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“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
72
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 International B.V., Mumbai vs. The ACIT, Intl. Taxn.-2, Ahmedabad

ITA 1657/AHD/2019[2015-16]Status: DisposedITAT Ahmedabad20 Mar 2024AY 2015-16

Bench: Smt. Annapurna Gupta & Shri Siddhartha Nautiyal

agreement in place for the period under consideration, the nature of services is also not clear to decide to what extent protection of “make available” clause is available to the assessee. 30. We have heard the rival contentions and perused the material on record. 31. One of the arguments which ... However, we also observe that in the instant facts, the India- Netherlands Tax Treaty, contains a specific restriction in the form of “make available” clause, which restricts the definition of fee for technical services under the Treaty Law to only those cases where services have been rendered in a manner

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

ITA 2389/AHD/2018[2011-12]Status: DisposedITAT Ahmedabad20 Mar 2024AY 2011-12

Bench: Smt. Annapurna Gupta & Shri Siddhartha Nautiyal

agreement in place for the period under consideration, the nature of services is also not clear to decide to what extent protection of “make available” clause is available to the assessee. 30. We have heard the rival contentions and perused the material on record. 31. One of the arguments which ... However, we also observe that in the instant facts, the India- Netherlands Tax Treaty, contains a specific restriction in the form of “make available” clause, which restricts the definition of fee for technical services under the Treaty Law to only those cases where services have been rendered in a manner

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

ITA 2388/AHD/2018[2010-11]Status: DisposedITAT Ahmedabad20 Mar 2024AY 2010-11

Bench: Smt. Annapurna Gupta & Shri Siddhartha Nautiyal

agreement in place for the period under consideration, the nature of services is also not clear to decide to what extent protection of “make available” clause is available to the assessee. 30. We have heard the rival contentions and perused the material on record. 31. One of the arguments which ... However, we also observe that in the instant facts, the India- Netherlands Tax Treaty, contains a specific restriction in the form of “make available” clause, which restricts the definition of fee for technical services under the Treaty Law to only those cases where services have been rendered in a manner

M/S. Shell International B.V., Mumbai vs. The Dy. CIT, Intl. Taxn.-1, Ahmedabad

ITA 2789/AHD/2017[2014-15]Status: DisposedITAT Ahmedabad20 Mar 2024AY 2014-15

Bench: Smt. Annapurna Gupta & Shri Siddhartha Nautiyal

agreement in place for the period under consideration, the nature of services is also not clear to decide to what extent protection of “make available” clause is available to the assessee. 30. We have heard the rival contentions and perused the material on record. 31. One of the arguments which ... However, we also observe that in the instant facts, the India- Netherlands Tax Treaty, contains a specific restriction in the form of “make available” clause, which restricts the definition of fee for technical services under the Treaty Law to only those cases where services have been rendered in a manner

M/S. Shell International B.V., Mumbai vs. The Dy. CIT, Intl. Taxn.-1, Ahmedabad

ITA 2788/AHD/2017[2009-10]Status: DisposedITAT Ahmedabad20 Mar 2024AY 2009-10

Bench: Smt. Annapurna Gupta & Shri Siddhartha Nautiyal

agreement in place for the period under consideration, the nature of services is also not clear to decide to what extent protection of “make available” clause is available to the assessee. 30. We have heard the rival contentions and perused the material on record. 31. One of the arguments which ... However, we also observe that in the instant facts, the India- Netherlands Tax Treaty, contains a specific restriction in the form of “make available” clause, which restricts the definition of fee for technical services under the Treaty Law to only those cases where services have been rendered in a manner

M/S. Shell International B.V., Mumbai vs. The Dy. CIT, Intl. Taxn.-1, Ahmedabad

ITA 176/AHD/2017[2013-14]Status: DisposedITAT Ahmedabad20 Mar 2024AY 2013-14

Bench: Smt. Annapurna Gupta & Shri Siddhartha Nautiyal

agreement in place for the period under consideration, the nature of services is also not clear to decide to what extent protection of “make available” clause is available to the assessee. 30. We have heard the rival contentions and perused the material on record. 31. One of the arguments which ... However, we also observe that in the instant facts, the India- Netherlands Tax Treaty, contains a specific restriction in the form of “make available” clause, which restricts the definition of fee for technical services under the Treaty Law to only those cases where services have been rendered in a manner

M/S. Shell International B.V., Mumbai vs. The Dy. CIT, Intl. Taxn.-1, Ahmedabad

ITA 175/AHD/2017[2012-13]Status: DisposedITAT Ahmedabad20 Mar 2024AY 2012-13

Bench: Smt. Annapurna Gupta & Shri Siddhartha Nautiyal

agreement in place for the period under consideration, the nature of services is also not clear to decide to what extent protection of “make available” clause is available to the assessee. 30. We have heard the rival contentions and perused the material on record. 31. One of the arguments which ... However, we also observe that in the instant facts, the India- Netherlands Tax Treaty, contains a specific restriction in the form of “make available” clause, which restricts the definition of fee for technical services under the Treaty Law to only those cases where services have been rendered in a manner

Uk Grid Solutions Limited, United Kingdom vs. DCIT Circle International Tax 3(1)(1), New Delhi

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

ITA 885/DEL/2023[2017-18]Status: DisposedITAT Delhi13 Mar 2024AY 2017-18

Bench: Shri C. N. Prasad & Shri M. Balaganesh

For Appellant: Shri Ajay Vohra, Sr. AdvFor Respondent: Shri Vizay B. Vasanta, CIT DR
Section 143(3)Section 144C(13)

India-UK DTAA, without appreciating that the provision of said services by the Appellant did not satisfy the 'make available' clause contained in Article 13(4)(c) of the India-UK DTAA. Re: Levy of interest 18. That the assessing officer erred on facts and in law in levying interest ... 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- 1 is not enabled to employ these

Uk Grid Solutions Limited, United Kingdom vs. DCIT Circle International Tax 3(1)(1), New Delhi

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

ITA 884/DEL/2023[2016-17]Status: DisposedITAT Delhi13 Mar 2024AY 2016-17

Bench: Shri C. N. Prasad & Shri M. Balaganesh

For Appellant: Shri Ajay Vohra, Sr. AdvFor Respondent: Shri Vizay B. Vasanta, CIT DR
Section 143(3)Section 144C(13)

India-UK DTAA, without appreciating that the provision of said services by the Appellant did not satisfy the 'make available' clause contained in Article 13(4)(c) of the India-UK DTAA. Re: Levy of interest 18. That the assessing officer erred on facts and in law in levying interest ... 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- 1 is not enabled to employ these

Uk Grid Solutions Limited, United Kingdom vs. DCIT Circle Intl. Taxation 3(1)(1), New Delhi

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

ITA 2240/DEL/2023[2020-21]Status: DisposedITAT Delhi13 Mar 2024AY 2020-21

Bench: Shri C. N. Prasad & Shri M. Balaganesh

For Appellant: Shri Ajay Vohra, Sr. AdvFor Respondent: Shri Vizay B. Vasanta, CIT DR
Section 143(3)Section 144C(13)

India-UK DTAA, without appreciating that the provision of said services by the Appellant did not satisfy the 'make available' clause contained in Article 13(4)(c) of the India-UK DTAA. Re: Levy of interest 18. That the assessing officer erred on facts and in law in levying interest ... 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- 1 is not enabled to employ these

Uk Grid Solutions Limited, United Kingdom vs. DCIT Circle Intl. Taxation 3(1)(1), New Delhi

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

ITA 2239/DEL/2023[2015-16]Status: DisposedITAT Delhi13 Mar 2024AY 2015-16

Bench: Shri C. N. Prasad & Shri M. Balaganesh

For Appellant: Shri Ajay Vohra, Sr. AdvFor Respondent: Shri Vizay B. Vasanta, CIT DR
Section 143(3)Section 144C(13)

India-UK DTAA, without appreciating that the provision of said services by the Appellant did not satisfy the 'make available' clause contained in Article 13(4)(c) of the India-UK DTAA. Re: Levy of interest 18. That the assessing officer erred on facts and in law in levying interest ... 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- 1 is not enabled to employ these

Spi Global Us Inc, Usa vs. DCIT International Taxation Circle 3(1)(2), New Delhi

In the result, the appeal filed by the assessee is partly

ITA 1912/DEL/2023[2020-2021]Status: DisposedITAT Delhi13 Mar 2024AY 2020-2021

Bench: SHRI SHAMIM YAHYA (Accountant Member), SHRI YOGESH KUMAR U.S. (Judicial Member)

Section 143(3)Section 144Section 144CSection 9

such services. The Memorandum of Understanding (MOU) to India-USA DTAA contains various instances explaining the meaning of the term ‘make available’. The ‘make available’ clause is satisfied when the person acquiring the services is enabled to apply the technology independently in the future without the assistance of the service ... held that sub-contracting charges are not taxable in India as per the India-USA DTAA as the make available clause is not satisfied. However, in the instant case in AY 2019-20 the Ld. DRP held that the sub-contracting charges are taxable as FIS since make available condition

JCIT, Special Range-1, New Delhi vs. Axis Risk Consulting Services Pvt. Ltd., New Delhi

In the result, the appeal of the Revenue is dismissed

ITA 2920/DEL/2018[2012-13]Status: DisposedITAT Delhi14 Feb 2024AY 2012-13

Bench: Shri Kul Bharat & Shri Pradip Kumar Kedia

For Appellant: Shri Vishal Kalra, AdvFor Respondent: Dr. Anupama Singh, Sr.DR
Section 143(3)Section 144C(3)Section 40Section 40a

Delhi High Court in the case of CIT vs. Bio Rad Laboratories (Singapore) Pte. Ltd. (2023) 155 taxmann.com 646 (Del) to contend that make available clauses could be invoked in the present case since any technical knowledge and skill etc will not remain with the assessee receiving the services after ... made to the judgment in the case of DIT vs. Guy Carpenter & Co. Ltd. (2012) 346 ITR 504 (Del) to submit that make available clause must be satisfied. The CIT(A), in the backdrop of arguments raised, found merit in the plea of the assessee and rightly held that staffing

ACIT Circle- 10(1), New Delhi vs. Global Vectra Helicorp Ltd, New Delhi

In the result, all the appeals of Revenue are dismissed

ITA 1487/DEL/2020[2016-17]Status: DisposedITAT Delhi31 Jan 2024AY 2016-17

Bench: Shri Saktijit Dey, Vice- & Dr. B.R.R. Kumarassessment Year: 2015-16

Section 115J

1397/Del/2020 & 1482 to 1487/Del/2020 AYs: 2011-12 to 2016-17 treaties are wider in scope and do not contain make available clause. iii. In the third category UAE can be put as in the treaty with UAE there is no provision concerning FTS. 21. Insofar as the countries falling ... first category, such as, USA, UK, Australia, Canada and Singapore, admittedly, the treaty provisions have make available clause. Therefore, to treat a particular receipt to be in the nature of FTS, it has to be demonstrated that in course of rendition of services, the service provider had made available technical

ACIT Circle-10(1), New Delhi vs. Global Vectra Helicorp Ltd, New Delhi

In the result, all the appeals of Revenue are dismissed

ITA 1486/DEL/2020[2015-16]Status: DisposedITAT Delhi31 Jan 2024AY 2015-16

Bench: Shri Saktijit Dey, Vice- & Dr. B.R.R. Kumarassessment Year: 2015-16

Section 115J

1397/Del/2020 & 1482 to 1487/Del/2020 AYs: 2011-12 to 2016-17 treaties are wider in scope and do not contain make available clause. iii. In the third category UAE can be put as in the treaty with UAE there is no provision concerning FTS. 21. Insofar as the countries falling ... first category, such as, USA, UK, Australia, Canada and Singapore, admittedly, the treaty provisions have make available clause. Therefore, to treat a particular receipt to be in the nature of FTS, it has to be demonstrated that in course of rendition of services, the service provider had made available technical

ACIT Circle-10(1), New Delhi vs. Global Vectra Helicorp Ltd, New Delhi

In the result, all the appeals of Revenue are dismissed

ITA 1485/DEL/2020[2014-15]Status: DisposedITAT Delhi31 Jan 2024AY 2014-15

Bench: Shri Saktijit Dey, Vice- & Dr. B.R.R. Kumarassessment Year: 2015-16

Section 115J

1397/Del/2020 & 1482 to 1487/Del/2020 AYs: 2011-12 to 2016-17 treaties are wider in scope and do not contain make available clause. iii. In the third category UAE can be put as in the treaty with UAE there is no provision concerning FTS. 21. Insofar as the countries falling ... first category, such as, USA, UK, Australia, Canada and Singapore, admittedly, the treaty provisions have make available clause. Therefore, to treat a particular receipt to be in the nature of FTS, it has to be demonstrated that in course of rendition of services, the service provider had made available technical

ACIT Circle- 10(1), New Delhi vs. Global Vectra Helicorp Ltd, New Delhi

In the result, all the appeals of Revenue are dismissed

ITA 1484/DEL/2020[2013-14]Status: DisposedITAT Delhi31 Jan 2024AY 2013-14

Bench: Shri Saktijit Dey, Vice- & Dr. B.R.R. Kumarassessment Year: 2015-16

Section 115J

1397/Del/2020 & 1482 to 1487/Del/2020 AYs: 2011-12 to 2016-17 treaties are wider in scope and do not contain make available clause. iii. In the third category UAE can be put as in the treaty with UAE there is no provision concerning FTS. 21. Insofar as the countries falling ... first category, such as, USA, UK, Australia, Canada and Singapore, admittedly, the treaty provisions have make available clause. Therefore, to treat a particular receipt to be in the nature of FTS, it has to be demonstrated that in course of rendition of services, the service provider had made available technical

ACIT Circle-10(1), New Delhi vs. Global Vectra Helicorp Ltd, New Delhi

In the result, all the appeals of Revenue are dismissed

ITA 1483/DEL/2020[2012-13]Status: DisposedITAT Delhi31 Jan 2024AY 2012-13

Bench: Shri Saktijit Dey, Vice- & Dr. B.R.R. Kumarassessment Year: 2015-16

Section 115J

1397/Del/2020 & 1482 to 1487/Del/2020 AYs: 2011-12 to 2016-17 treaties are wider in scope and do not contain make available clause. iii. In the third category UAE can be put as in the treaty with UAE there is no provision concerning FTS. 21. Insofar as the countries falling ... first category, such as, USA, UK, Australia, Canada and Singapore, admittedly, the treaty provisions have make available clause. Therefore, to treat a particular receipt to be in the nature of FTS, it has to be demonstrated that in course of rendition of services, the service provider had made available technical

ACIT Circle-10(1), New Delhi vs. Global Vectra Helicorp Ltd, New Delhi

In the result, all the appeals of Revenue are dismissed

ITA 1482/DEL/2020[2011-12]Status: DisposedITAT Delhi31 Jan 2024AY 2011-12

Bench: Shri Saktijit Dey, Vice- & Dr. B.R.R. Kumarassessment Year: 2015-16

Section 115J

1397/Del/2020 & 1482 to 1487/Del/2020 AYs: 2011-12 to 2016-17 treaties are wider in scope and do not contain make available clause. iii. In the third category UAE can be put as in the treaty with UAE there is no provision concerning FTS. 21. Insofar as the countries falling ... first category, such as, USA, UK, Australia, Canada and Singapore, admittedly, the treaty provisions have make available clause. Therefore, to treat a particular receipt to be in the nature of FTS, it has to be demonstrated that in course of rendition of services, the service provider had made available technical

Global Vectra Helicorp Ltd., New Delhi vs. DCIT Circle-10(1), New Delhi

In the result, all the appeals of Revenue are dismissed

ITA 1397/DEL/2020[2015-16]Status: DisposedITAT Delhi31 Jan 2024AY 2015-16

Bench: Shri Saktijit Dey, Vice- & Dr. B.R.R. Kumarassessment Year: 2015-16

Section 115J

1397/Del/2020 & 1482 to 1487/Del/2020 AYs: 2011-12 to 2016-17 treaties are wider in scope and do not contain make available clause. iii. In the third category UAE can be put as in the treaty with UAE there is no provision concerning FTS. 21. Insofar as the countries falling ... first category, such as, USA, UK, Australia, Canada and Singapore, admittedly, the treaty provisions have make available clause. Therefore, to treat a particular receipt to be in the nature of FTS, it has to be demonstrated that in course of rendition of services, the service provider had made available technical