Per Krinwant Sahay, Am:

Section 144C(11)

Circle- 3(1)(1), International Taxation, New Delhi, ITA 2006/DEL/2022. It is also submitted that the said transactions do not satisfy the 'make available clause as per Article 12(4)(b) of the India -Singapore DTAA. 7. Per contra, the Id. DR did not raise any serious objection ... taxable as FTS. We also agree with the submission of the assessee that the said transactions do not satisfy the 'make available' clause as per Article 12(4)(b) of the India- Singapore DTAA. Burden is on the Revenue to demonstrate that make available condition is satisfied whereas neither

ADP PRIVATE LIMITED,HYDERABAD, TELANGANA vs. DCIT., CIRCLE 1(1), HYDERABAD, TELANGANA

In the result, the appeal filed by the assessee is allowed in terms of our observations given hereinabove

ITA 332/HYD/2025[2021-22]Status: DisposedITAT Hyderabad10 Dec 2025AY 2021-22

Bench: SHRI VIJAY PAL RAO, HON’BLE (Vice President), SHRI MANJUNATHA G, HON’BLE (Accountant Member)

Section 143(3)Section 144BSection 144C(13)Section 144C(5)Section 153Section 195(2)Section 40

expenses. (c) Not appreciating that the payments made towards business support services cannot constitute Fee for Technical services in the absence of satisfying make available clause of the India-Australia Double Taxation Avoidance Agreement ('DTAA'). (d) Not appreciating that the receipts received for providing business support services would constitute business

OUTSYSTEMS SINGAPORE PTE. LTD.,SINGAPORE vs. DCIT CIRCLE 2(2)(2) (INTERNATIONAL TAXATION), NEW DELHI

In the result, appeal of the assessee is allowed

ITA 1601/DEL/2025[2022-23]Status: DisposedITAT Delhi10 Dec 2025AY 2022-23

Bench: Shri Vikas Awasthy & Shri M. Balaganeshआअसं.1601/धिल्ली/2025(नि.व. 2022-23) Outsytems Singapore Pte. Ltd., 41-01, 8 Temasek Boulevard, Suntec Tower Three, ...... अपीलार्थी/Appellant Singapore 389980 Pan Aadco-0528-P बिाम Vs. The Deputy Commissioner Of Income Tax, Circle International Tax 2(2)(2), Civic Centre, ..... प्रनिवादी/Respondent Minto Road, New Delhi 110002 अपीलार्थी द्वारा/ Appellant By : Shri Ajit Jain & Ms. Shivangi Chitlangia Chartered Accountants प्रधिवािीद्वारा/Respondent By : Ms. Ekta Jain, Cit(Dr) सुिवाई की निथर्थ/ Date Of Hearing : 03/12/2025 घोषणा की निथर्थ/ Date Of Pronouncement : 10/12/2025 आदेश/Order Per Vikas Awasthy, Jm: This Appeal By The Assessee Is Directed Against The Assessment Order Passed U/S. 143(3) R.W.S. 144C(13) Of The Income Tax Act,1961 (Hereinafter Referred To As ‘The Act’) Dated 10.01.2025, For Assessment Year 2022-23. 2. The Assessee In Appeal Has Raised As Many As 13 Grounds. The Ld. Counsel For The Assessee At The Outset Submitted That He Is Not Pressing Ground No. 4 Of Appeal Assailing Validity Of The Assessment Order Without Din. In Light Of The 2 Statement Made By Ld. Counsel For The Assessee, Ground No. 4 Of Appeal Is Dismissed As Not Pressed.

For Appellant: Shri Ajit Jain & Ms. Shivangi ChitlangiaFor Respondent: Ms. Ekta Jain, CIT(DR)
Section 14Section 143(3)

assessee merely provides standard software to all its customers for developing computer applications using such software. Further India-Singapore DTAA also contains make available clause, 4 therefore, the scope of FTS as per the said DTAA is very narrow. Hence, fees for licensing of software cannot be treated

BOMBARDIER INC.,QUEBEC, CANADA vs. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1(1)(2), DELHI, DELHI

In the result, the appeal of the Assessee are allowed

ITA 1022/DEL/2025[2018-19]Status: DisposedITAT Delhi10 Dec 2025AY 2018-19

Bench: Shri M. Balaganesh & Shri Vimal Kumarbombardier Inc, Vs. Acit, 400, Dorval, Cote-Vertu, Circle-1(1)(2), Road West, Quebee Delhi Canada-H4S1Y9 (Appellant) (Respondent) Pan: Aaccb7177J Assessee By : Shri Sriram Seshadri, Cas Shri Varun Jain, Ca Shri Mohit Agarwal, Ca Ms. Amulya K. Ca Revenue By: Shri M. S. Nethrapal, Cit Dr Date Of Hearing 15/09/2025 Date Of Pronouncement 10/12/2025

For Appellant: Shri Sriram Seshadri, CAsFor Respondent: Shri M. S. Nethrapal, CIT DR
Section 144C(5)Section 147Section 9(1)(vii)

under the Domestic Law and also under Article 12(4) of India Canada DTAA on the ground that it satisfies the „make available clause‟ provided in Article 12(4) of the treaty. The Assessee objected to the show cause notice issued by the Learned AO by stating that the receipts ... under the Article 12(4) of the India- Bombardier Inc Canada Treaty, giving a finding that the services rendered duly satisfy the make-available clause provided therein. Pursuant to the directions of the Learned DRP, the Learned AO passed the final assessment order making the same addition

MYNTRA INC.,UNITED STATES OF AMERICA vs. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE 2(2)(1), INTERNATIONAL TAXATION, NEW DELHI

In the result, grounds of appeal no

ITA 3770/DEL/2023[2021-22]Status: DisposedITAT Delhi10 Dec 2025AY 2021-22

Bench: Shri Vikas Awasthy& Shri Naveen Chandraआअसं.3770/धिल्ली/2023(नि.व. 2021-22) Myntra Inc. 8201, 164Th Ave Ne, Suited 200, Redmond, Wa 98052, ...... अपीलार्थी/Appellant United States Of America, 98052 Pan Aalcm-3409-K बिाम Vs. Assistant Commissioner Of Income Tax, Circle International Tax 2(2)(1), Civic Centre, .....प्रनिवादी/Respondent Minto Road, New Delhi 110002 अपीलार्थी द्वारा/ Appellant By : Shri Sachit Jolly, Sr. Advocate With Ms. Rashi Khanna, Advocate प्रधिवािीद्वारा/Respondent By : Ms. Anjula Jain, Cit (Dr) & Shri Vikram Singh Sharma, Sr. Dr सुिवाई की निथर्थ/ Date Of Hearing : 12/09/2025 घोषणा की निथर्थ/ Date Of Pronouncement : 10/12/2025 आदेश/Order Per Vikas Awasthy, Jm: This Appeal By The Assessee Is Directed Against The Assessment Order Passed U/S. 143(3) R.W.S. 144C(13) Of The Income Tax Act,1961 (Hereinafter Referred To As ‘The Act’) Dated 16.10.2023, For Assessment Year 2021-22. 2. Shri Sachit Jolly, Sr. Advocate Appearing On Behalf Of The Assessee At The Outset Submitted That On Instructions From The Assessee/Appellant He Is Not 2 Pressing Ground No. 2 Of Appeal, Assailing Validity Of The Dispute Resolution Panel (Drp) Directions Sans Din. In Light Of The Statement Made By Ld. Counsel For The Assessee At Bar, Ground Of Appeal No. 2 Is Dismissed As Not Pressed.

For Appellant: Shri Sachit Jolly, Sr. Advocate with Ms. Rashi Khanna, AdvocateFor Respondent: Ms. Anjula Jain, CIT (DR) &
Section 143(3)Section 9(1)(vii)

collaborate with academic institution in US as per the requirement of Indian entity, therefore, the services provided by the assesses also satisfies make available clause. The manpower support services provided by the assessee to the Flipkart as detailed above nowhere reflects transfer of any knowhow, technical skill, technical knowledge

NUNHEMS NETHERLANDS B.V.,NAPOLEONSWEG, NETHERLANDS vs. ASSISTANT COMMISSIONER OF INCOME TAX,, INTERNATIONAL TAXATION, GURGAON

In the result, appeal of the assessee in ITA No

ITA 3382/DEL/2023[2021-22]Status: DisposedITAT Delhi08 Dec 2025AY 2021-22

Bench: Shri Vikas Awasthy & Shri Naveen Chandra

For Appellant: Shri Nageshwar Rao, AdvFor Respondent: Ms. Anjula Jain, CIT-DR
Section 143(3)Section 144C(13)Section 270Section 9(1)(vi)

erred on facts and in law in not appreciating that IT support services provided to by the Assessee does not satisfy the "make available" clause under the DTAA and hence it is not liable to be taxed as Fee for Technical Services. Page 2 of 33 Nunhems Netherlands ... members of the Dispute Resolution Panel concurred with the Assessee's contention that provision of testing services does not fall under the 'make available' clause and, therefore, is not taxable as fees for technical services. The ld AR concluded that the testing services are "services" rendered by the Page

IQVIA AG,SWITZERLAND vs. THE DEPUTY COMMISSIONER OF INCOME TAX (INTERNALTIONAL TAXATION) - 2(2)(2), MUMBAI

In the result, the appeal filed by the assessee is allowed in above terms

ITA 4549/MUM/2023[2021-22]Status: DisposedITAT Mumbai02 Dec 2025AY 2021-22

Bench: Ms. Padmavathy S & Shri Raj Kumar Chauhan

Section 142(1)Section 143(2)Section 144C(5)Section 90(2)

Royalty. The AO found the submission of the assessee not acceptable on the ground that the Indo-Swiss DTAA does not contain a make available clause. Ld. AO relied on the judgment of Hon'ble Supreme Court of India in the case of Ishikawajima-Harima Heavy Industries ... consultancy services, including the provision of services by technical or other personnel. It was therefore noticed that the DTAA does not contain a make available clause and therefore, the impugned services would squarely fall under the ambit of FTS as per the provisions of clause 9(1)(vii)/ explanation

IQVIA AG,SWITZERLAND vs. THE INCOME TAX OFFICER (INTERNATIONAL TAXATION) - 2(2)(1), MUMBAI

In the result, the appeal filed by the assessee is allowed in above terms

ITA 3359/MUM/2023[2020-21]Status: DisposedITAT Mumbai02 Dec 2025AY 2020-21

Bench: Ms. Padmavathy S & Shri Raj Kumar Chauhan

Section 142(1)Section 143(2)Section 144C(5)Section 90(2)

Royalty. The AO found the submission of the assessee not acceptable on the ground that the Indo-Swiss DTAA does not contain a make available clause. Ld. AO relied on the judgment of Hon'ble Supreme Court of India in the case of Ishikawajima-Harima Heavy Industries ... consultancy services, including the provision of services by technical or other personnel. It was therefore noticed that the DTAA does not contain a make available clause and therefore, the impugned services would squarely fall under the ambit of FTS as per the provisions of clause 9(1)(vii)/ explanation

SWISS RE ASIA PTE LTD,SINGAPORE vs. DEPUTY COMMISSIONER OF INCOME TAX, (INTERNATIONAL TAXATION) CIRCLE - 4(2)(2), MUMBAI, MUMBAI

In the result, we hold that the assessee does not have any permanent establishment in India, whether as fixed place

ITA 4092/MUM/2023[2021-22]Status: DisposedITAT Mumbai20 Nov 2025AY 2021-22

Bench: SHRI AMIT SHUKLA (Judicial Member), SHRI GIRISH AGRAWAL (Accountant Member)

Section 144CSection 9(1)(i)

learned Authorised Representative placed detailed reliance on the earlier orders in the assessee’s own case and on the jurisprudence surrounding the make available clause. It was submitted that the co ordinate bench has already held, after examining the agreements and the nature of services, that the support services rendered ... enduring and continuous nature and, therefore, fall within the ambit of FTS under Article 12 even on a proper understanding of the make available clause. 21. We have carefully considered the rival submissions and perused the orders of the authorities below, the material placed on record and the case

SWISS RE ASIA PTE LTD,SINGAPORE vs. DEPUTY COMMISSIONER OF INCOME TAX, (INTERNATIONAL TAXATION) CIRCLE - 4(2)(2), MUMBAI, MUMBAI

In the result, both appeals of the assessee are\nallowed in the above terms

ITA 3178/MUM/2023[2020-21]Status: DisposedITAT Mumbai20 Nov 2025AY 2020-21
Section 144CSection 9(1)(i)

learned Authorised\nRepresentative placed detailed reliance on the earlier orders\nin the assessee's own case and on the jurisprudence\nsurrounding the make available clause. It was submitted that\nthe co ordinate bench has already held, after examining the\nagreements and the nature of services, that the support\nservices rendered

UK GRID SOLUTIONS LIMITED,STAFFORD, UNITED KINGDOM vs. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE INT TAX 3(1)(1)DEL, DELHI

In the result, appeal of the assessee is allowed in terms aforesaid

ITA 2042/DEL/2025[2022-23]Status: DisposedITAT Delhi10 Nov 2025AY 2022-23

Bench: Shri Vikas Awasthy & Shri Brajesh Kumar Singh[Assessment Year: 2022-23] Uk Grid Solutions Limited, The Deputy Commissioner Of Income St Leonards Building, Harry Tax, Circle International Taxation Kerr Dive, Stafford St16 1Wt, Vs -3(1)(1), Civic Centre, Minto Road United Kingdom-99999 New Delhi-110002 Pan-Aaica6271A Assessee/Appellant Revenue/Respondent

Section 143(3)Section 44BSection 9(1)(vii)

balance services valued for Rs. 8,12,37,034/- were not offered to tax as the corresponding services do not fulfil the “make available” clause of paragraph 4(c) of Article 13 of the DTAA. Relying various judgments it was stressed that ALSTOM-I is not enabled to employ these ... services on its own so the ‘make available’ clause is not applicable. The service provisions were primarily managerial in nature and do not involve any technical knowledge etc. to fulfil the make available test. In context to the principle that the Global operation fee received from GETDIL is not taxable

GSMA LTD,USA vs. ACIT CIRCLE INTL TAXATION 1(3)(1), NEW DELHI

In the result, appeal of the assessee is allowed

ITA 2446/DEL/2024[2017-18]Status: DisposedITAT Delhi04 Nov 2025AY 2017-18

Bench: Shri Vikas Awasthy& Shri Brajesh Kumar Singhआअसं.2446/िद"ी/2024(िन.व. 2017-18) Gsma Ltd., 1000 Abernathy Road, Suite 450, Atalanta, Untied State Of America ...... अपीलाथ"/Appellant Pan: Aaecg-1610-K बनाम Vs. Assistant Commissioner Of Income-Tax, International Taxation 1(3)(1), Civic Centre, ....."ितवादी/Respondent Minto Road, New Delhi 110002 अपीलाथ" "ारा/ Appellant By: Shri P.P Singh, Advocate "ितवादी"ारा/Respondent By: Shri M.S Nethrapal, Cit-Dr सुनवाई क" ितिथ/ Date Of Hearing : 06/08/2025 घोषणा क" ितिथ/ Date Of Pronouncement : 04/11/2025 आदेश/Order Per Vikas Awasthy, Jm: This Appeal By The Assessee Is Directed Against The Assessment Order Dated 06.04.2021 Passed U/S. 143(3) R.W.S 144C(13) Of The Income Tax Act,1961(Hereinafter Referred To As ‘The Act’), For Assessment Year 2017-18. 2. The Registry Has Issued Defect Memo Stating That The Appeal Is Time Barred By 1076 Days. The Assessee Has Filed An Application Supported By An Affidavit Citing Reasons For Delay In Filing Of Appeal.

For Appellant: Shri P.P Singh, AdvocateFor Respondent: Shri M.S Nethrapal, CIT-DR
Section 143(3)Section 9(1)(vii)

incidental benefit to the assessee which has been considered to be of enduring advantage. In our understanding, in order to invoke make available clauses, technical knowledge and skill must remain with the person receiving the services even after the particular contract comes to an end and the technical knowledge

B S R & ASSOCIATES LLP,MUMBAI vs. PRINCIPAL COMMISSIONER OF INCOME TAX-8 , MUMBAI

In the result, appeal of the assessee is allowed

ITA 2397/MUM/2025[2018-19]Status: DisposedITAT Mumbai31 Oct 2025AY 2018-19
For Appellant: Shri S. K. Aggarwal, Ajit Kumar JainFor Respondent: Shri Satya Pal Kumar, CIT DR
Section 147Section 148Section 263Section 9(1)(vii)

without tax\nwithholding. The JAO was of the view that these services were in the\nnature of \"fees for technical services\" and the make available clause was\nalso satisfied. Therefore, the said payments were liable to tax withholding\nwhich the Appellant had not done.\nc. The Appellant made detailed submissions

M/S ENEA SOFTWARE INC.,INDIA vs. DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE INT. TAX 2(2)(2), NEW DELHI, NEW DELHI

In the result, the appeal of the assessee is allowed

ITA 986/DEL/2025[2022-23]Status: DisposedITAT Delhi31 Oct 2025AY 2022-23

Bench: Shri Vikas Awasthy & Shri Brajesh Kumar Singh[Assessment Year: 2022-23] M/S Enea Software Inc. Deputy Commissioner Of (Formerly Known As Openwave Income Tax, Circle Int. Tax Inc.), 1St Floor, Vs 2(2)(2), Civic Centre, Mobility Quattro Iconic Plot No. 273, Minto Road, Udyog Vihar, Phase 2, New Delhi. Gurugram, Haryana-122015 Pan- Aabco7261M Assessee Revenue

Section 142(1)Section 143(2)Section 144C

R.JIL and included a training component as well and consequently, the services fell under FTS clause as per India-USA DTAA and the make available clause was also satisfied. 2.4. In view of the above facts of case, the AO noted that the assessee company had been provided benefit

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