“make available clause”

International TaxDTAA FTS ArticleDTAA FTS Article214 judgments

The decision most relied on for make available clause is Ishikawajima Harima Heavy Industries Ltd. v. DIT (288 ITR 408), cited in 394 judgments on BharatTax.

Leading authorities on make available clause

Ishikawajima Harima Heavy Industries Ltd. v. DIT

288 ITR 408 · 2007 · Supreme Court

394

citing judgments

Income from offshore supply of goods and services is not taxable in India if the entire transaction, including transfer of ownership and payments, occurs outside India.

CIT v. De Beers India Minerals (P.) Ltd.

346 ITR 467 · 2012 · High Court

371

citing judgments

For fees for technical or consultancy services to 'make available' technical knowledge or know-how under a DTAA, the service must transmit such knowledge, allowing the recipient to derive an enduring benefit and utilize it independently in the future.

DIT v. Nokia Networks OY

358 ITR 259 · 2013 · High Court

276

citing judgments

Payments for the supply of software along with telecom equipment are not in the nature of royalty if they are for the use of a copyrighted article, not the copyright itself. Such payments are not taxable in India in the absence of a Permanent Establishment (PE).

DIT v. Ericsson A.B

343 ITR 470 · 2012 · High Court

256

citing judgments

Payments for the use of copyrighted software or reimbursement of data processing costs do not constitute 'royalty' under Section 9(1)(vi) of the Income-tax Act or Article 12(3) of a DTAA where there is no transfer of copyright or rendering of services that "make available" technical knowledge. This position was later upheld by the Supreme Court.

DIT v. Guy Carpenter & Co Ltd.

346 ITR 504 · 2012 · High Court

171

citing judgments

For fees for technical services to be taxable under a tax treaty's 'make available' clause, a transfer of technology enabling the recipient to independently perform the service in the future is necessary, beyond mere service rendition. The case also clarifies that re-insurance services do not constitute 'imparting' of information taxable as royalty.

Raymond Ltd. v. Dy. CIT

86 ITD 791 · 2003 · ITAT

154

citing judgments

For services to qualify as 'Fees for Technical Services' or 'Fees for Included Services' under Double Taxation Avoidance Agreements (DTAAs), they must 'make available' technical knowledge, experience, skill, or processes to the recipient, enabling them to apply such expertise independently.

GVK Industries Ltd. v. Income Tax Officer

371 ITR 453 · 2015 · Supreme Court

119

citing judgments

Advice given by a financial consultancy firm on the modalities of procuring loans is considered a 'technical and consultancy service' for the purpose of taxation of fees for technical services.

EY Global Services Ltd. v. ACIT

441 ITR 54 · 2022 · High Court

citing judgments

Payments for software licenses that do not involve a transfer of copyright or proprietary interest, but merely authorize end-user access and use, do not constitute 'royalty' income. Additionally, IT support services are not taxable as Fees for Technical Services (FTS) or royalty.

Judgments citing make available clause

M/S. Shell Interational Petroleum Co. Ltd., Mumbai vs. Dy CIT (International Taxation)-4(2)(1), Mumbai

ITA 1244/MUM/2021[2017-18]Status: DisposedITAT Mumbai21 Apr 2025AY 2017-18

Bench: Ms Padmavathy S, Am & Shri Raj Kumar Chauhan, Jm

Section 143(3)Section 234ASection 271(1)(c)

incidental benefit to the assessee which has been considered to be of enduring advantage. 21. 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

M/S Shell International Petroleum Company Ltd., Mumbai vs. Dy CIT (It)- 4 (2)(1), Mumbai

ITA 7499/MUM/2019[2016-17]Status: DisposedITAT Mumbai21 Apr 2025AY 2016-17

Bench: Ms Padmavathy S, Am & Shri Raj Kumar Chauhan, Jm

For Appellant: Respondent)For Respondent: Shri Vivek Perampurna, CIT-DR

Section 143(3)Section 271(1)(c)

Shell International B.V., Netherlands vs. The Asstt.CIT., Circle(Intnl.Taxn.)-1, Ahmedabad

In the result, we hold that the above services did not qualify as FTS under the

ITA 1027/AHD/2023[2021-22]Status: DisposedITAT Ahmedabad15 Apr 2025AY 2021-22

Section 143Section 153

ITAT for A.Y. 2009-10 to 2018-19 and the assessee wishes to rely on the observations made by the ITAT qua the “make available" clause in the aforesaid order. Thus the Ld. Counsel filed a Comparative Chart for each grounds of appeal which reads as follows: Shell International ... that “make available” technology to the recipient of services. Since in the instant facts, the Department has not been able to establish that "make available" clause has been satisfied in the facts of the instant cases, these services have been held not to qualify as FTS under the Income

Income Tax Officer, International Taxation, Ward-1(2), Benglauru, Bengaluru vs. Unitedlex India Pvt. Ltd. (Earlier Known As I-Runway India Private Limited), Bengaluru

In the result, appeal of the revenue is dismissed

ITA 1243/BANG/2024[2015-16]Status: DisposedITAT Bangalore07 Apr 2025AY 2015-16

Bench: Shri Laxmi Prasad Sahu & Shri Keshav Dubeyassessment Year :2015-16

For Appellant: Smt. Manasa Ananthan, A.RFor Respondent: Ms. Neha Sahay, D.R

Section 143(3)Section 195Section 201Section 201(1)Section 250Section 40Section 9(1)(vii)

taxable in India as it is deemed to have accrued and arisen to the non-resident in India. On the application of make available clause in Article 12(4)(b) of the Indo us treaty, the CIT(A) held that Mr.Neeraj Gupta had experience in patent litigation management

Shell International Petroeum Company Limited, Mumbai vs. Asst. Commissioner of Income Tax(International Taxation)-4(2)(1), Mumbai

ITA 5509/MUM/2017[2014-15]Status: DisposedITAT Mumbai27 Feb 2025AY 2014-15

Bench: Ms Padmavathy S, Am & Shri Raj Kumar Chauhan, Jm

Section 143(3)Section 234ASection 271(1)(c)

Shell International Petroleum Company Ltd, Mumbai vs. DCIT (It) 4(2)(1), Mumbai

ITA 3053/MUM/2017[2012-13]Status: DisposedITAT Mumbai27 Feb 2025AY 2012-13

Bench: Ms Padmavathy S, Am & Shri Raj Kumar Chauhan, Jm

Section 143(3)Section 234ASection 271(1)(c)

Shell International Petroleum Company Ltd, Mumbai vs. DCIT (It) 4(2)(1), Mumbai

ITA 3049/MUM/2017[2013-14]Status: DisposedITAT Mumbai27 Feb 2025AY 2013-14

Bench: Ms Padmavathy S, Am & Shri Raj Kumar Chauhan, Jm

Section 143(3)Section 234ASection 271(1)(c)

Anand Singh, Village Shahpur Turk vs. Income Tax Officer 69(5), Delhi

In the result, the appeal of the Assessee are allowed

ITA 1022/DEL/2024[2012-13]Status: DisposedITAT Delhi20 Feb 2025AY 2012-13

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

DCIT, New Delhi vs. M/S. Rhc Holding Pvt. Ltd., New Delhi

In the result, appeal of the assessee is allowed

ITA 2446/DEL/2014[2009-10]Status: DisposedITAT Delhi14 Feb 2025AY 2009-10

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

Marwari Dharamshala (Jogiwara) Prabandhak Commitee, Delhi vs. CIT (Exemption), Delhi

In the result, appeal of assessee in ITA No

ITA 1913/DEL/2024[2024-25]Status: HeardITAT Delhi21 Jan 2025AY 2024-25

Bench: Shri Vijay Pal Rao & Shri Naveen Chandra

For Appellant: Shri Tarun Gulati, Sr. AdvFor Respondent: Shri Vedanshu Tripathi, CIT- DR

Section 143(3)

C.I.T. 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. 9. Per contra, the ld. DR did not raise any serious objection. The ld DR relied upon ... DTAA. The ld DRP held that taxable under Article 13 India-UK DTAA under the head 'FTS'. The ld DRP held that the make available clause under Article 13 are also stand satisfied. The main argument taken before us is that the other related services provided are in connection with

Shell International Petroeum Company Limited, Mumbai vs. Asst. Commissioner of Income Tax(International Taxation)-4(2)(1), Mumbai

Appeal of the assessee is allowed

ITA 2059/MUM/2016[2011-12]Status: DisposedITAT Mumbai07 Jan 2025AY 2011-12

Bench: Shri Saktijit Dey & Ms Padmavathy S, Am

For Respondent: Shri Vivek Perampurna, CIT-DR

Section 143(3)Section 2(24)Section 234ASection 234BSection 271(1)(c)

Hakam Fluid Power Pvt. Ltd., New Delhi vs. ITO Ward 11(1), New Delhi

In the result, appeal of the assessee is allowed

ITA 756/DEL/2024[2017-18]Status: DisposedITAT Delhi06 Jan 2025AY 2017-18

Bench: Sh. Satbeer Singh Godara (Judicial Member)

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

Parvinder Kaur Sawhney, Gurgaon vs. Pr, CIT, Delhi -12, New Delhi

In the result, assessee’s appeals in ITA No

ITA 626/DEL/2021[2011-12]Status: DisposedITAT Delhi06 Jan 2025AY 2011-12

Bench: Shri Vikas Awasthy & Shri Naveen Chandra

For Appellant: Shri Rajan Vohra, CAFor Respondent: Shri Nikhil Kumar Govila, CIT-DR

Section 133(6)Section 147Section 153Section 234ASection 234B

626/DEL/2025 Pratt & Whitney Vs. DCIT engines are not to be treated as FTS because the ‘make available’ clause in the India Canada DTAA as well as India Singapore are not satisfied. The ld. counsel for the assessee relied on decisions of the following: i) Goodrich Corporation ITA No. 173/2025 ... DCIT Canada DTAA and the India-Singapore DTAA. We find that both the India- Canada DTAA and the India -Singapore DTAA have the “make available” clause to be complied with for the receipts being treated as FTS. Article 12(4)(b) of India-Canada DTTA provides as follows: Article

Shell Global Solutions International B.V, Mumbai vs. The ACIT, Intl. Taxn.-2, Ahmedabad

In the result, the appeal of the assessee is partly allowed, while the CO filed by the Revenue is dismissed

ITA 1783/AHD/2019[2015-16]Status: DisposedITAT Ahmedabad18 Dec 2024AY 2015-16

Bench: Smt.Annapurna Gupta & Shri T.R. Senthil Kumarwith Co No.20/Ahd/2022 Assessment Year : 2014-15 & 1783/Ahd/2019 Assessment Year : 2015-16 Shell Global Solutions International B.V.,, Acit, International C/O. Bsr Associates & Llp Vs Taxation-1 903, Commerce House V Ahmedabad. Nr.Vodafone House Prahaladnagar Corporation Road, Ahmedabad. Pan : Aaics 3589 H (Applicant) (Responent) : Assessee By Shri S.N. Soparkar, Sr.Advocate & Shri Parin Shah, Ar : Dr. Darsi Suman Ratnam, Cit-Dr Revenue By सुनवाई क" तारीख/Date Of Hearing : 05/09/2024 & 06/12/2024 घोषणा क" तारीख /Date Of Pronouncement: 18/12/2024

Section 143(3)Section 144C

Technical Services" and are hence taxable in India. Before us, the Counsel for the assessee submitted that in view of the "make available clause" under the India- Netherlands Tax Treaty, payments for such services do not quality as FTS since the assessee has not made available any technical knowledge, experience ... services would qualify as fee for technical services under the applicable Tax Treaty which specifically contains ITA No.2390/Ahd/2018 & 1783/Ahd/2019 with CO 25 the "make available" clause. In the instant facts, we observe that nature of services are not which make available the technology to the recipient of services i.e. Shell

Shell Global Solutions International B.V, Mumbai vs. The ACIT, Intl. Taxn.-1, Ahmedabad

In the result, the appeal of the assessee is partly allowed, while the CO filed by the Revenue is dismissed

ITA 2390/AHD/2018[2014-15]Status: DisposedITAT Ahmedabad18 Dec 2024AY 2014-15

Section 143(3)Section 144C

Criteo Singapore Pte. Ltd., Singapore vs. ACIT Ciricle 1(2)(1) International Taxation, New Delhi

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

ITA 2122/DEL/2023[2020-21]Status: DisposedITAT Delhi18 Dec 2024AY 2020-21

Bench: Shri Saktijit Dey & Shri Naveen Chandra

For Appellant: Shri S.K. Aggarwal, CAFor Respondent: Shri Vijay B. Vasanta, CIT- DR

Section 139(1)Section 143(3)Section 244ASection 270ASection 9(1)(vi)Section 9(1)(vii)

Article 12(4) of the India-Singapore DTAA. The ld DR argued that the “make available” clause for the receipts being FTS is satisfied as the assessee supports and guide the Indian entity. The ld DR gave the following reasons: • The personnel of the Assessee have been sub-contracted ... very short duration. We are, therefore, of the considered view that such services, having a recurring nature, does not satisfy the “make available” clause. Mere incidental advantage to the recipient of services is not enough. The view is supported by the decision of Hon’ble Delhi High Court

Western Digital Technologies Inc, Usa vs. Deputy Commissioner of Incomer Tax, International Taxation, Circle-2(1), Bengaluru

In the result, the appeal of the assessee is partly allowed for statistical purposes

ITA 344/BANG/2024[2017-18]Status: DisposedITAT Bangalore10 Dec 2024AY 2017-18

Bench: Shri Waseem Ahmed & Shri Soundararajan K

For Appellant: Shri Ajay Rotti, CAFor Respondent: Shri Sridhar E, CIT (DR)

Section 234ASection 270A

administrative, thereby qualifying as FTS under Section 9(1)(vii) of the Act. The AO also concluded that the arrangement fulfilled the "make available" clause under the Double Taxation Avoidance Agreement (DTAA), as the expertise shared by the seconded employees with SanDisk India was intended to enable the latter ... learned Authorized Representative (AR) argued, among other contentions, that the agreement between the assessee and SanDisk India did not contain a "make available" clause. As a result, the payment received by the assessee could not be subjected to tax in India under the provisions of the DTAA

Lnrs Data Services Limited, United Kingdom vs. Assistant Commissioner of Income Tax, Circle Int. Tax 2(2)(1), Civic Centre

In the result, both appeals of the assessee are allowed

ITA 2618/DEL/2024[2017-18]Status: DisposedITAT Delhi29 Nov 2024AY 2017-18

Bench: Shri Vikas Awasthy & Shri Avdhesh Kumar Mishra

Section 143(3)Section 144Section 144C(13)Section 148Section 234ASection 234BSection 271(1)(C)

order of the DRP, submitted that the services provided by the appellant/assessee involved technologies and fulfilled the condition of make available clause. Therefore, the subscription fees should be taxed in India as the users and payers are based in India. He further put submitted that the appellant/assessee had provided services ... appellant/assessee involved technology. Further, the appellant/assessee also trained the employees of the Indian customers enabling them to Act independently. Thus, the make available clause also got fulfilled as users in India, over the years, would be able to use Data independently without the support of the appellant/assessee. The customer users

Lnrs Data Services Limited, United Kingdom vs. Assistant Commissioner of Income Tax Circle Int. Tax 2(2)(1), Civic Centre

In the result, both appeals of the assessee are allowed

ITA 2617/DEL/2024[2016-17]Status: DisposedITAT Delhi29 Nov 2024AY 2016-17

Bench: Shri Vikas Awasthy & Shri Avdhesh Kumar Mishra

Section 143(3)Section 144Section 144C(13)Section 148Section 234ASection 234BSection 271(1)(C)

Shell International B.V., Mumbai vs. The ACIT, Circle (International Taxation-1), Ahmedabad

In the result, Ground No. 10 of the assessee’s appeal is allowed

ITA 688/AHD/2023[2020-21]Status: DisposedITAT Ahmedabad25 Nov 2024AY 2020-21

Bench: Smt. Annapurna Gupta & Shri Siddhartha Nautiyal

For Appellant: Shri S. N. Soparkar, Sr. Advocate &For Respondent: Dr. Darsi Suman Ratnam, CIT DR

Section 153

ITAT for A.Y. 2009-10 to 2018- 19 and the assessee wishes to rely on the observations made by the ITAT qua the “make available” clause in the aforesaid order. Shell International B.V. vs. ACIT (International Taxation) Asst.Year –2020-21 - 5– 4. Regarding Ground No. 1 the Counsel ... make available” technology to the recipient of services and since in the instant facts, the Department has not been able to establish that “make available” clause has been satisfied in the facts of the instant case, these services have been held not to qualify as FTS under the Income