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“make available condition”

International TaxDTAA FTS ArticleDTAA FTS Article106 judgments

The decision most relied on for make available condition is CIT v. Kotak Securities Ltd. (383 ITR 1), cited in 203 judgments on BharatTax.

Leading authorities on make available condition

CIT v. Kotak Securities Ltd.
383 ITR 1 · 2016 · Supreme Court
203
citing judgments

Fees for technical services under Section 9(1)(vii) can include payments for fully automated services even without direct human interface, as modern technological developments blur the specific human element in such processes.

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.

87 ITD 653 (Kol.)(TM). (c) Dy. DIT v. Preroy A.G
307 ITR 418 · 2008 · Reported
118
citing judgments

Amounts received for services rendered are not treated as Fees for Technical Services (FTS) under Article 12(4)(b) of a tax treaty if the 'make available' condition is not satisfied.

Steria (India) Ltd. v. CIT
386 ITR 390 · 2016 · High Court
83
citing judgments

Managerial services are not considered 'fees for included services' under Article 13(4) of the India-UK Double Taxation Avoidance Agreement, thus payments for such services are not taxable as FTS under the treaty.

DCIT v. Welspun Corporation Ltd.
77 Taxmann.com 165 · 2017 · ITAT
69
citing judgments

Subscription fees received by a non-resident for information access do not constitute 'royalty' for the use of copyright under the Income-tax Act, 1961. The case also elaborates on the scheme of taxability for non-residents under Section 5(2) of the Act, especially concerning income deemed to accrue or arise in India.

(International Taxation) v. Bio-Rad Laboratories (Singapore) Pte. Ltd.
459 ITR 5 · 2023 · High Court
34
citing judgments

For income to be characterized as 'fees for included services', the Revenue must prove that the assessee provided technical or consultancy services that involved making available technical knowledge, experience, skill, know-how, or processes. Access to a database alone does not meet this 'make available' condition.

DCIT v. ITC Ltd.
82 ITD 239 · 2002 · ITAT
27
citing judgments

Project-specific drawings, layouts, plans, and designs are not considered fees for technical services (FTS) if the technology is not made available to the recipient for their commercial use as an owner.

Exxon Mobil Company India Pvt. Ltd. v. Addl. CIT
92 Taxmann.com 5 · 2018 · ITAT
22
citing judgments

Payments for services are not fees for technical services under a DTAA if the foreign company does not make available technical knowledge, expertise, skill, know-how, or processes that enable the Indian assessee to apply the technology independently.

Judgments citing make available condition

Shell Information Technology International Bv, Mumbai vs. Deputy Commissioner of Income Tax (International Taxation )-4(2)(1), Mumbai

ITA 1750/MUM/2025[2022-23]Status: DisposedITAT Mumbai28 Jul 2025AY 2022-23

Bench: SHRI RAHUL CHAUDHARY, JUDICIAL MEMBER SHRI PRABHASH SHANKAR (Accountant Member)

For Appellant: Shri Madhur AgarwalFor Respondent: Shri Satya Pal Kumar
Section 143(3)Section 144C(13)Section 144C(5)Section 2(24)Section 234BSection 270A

know-how or processes, or consist of the development and transfer of a technical plan or technical design. According to the Tribunal this make available condition has not been satisfied inasmuch as no technical knowledge, experience, skill, knowhow, processes, have been made available by the assessee to the insurance companies

M/S. Ceva Freight Llc, New Delhi vs. DDIT, New Delhi

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

ITA 1264/DEL/2014[2010-11]Status: DisposedITAT Delhi18 Jul 2025AY 2010-11

Bench: Ms. Madhumita Roy & Shri Naveen Chandra

For Appellant: Shri Salil Kapoor, AdvFor Respondent: Shri Vizay B. Vasanta, CIT-DR
Section 143(2)Section 143(3)Section 234B

Order. Page 7 of 14 M/s CEVA Freight LLC Vs DDIT 14. The ld. counsel for the assessee continued by saying that Make available conditions are not fulfilled under India USA-DTAA and services are rendered on year-to-year basis and if the services are rendered on year ... year basis means that make available condition is not fulfilled. Reliance is placed on the Bio-Rad Laboratories (Singapore) Pte Ltd. [2023] 459 ITR 5 [Delhi)-Para 14. The ld. counsel for the assessee submitted that the agreement is effective from 1-1-2010 and the assessee

Coursera Inc., California vs. ACIT, Circle Intl Tax-1(2)(1), Delhi

In the result, the appeal of the assessee is allowed

ITA 1958/DEL/2025[2022-23]Status: HeardITAT Delhi29 May 2025AY 2022-23

Bench: Shri Vijay Pal Rao & Shri Naveen Chandracoursera Inc. Vs. Acit, Circle-1(2)(1) 381, East Evelyn Avenue International Taxation, Mountain View, Civic Centre, Minto Road California United States New Delhi – 110002 Of America - 94040 "थायीलेखासं./जीआइआरसं./Pan/Gir No: Aaicc4141K Appellant .. Respondent

For Appellant: Sh. Sachit Jolly, Sr. Adv, &For Respondent: Dr. Vedanshu Tripathi, CIT, DR
Section 139(1)Section 143Section 144C(5)Section 153Section 234BSection 270A

itself would not be enough to bring such receipts within the purview of Article 12(4) of India – USA DTAA, unless the make available condition is satisfied. Burden is entirely on the Revenue to prove that in course of rendition of services, the assessee has transferred technical knowledge, know

Deputy Commissioner of Income Tax, Gurgaon vs. Hays Business Solutions Private Limited, Gurgaon

The appeal of the Revenue is dismissed

ITA 3003/DEL/2023[2014-15]Status: DisposedITAT Delhi29 May 2025AY 2014-15

Bench: SHRI MAHAVIR SINGH (Vice President), SHRI MANISH AGARWAL (Accountant Member)

Section 143(2)Section 143(3)Section 195(1)Section 250Section 37Section 40

services are routine in nature and do not enable the appellant to perform the functions on its own in the future. Thus, the make available condition is not satisfied and hence, these services do not qualify as FTS under the tax treaties. 4.2.8 In view of this, it is submitted

ITO (International Taxation) Gurgaon, Udyog Vihar, Gurgaon vs. Bain and Company India Private Ltd., Dlf Cyber City Phase-II

In the result, appeals of the Revenue are dismissed

ITA 2869/DEL/2024[2014-15]Status: HeardITAT Delhi28 May 2025AY 2014-15

Bench: Shri Challa Nagendra Prasad & Shri Avdhesh Kumar Mishra

Section 195Section 201

hotel, market information etc.), certainly, do not fall under category of technical services. 6.7.1 Further, in order to qualify any services as FTS, make available condition should be satisfied, however, in the present set of facts there is no material on record to demonstrate that Bain US had made available

ITO (International Taxation) Gurgaon, Udyog Vihar, Gurgaon vs. Bain and Company India Private Ltd., Gurgaon

In the result, appeals of the Revenue are dismissed

ITA 2867/DEL/2024[2012-13]Status: HeardITAT Delhi28 May 2025AY 2012-13

Bench: Shri Challa Nagendra Prasad & Shri Avdhesh Kumar Mishra

Section 195Section 201

hotel, market information etc.), certainly, do not fall under category of technical services. 6.7.1 Further, in order to qualify any services as FTS, make available condition should be satisfied, however, in the present set of facts there is no material on record to demonstrate that Bain US had made available

Kony Inc, United States of America vs. Deputy Commissioner of Income Tax, International Taxation 1(2), Chennai, Tamil Nadu

In the result, the appeal filed by the assessee is allowed and the stay petition filed by the assessee is dismissed

ITA 185/CHNY/2025[2022-23]Status: DisposedITAT Chennai08 May 2025AY 2022-23

Bench: Shri George George K & Shri Jagadish

For Appellant: Shri R. Sivaraman, AdvocateFor Respondent: Shri V. Justin, CIT
Section 143(2)Section 4

treaty. As could be seen, to be considered as FIS under Article 12(4)(b) under the tax treaty, the make available condition has to be satisfied. In the facts of the present appeal, the Departmental Authorities have failed to demonstrate that while rendering the services, the assessee had made

Subodh Gupta, Delhi vs. ACIT, New Delhi

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

ITA 1264/DEL/2017[2009-10]Status: DisposedITAT Delhi31 Jan 2025AY 2009-10

Bench: Ms. Madhumita Roy & Shri Naveen Chandra

For Appellant: Shri Salil Kapoor, AdvFor Respondent: Shri Vizay B. Vasanta, CIT-DR
Section 143(2)Section 143(3)Section 234B

Order. Page 7 of 14 M/s CEVA Freight LLC Vs DDIT 14. The ld. counsel for the assessee continued by saying that Make available conditions are not fulfilled under India USA-DTAA and services are rendered on year-to-year basis and if the services are rendered on year ... year basis means that make available condition is not fulfilled. Reliance is placed on the Bio-Rad Laboratories (Singapore) Pte Ltd. [2023] 459 ITR 5 [Delhi)-Para 14. The ld. counsel for the assessee submitted that the agreement is effective from 1-1-2010 and the assessee

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)

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

Murex Southeast Asia Private Limited, Mumbai vs. Deputy Commissioner of Income Tax (Int Taxation) 3(2)(2), Mumbai

In the result, both the appeals are partly allowed in the

ITA 4630/MUM/2023[2021-22]Status: DisposedITAT Mumbai13 Jan 2025AY 2021-22

Bench: Shri Saktijit Dey, V.P. & Ms. Padmavathy S, A.M.

Section 9(1)(vii)

Further, the assessee submitted that the receipts cannot be treated as FTS even under Article 12(4)(b) of the Treaty as the make available condition is not satisfied. The Assessing Officer, however, did not agree with the contentions of the assessee. 4. Referring to various clauses of the maintenance ... Department seeks to invoke Article 12(4)(b) of the treaty the burden is entirely on the department to demonstrate the fulfillment of make available condition through cogent evidence. Unfortunately, the Department has failed to do so. The other allegation of the Assessing Officer that the assessee has offered similar

Murex Southeast Asia Pvt Ltd, Singapore vs. Deputy Comm. of Income Tax (Int Taxation) 3(2)(2), Mumbai

In the result, both the appeals are partly allowed in the terms indicated above

ITA 2417/MUM/2022[2019-20]Status: DisposedITAT Mumbai13 Jan 2025AY 2019-20

Bench: Shri Saktijit Dey, V.P. & Ms. Padmavathy S, A.M. A.Y. 2019-20 A.Y. 2021-22 Murex Southeast Asia Pvt. Ltd. Deputy Commissioner Of # 19-01, 10 Marina Boulevard, Income Tax Marina Bay Financial Centre, International Tax Vs. Tower 2, Singapore 018983 3(2)(2), Mumbai, Case Of Address 16Th Floor, Air India 503, Avior, Nrimal Galaxy, Building, Nariman Point, Opp Johnson & Johnson, Lbs Mumbai 400021 Marg Mulund West, Mumbai 400080 (Appellant) (Respondent) Pan Aaicm 4006F Assessee By Shri Ajit Jain/Ms. Mitali Pakle & Ms. Shreya Sejpal Revenue By Shri Krishna Kumar, Sr. Dr Date Of Hearing 18.12.2024 Date Of Pronouncement 13.01.2025

Section 9(1)(vii)

Further, the assessee submitted that the receipts cannot be treated as FTS even under Article 12(4)(b) of the Treaty as the make available condition is not satisfied. The Assessing Officer, however, did not agree with the contentions of the assessee. 4. Referring to various clauses of the maintenance ... Department seeks to invoke Article 12(4)(b) of the treaty the burden is entirely on the department to demonstrate the fulfillment of make available condition through cogent evidence. Unfortunately, the Department has failed to do so. The other allegation of the Assessing Officer that the assessee has offered similar

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)

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

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

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

Sumo Logic, Inc., Usa vs. The Assistant Commissioner of Income Tax, International Taxation, Circle 3(1)(2), Delhi

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

ITA 3350/DEL/2023[2021-22]Status: DisposedITAT Delhi27 Dec 2024AY 2021-22

Bench: Shri Saktijit Dey & Shri S. Rifaur Rahman(Assessment Year : 2021-22 Sumo Logic, Inc. Vs. Acit, Circle Int. Tax 3(1)(2), 3Rd Floor, 305 Main Street, Delhi. Redwood City, California, Foreign, United States. C/O Deloitte Haskins & Sells Llp, Tower-B, 7Th Floor, Building 10, Dlf Cyber City Complex, Phase-Ii, Gurgaon-122002. (Pan: Abecs 9368 P) (Appellant) (Respondent) Assessee By : Shri Sachit Jolly, Adv. & Shri Aditya Rathore, Adv. Revenue By : Shri Vijay B Vasanta, Cit Dr Date Of Hearing : 03.10.2024 Date Of Order : 27.12.2024 O R D E R Per S. Rifaur Rahman, Am : 1. The Captioned Appeal Preferred By The Assessee Is Directed Against The Assessment Order Dated 28.09.2023 Passed By The Learned Assistant Commissioner

For Appellant: Shri Sachit Jolly, Adv. &For Respondent: Shri Vijay B Vasanta, CIT DR
Section 143(3)Section 144C(13)Section 144C(5)

itself would not be enough to bring such receipts within the purview of Article 12(4) of India USA DTAA, unless the make available condition is satisfied. Burden is entirely on the Revenue to prove that in course of rendition of services, the assessee has transferred technical knowledge, know

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)

construed as an enablement, conferral of knowledge and which would lead to the payer becoming skilled to perform those functions independently. The make available condition would be satisfied if the services rendered entails equipping the recipient with skill and evidencing an apparent conferment, alienation or transfer of skill, knowledge ... would then have the capability to deploy that knowledge or skill without reference to the original provider. This reinforces our view that the make available condition would be satisfied only if the rendering of service involves a clear and demonstrable transfer of technical skills, expertise or know

Eurofins Peenya Resources Private Limited (Formerly Known As Eurofins Advinus Limited), Bangalore vs. Deputy Commissioner of Income-Tax, Circle-2(1)(1), Bangalore

In the result, the appeal for AY 2013-14 is partly allowed

ITA 1114/BANG/2023[2014-15]Status: DisposedITAT Bangalore13 Dec 2024AY 2014-15

Bench: Shri Prashant Maharishi & Shri Prakash Chand Yadav

For Appellant: Shri Padamchand Khincha, CAFor Respondent: Shri D.K. Mishra, CIT(DR)(ITAT), Bengaluru
Section 143(3)Section 144BSection 147Section 148Section 148ASection 250

Nos.1113 & 1114/Bang/2023 Page 5 of 18 not constitute fees for technical services under relevant articles of the Double Tax Avoidance Agreement as the make available condition is not satisfied. 4.5. Based on the facts and circumstances of the case and law, payments for AMC and maintenance charges were not chargeable

M/S. Eurofins Peenya Resources Private Limited(Formerly Know As Eurofins Advinus Limited), Bangalore vs. Deputy Commissioner of Income-Tax, Circle-2(1)(1), Bangalore

In the result, the appeal for AY 2013-14 is partly allowed

ITA 1113/BANG/2023[2013-14]Status: DisposedITAT Bangalore13 Dec 2024AY 2013-14

Bench: Shri Prashant Maharishi & Shri Prakash Chand Yadav

For Appellant: Shri Padamchand Khincha, CAFor Respondent: Shri D.K. Mishra, CIT(DR)(ITAT), Bengaluru
Section 143(3)Section 144BSection 147Section 148Section 148ASection 250

Nos.1113 & 1114/Bang/2023 Page 5 of 18 not constitute fees for technical services under relevant articles of the Double Tax Avoidance Agreement as the make available condition is not satisfied. 4.5. Based on the facts and circumstances of the case and law, payments for AMC and maintenance charges were not chargeable

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)

transferred technical knowledge, know-how, skill, experience etc. to the service recipient. He submitted, the Revenue has failed to establish the fulfilment of make available condition. In support of his contention, learned counsel relied upon a catena of judicial precedents as furnished in the case-law compilation. 8. Drawing ... receipts within tax net is to invoke Article 12(4)(b) of India – USA DTAA. However, the said provision requires fulfillment of the ‘make available’ condition. A reading of the assessment orders should reveal that except making general observations that while rendering services the assessee has made available technical knowledge

ITO TDS Ward -1(2)(2) International Taxation, New Delhi vs. Bharti Airtel Limited, New Delhi

In the result, appeal is dismissed

ITA 8044/DEL/2019[2014-15]Status: DisposedITAT Delhi09 Oct 2024AY 2014-15

Bench: SHRI SAKTIJIT DEY (Vice President), SHRI NAVEEN CHANDRA (Accountant Member)

Section 201Section 201(1)Section 9(1)(vi)

first appellate authority. 14. While deciding the issue, learned first appellate authority, at the outset, negated assessee’s contention regarding non-fulfillment of ‘make available’ condition for treating the receipts as FTS. Though, in principle, he accepted assessee’s contention that as per the Protocol to India – Isreal and India ... treaties entered between 12 | P a g e ITA No.7891/Del/2019 & 8044/Del/2019 India and some other OECD countries would apply. Hence, the ‘make available’ condition provided in treaties between Indian and other OECD countries would apply. After examining the scope of AMC, learned first appellate authority observed that

Bharti Airtel Ltd., New Delhi vs. ACIT, Circle-4(2), New Delhi

In the result, appeal is dismissed

ITA 7891/DEL/2019[2014-15]Status: DisposedITAT Delhi09 Oct 2024AY 2014-15

Bench: SHRI SAKTIJIT DEY (Vice President), SHRI NAVEEN CHANDRA (Accountant Member)

Section 201Section 201(1)Section 9(1)(vi)

first appellate authority. 14. While deciding the issue, learned first appellate authority, at the outset, negated assessee’s contention regarding non-fulfillment of ‘make available’ condition for treating the receipts as FTS. Though, in principle, he accepted assessee’s contention that as per the Protocol to India – Isreal and India ... treaties entered between 12 | P a g e ITA No.7891/Del/2019 & 8044/Del/2019 India and some other OECD countries would apply. Hence, the ‘make available’ condition provided in treaties between Indian and other OECD countries would apply. After examining the scope of AMC, learned first appellate authority observed that