“make available condition”

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

In the result, appeal of the assessee is allowed

processes, or consist of the development and transfer of a technical plan or technical design." RE: "Make Available" On facts, the "make available" condition in the above set out definition is not satisfied. Satisfaction of the make available requires that the service provider transmits technology such that the service recipient ... Provider. The mere fact that rendition of a service entails use of technology or technical skill, does not ipso facto imply that the make available condition is satisfied. Reference in this regard is made to Tungsten Automation England Ltd. vs. DCIT, [2025] 176 taxmann.com 497 (Delhi High Court) [Paras

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

In the result, appeal of the assessee is allowed

processes, or consist of the development and transfer of a technical plan or technical design." RE: "Make Available" On facts, the "make available" condition in the above set out definition is not satisfied. Satisfaction of the make available requires that the service provider transmits technology such that the service recipient ... Provider. The mere fact that rendition of a service entails use of technology or technical skill, does not ipso facto imply that the make available condition is satisfied. Reference in this regard is made to Tungsten Automation England Ltd. vs. DCIT, [2025] 176 taxmann.com 497 (Delhi High Court) [Paras

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

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:

agreement, it cannot be said that conditions of Article 13(4)(c) are satisfied. Burden is on the Revenue to demonstrate that make available condition is satisfied. Appeal of the assessee on Ground Nos. 4 and 5 are allowed." 8. On perusal of the draft assessment order and the final ... controvert the findings of the above order of the Tribunal. Further, the Department has not brought any evidence on record to substantiate that 'make available' condition is satisfied in the case of the assessee for this assessment year. Therefore, following the decision of the Co-ordinate Bendh of the Tribunal

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

In the result, appeal of the assessee is allowed

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.

software without any right to sub lease. No specialized knowledge or skill is imparted to the end user i.e. the make available condition set out in India-Singapore DTAA is not satisfied. In the back drop of above undisputed facts, we find that the case of the assessee is squarely

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

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.

fall within the meaning of FTS as defined under Article 12 of India- US DTAA. He further pointed that in India-US DTAA ‘make available’ condition is required to be satisfied which is conspicuously missing in the instant case. Referring to para 6 of the Draft Assessment Order ... providing data, analyses of data is done by Flipkart. The assessee does not share information as to how the data is collected. Thus, ‘make available’ condition is not satisfied. The ld. Counsel further contended that there is no finding by the AO or the DRP that the assessee is transferring

INTEVA PRODUCTS NETHERLANDS B.V.,NETHERLANDS vs. ACIT IT CIRCLE 2(1)(1), DELHI

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

Bench: Shris.Rifaur Rahman & Shri Yogesh Kumar U.S.Inteva Products Netherlands B.V. Vs. Acit, It Circle 2(1)(1), Siriusdreef 17, 2132, Wt, Hoofddorp, Delhi. Netherlands. (Pan :Aadci5208G) (Appellant) (Respondent) Assessee By : Shri Kshitij Bansal, Ca Revenue By : Shri Saroj Kumar Dubey, Cit Dr Date Of Hearing : 28.08.2025 Date Of Order : 19.11.2025 Order Per S. Rifaur Rahman: 1. This Appeal Preferred By The Assessee Is Directed Against The Assessment Order Dated 27.01.2025 Passed By The Acit, Circle Int. Tax 2(1)(1), Delhi Under Section 143(3) R.W.S. 144C(13) Of The Income-Tax Act, 1961 (For Short ‘The Act”) For Assessment Year 2022-23Pursuant To The Directions Of The Dispute Resolution Panel U/S 144C(5) Of The Act Raising Following Grounds Of Appeal :- “Ground 1 On The Facts & Circumstances Of The Case & In Law, The Assistant Commissioner Of Income-Tax, Circle International Tax - 2(1)(1), Delhi ('Ld.

Even, assuming for the sake of argument that payment received for certain kind of services is in the nature of FTS, however, the make available condition needs tobesatisfied. Neither the Assessing Officer nor learned DRP have established on record that by rendering the services, the assessee has made available technical ... enabled the recipient of such services to utilize it independently without the aid and assistance of the assessee. Thus, in our view, the make available condition is not satisfied. Therefore, the payment received cannot be treated as FTS under Article-12(5) of India Netherlands DTAA. Hence, we are inclined

TUNGSTEN AUTOMATION ENGLAND LTD,UNITED KINGDOM vs. DCIT,INTL TAXATION CIRCLE-3(1)(1), DELHI

In the result, appeal of the assessee is partly allowed

Bench: Shri Vikas Awasthy & Shri Brajesh Kumar Singh[Assessment Year: 2018-19]

Nos.92 and 93/2025. The Hon’ble High Court vide judgment dated 14.07.2025 decided the issue in favour of the assessee by holding that ‘make available’ condition is not satisfied therefore, the receipts does not fall with the meaning of FTS as defined in Article 13(4) of India-UK DTAA ... section 9(1)(viị) of the Act. XXXX 10. That the Respondent/ DRP erred in law in concluding satisfaction of the make available condition under Article 13(4)(c) of the Double Taxation Avoidance Agreement between India and United Kingdom ("India - UK DTAA"), without specifically stating how provision

INVESCO HOLDING COMPANY (US) INC.,USA vs. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE INTERNATIONAL TAXATION 2(1)(1), DELHI, DELHI

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

Bench: Shri Vikas Awasthy& Shri Brajesh Kumar Singhआअसं.846/िद"ी/2025(िन.व. 2022-23) Inveso Holding Company (Us) Inc., C/O Invesco (India) P. Ltd., 15Th Floor, Block 6, North Tower, Divyasree Orion Sez, Raidurgam, Serilingampally, Hyderabad, Telangana 5000032 ...... अपीलाथ"/Appellant Pan: Aaeci-9027-N बनाम Vs. Assisnat Commissioner Of Income-Tax, International Taxation 2(1)(1), Civic Centre, ....."ितवादी/Respondent Minto Road, New Delhi 110002 अपीलाथ" "ारा/ Appellant By: S/Shri Ankul Goyal & Advitya Grover, Advocates "ितवादी"ारा/Respondent By: Shri M.S Nethrapal, Cit-Dr सुनवाई क" ितिथ/ Date Of Hearing : 04/08/2025 घोषणा क" ितिथ/ Date Of Pronouncement : 31/10/2025 आदेश/Order Per Vikas Awasthy, Jm: This Appeal By The Assessee Is Directed Against Assessment Order Dated 20.12.2024 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 2022-23. 2. Shri Ankul Goyal, Appearing On Behalf Of The Assessee Submits That The Solitary Issue In Present Appeal Is Against The Addition Of Rs.54,85,23,539/- In Respect Of Reimbursement Of Cost For Providing It/Support Services Treated As Fee

rendered by Assessee as FIS on the basis that the Assessee was providing training to the personnel of Invesco Group and thus the 'make available condition stands satisfied in the present case the Ld. Counsel submitted that the Assessee only supports and administers IT training and same does not lead

SYNACOR INC.,HAMBURG vs. ACIT, INT.TAX. CIRCLE- 3(1)(2), DELHI

In the result, impugned order is set aside and appeal of the assessee is allowed for statistical purpose

Bench: Shri Vikas Awasthy & Shri Naveen Chandraआअसं.1802/िद"ी/2025(िन.व. 2018-19) Synacor Inc. 485, Sunset Drive, Office #114, Hamburg, Ny 14075 ...... अपीलाथ"/Appellant Pan: Aaxcs-8643-K बनाम Vs. Assistant Commissioner Of Income Tax, International Taxation, Circle 3(1)(2), ..... "ितवादी/Respondent Civic Centre, Minto Road, New Delhi 110002 अपीलाथ" "ारा/ Appellant By : Shri Deepak Chopra, Ms. Priya Tandon & Ms. Seetal Kandpal, Advocates "ितवादी"ारा/Respondent By : Shri M.S Nethrapal, Cit(Dr) सुनवाई क" ितिथ/ Date Of Hearing : 16/10/2025 घोषणा क" ितिथ/ Date Of Pronouncement : : 16/10/2025 आदेश/Order Per Vikas Awasthy, Jm: This Appeal By The Assessee Is Directed Against The Assessment Order Dated 15.01.2025, Passed U/S. 147 R.W.S 144C(13) Of The Income Tax Act,1961(Hereinafter Referred To As ‘The Act’), For Assessment Year 2018-19. 2. Shri Deepak Chopra, Appearing On Behalf Of The Assessee At The Outset Submitted That Though The Assessee Has Raised Multiple Grounds Of Appeal, However, The Effective Grounds Assailing The Addition By Treating Sale Of Software Licenses As Fee For Technical Services (Fts) Are Ground No. 8, 10 & 16 Of Appeal.

Analysis Centre Of Excellence Pvt Ltd vs. CIT, 125 taxmann.com 42(SC). Likewise, Article 12(4)(b) does not get attracted as ‘The make available’ condition is not satisfied qua receipts from sale of software licenses. 4. Per contra, Shri M.S Nethrapal representing the department vehemently defended the impugned order ... technical nature, for it to qualify as a technical service. 11. That the Respondent/ DRP erred in law in concluding satisfaction of the make available condition under Article 12(4)(b) of the India - USA DTAA, without specifically stating how provision of software licences and rendition of maintenance and support

PRATT & WHITNEY CANADA CORP.,CANADA vs. DEPUTY COMMISSIONER OF INCOME TAX, INTERNATIONAL TAXATION, CIRCLE 2(2)(2), NEW DELHI, NEW DELHI

In the result, assessee’s appeals in ITA No

Bench: Shri Vikas Awasthy & Shri Naveen Chandra

Australia, Canada and Singapore are placed since the definition of FTS under these treaties are more or less identical and contain make available condition to qualify as FTS. ii. In the second category countries like, Netherlands, Spain and France can be put in as the definition of FTS in treaties ... service provider. 22. In the facts of the present appeal, the Assessing Officer has failed to demonstrate with cogent evidence that the make available condition enshrined in the concerned treaties are satisfied. In fact, learned first appellate authority has recorded a categorical factual Page

PRATT & WHITNEY CANADA CORP.,CANADA vs. DEPUTY COMMISSIONER OF INCOME TAX, INTERNATIONAL TAXATION, CIRCLE 2(2)(2), NEW DELHI, NEW DELHI

In the result, assessee’s appeals in ITA No

Bench: Shri Vikas Awasthy & Shri Naveen Chandra

Australia, Canada and Singapore are placed since the definition of FTS under these treaties are more or less identical and contain make available condition to qualify as FTS. ii. In the second category countries like, Netherlands, Spain and France can be put in as the definition of FTS in treaties ... service provider. 22. In the facts of the present appeal, the Assessing Officer has failed to demonstrate with cogent evidence that the make available condition enshrined in the concerned treaties are satisfied. In fact, learned first appellate authority has recorded a categorical factual Page

PRATT & WHITNEY CANADA (SEA) PTE. LTD.,SINGAPORE vs. DEPUTY COMMISSIONER OF INCOME TAX, INTERNATIONAL TAXATION, CIRCLE 2(2)(2), NEW DELHI , NEW DELHI

In the result, assessee’s appeals in ITA No

Bench: Shri Vikas Awasthy & Shri Naveen Chandra

Australia, Canada and Singapore are placed since the definition of FTS under these treaties are more or less identical and contain make available condition to qualify as FTS. ii. In the second category countries like, Netherlands, Spain and France can be put in as the definition of FTS in treaties ... service provider. 22. In the facts of the present appeal, the Assessing Officer has failed to demonstrate with cogent evidence that the make available condition enshrined in the concerned treaties are satisfied. In fact, learned first appellate authority has recorded a categorical factual Page

PRATT & WHITNEY CANADA (SEA) PTE. LTD.,SINGAPORE vs. DEPUTY COMMISSIONER OF INCOME TAX, INTERNATIONAL TAXATION, CIRCLE 2(2)(2), NEW DELHI, NEW DELHI

In the result, assessee’s appeals in ITA No

Bench: Shri Vikas Awasthy & Shri Naveen Chandra

Australia, Canada and Singapore are placed since the definition of FTS under these treaties are more or less identical and contain make available condition to qualify as FTS. ii. In the second category countries like, Netherlands, Spain and France can be put in as the definition of FTS in treaties ... service provider. 22. In the facts of the present appeal, the Assessing Officer has failed to demonstrate with cogent evidence that the make available condition enshrined in the concerned treaties are satisfied. In fact, learned first appellate authority has recorded a categorical factual Page

KELLER ASIAPACIFIC LIMITED,SINGAPORE vs. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE INTERNATIONAL TAXATION

In the result, appeal of the assessee is partly allowed in the terms\naforesaid

Bench: Shri Vikas Awasthy&\Nshri Naveen Chandra\Nआअसं.3540/दिल्ली/2023 (नि.व. 2021-22)\Nita No.3540/Del/2023 (A.Y.2021-22)\Nkeller Asia Pacific Ltd.,\N18 Boon Lay Way, No. 4, Tradehub 21,\Nsingapore, 609966\Npan: Aagck5505R\N.... अपीलार्थी/Appellant\Nबनाम Vs.\Nassistant Commissioner Of Income-Tax,\Ncircle International Taxation-2(1)(2)\Ncivic Centre, New Delhi 110002\Nप्रतिवादी/Respondent\Nअपीलार्थी द्वारा / Appellant By\N: Shri Ashik Shah, Ca\Nप्रतिवादीद्वारा / Respondent By\N: Ms. Anjula Jain, Cit-Dr\Nसुनवाई की तिथि / Date Of Hearing\N: 03/06/2025\Nघोषणा की तिथि / Date Of Pronouncement:\N: 26/08/2025\Nआदेश/Order\Nper Vikas Awasthy, Jm:\Nthis Appeal By The Assessee Is Directed Against The Assessment Order Dated\N12.10.2023 Passed U/S 143(3) R.W.S 144C(13) Of The Income Tax Act 1961\N(Hereinafter Referred To As ‘The Act') For Assessment Year 2021-22.\N2. Shri Ashik Shah, Appearing On Behalf Of The Assessee Submitted At The\Noutset That He Is Not Pressing Ground No. 1 To 3 Of Appeal. The Only Ground\Nassailed By The Assessee Is Ground No 4, Relating To Taxability Of Management Fees\Nas Fee For Technical Services (Fts).\N2.

email but are also\nsupplemented by periodic visits of personnel; this clearly shows that there is\ntransfer of know-how and skill, thus make available condition is satisfied in the\npresent case. To substantiate his submissions she placed reliance on the decision\nin the case H.J. Heinz Company Vs. ADIT

BAIN AND COMPANY,USA vs. DCIT, GURGOAN

In the result, appeal of assessee in ITA Nos

Bench: Shri Vijay Pal Rao & Shri Naveen Chandra

category of consultancy services, however, the most crucial condition to be satisfied to qualify as FIS under Article 12(4)(b) is the make available condition. In the facts of the present appeal, the departmental authorities have not brought any material on record to demonstrate that while rendering services ... materials on record, we are of the view that the Revenue has not brought on record any materials to establish the fulfillment of make available condition of Article 12(4)(b) of India - USA DTAA. 18. For the sake of completeness, we must observe that in course of hearing, learned

VERITAS STORAGE (SINGAPORE) PTE. LTD,SINGAPORE vs. DCIT, CIRCLE 3(1)(1), INTERNATIONAL TAXATION, NEW DELHI

In the result, appeal of assessee in ITA No

Bench: Shri Vijay Pal Rao & Shri Naveen Chandra

agreement, it cannot be said that conditions of Article 13(4)(c) are satisfied. Burden is on the Revenue to demonstrate that make available condition is satisfied. Appeal of the assessee on Ground Nos. 4 and 5 are allowed." 8. On perusal of the draft assessment order and the final ... controvert the findings of the above order of the Tribunal. Further, the Department has not brought any evidence on record to substantiate that 'make available' condition is satisfied in the case of the assessee for this assessment year. Therefore, following the decision of the Co-ordinate Bench of the Tribunal

BAIN & COMPANY, INC.,USA vs. DCIT INTL. TAXATION CIRCLE, NEW DELHI

In the result, appeal of assessee in ITA Nos

Bench: Shri Vijay Pal Rao & Shri Naveen Chandra

category of consultancy services, however, the most crucial condition to be satisfied to qualify as FIS under Article 12(4)(b) is the make available condition. In the facts of the present appeal, the departmental authorities have not brought any material on record to demonstrate that while rendering services ... materials on record, we are of the view that the Revenue has not brought on record any materials to establish the fulfillment of make available condition of Article 12(4)(b) of India - USA DTAA. 18. For the sake of completeness, we must observe that in course of hearing, learned