make available condition — 106 case laws

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

In the result, the assessee’s appeal is partly allowed

ITA 4711/MUM/2023[2021-22]Status: DisposedITAT Mumbai06 Sept 2024AY 2021-22

Bench: Ms. Kavitha Rajagopal & Smt. Renu Jauhrishell Information V/S. Dcit (International Tax)- Technology International बनाम 4(2)(1), Bv 17Th Floor, Room No. 1708, C/O. Bsr & Co. Llp, Air India Building, 2Nd Floor, Lodha Excelus, Nariman Point, Apollo Mills Compound, Mumbai-400021 N.M. Joshi Marg, Mahalakshmi, Mumbai-400011 स्थायी लेखा सं./जीआइआर सं./Pan/Gir No: Aaics9091A Appellant/अपीलाथी .. Respondent/प्रतिवादी

For Appellant: Shri Madhur AgarwalFor Respondent: Smt. Shaileja Rai

Section 143(3)Section 144C(13)Section 144C(5)Section 153Section 2(24)Section 234ASection 234BSection 234C

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 dye/lab/c by the assessee to the insurance companies

Tech Data (Singapore) Pte Limited, Mumbai vs. DCIT, International Taxation Circle-4(1)(2), Mumbai

In the result, ground No.3 of appeal is allowed

ITA 4540/MUM/2023[2021-22]Status: DisposedITAT Mumbai29 Jul 2024AY 2021-22

Bench: Shri Narendra Kumar Billaiya, Hon’Ble & Shri Rahul Chaudhary, Hon’Ble

For Appellant: Shri Nitesh Joshi, A/RFor Respondent: Shri Anil Sant, Addl. CIT D/R

Section 143(3)Section 144C(13)Section 234ASection 234BSection 253(1)(d)Section 270ASection 274

requisite for invoking Clause-4 of Article-12 of the DTAA is that either there should be transfer of some technical knowhow i.e. make available condition is satisfied or there should be development and transfer of technical plan or technical design. The services rendered by the assessee as per Schedule

Invesco Uk Limited, Uk vs. ACIT, Circle Int.Tax. 2(1)(1), New Delhi

The appeals of the assessee are allowed

ITA 785/DEL/2023[2020-21]Status: DisposedITAT Delhi23 Jul 2024AY 2020-21

Bench: Sh. G.S. Pannu & Sh. Anubhav Sharma

Section 143(3)Section 144C(5)Section 270ASection 274

hands of the Assessee. Furthermore, it was again submitted that the IT Services provided by the Assessee does not satisfy the make available condition under Article 12(4)(b) of the India-USA DTAA. Reliance was also placed on case laws discussing the interpretation of the term 'make available ... 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

Invesco Holding Company (Us) Inc., Usa vs. ACIT, Circle Int. Tax. 2(1)(1), New Delhi

The appeals of the assessee are allowed

ITA 784/DEL/2023[2020-21]Status: DisposedITAT Delhi23 Jul 2024AY 2020-21

Bench: Sh. G.S. Pannu & Sh. Anubhav Sharma

Section 143(3)Section 144C(5)Section 270ASection 274

hands of the Assessee. Furthermore, it was again submitted that the IT Services provided by the Assessee does not satisfy the make available condition under Article 12(4)(b) of the India-USA DTAA. Reliance was also placed on case laws discussing the interpretation of the term 'make available ... 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

M/S. Steer America Inc., United States vs. The Deputy Commissioner of Income Tax, International Taxation Circle -1(2), Bengaluru

In the result, both the appeals of the assessee are partly allowed

ITA 833/BANG/2024[2014-15]Status: DisposedITAT Bangalore10 Jul 2024AY 2014-15

Bench: Shri Chandra Poojari & Shri Prakash Chand Yadav

For Appellant: Sri Vasanth Kumar, A.RFor Respondent: Ms. Anjala Sahu, D.R

Section 144CSection 147Section 148

view of aforesaid, services provided by assessee were neither in nature of technical or consultancy services under article 12(4) and even make available condition provided under article 12(4)(b) was not satisfied. Thus, consideration received by assessee could not be treated as FIS under article

M/S. Steer America Inc., United States vs. The Deputy Commissioner of Income Tax, International Taxation Circle -1(2), Bengaluru

In the result, both the appeals of the assessee are partly allowed

ITA 832/BANG/2024[2013-14]Status: DisposedITAT Bangalore10 Jul 2024AY 2013-14

Bench: Shri Chandra Poojari & Shri Prakash Chand Yadav

For Appellant: Sri Vasanth Kumar, A.RFor Respondent: Ms. Anjala Sahu, D.R

Section 144CSection 147Section 148

view of aforesaid, services provided by assessee were neither in nature of technical or consultancy services under article 12(4) and even make available condition provided under article 12(4)(b) was not satisfied. Thus, consideration received by assessee could not be treated as FIS under article

Temenos Headquarters Sa, Switzerland vs. Deputy Commissioner of Income Tax, International Taxation 2(2), Chennai

In the result, appeals filed by the assessee for assessment years 2016-17, 2020-21 & 2021-22 are allowed and stay applications filed by the assessee for assessment years

ITA 1575/CHNY/2023[2021-22]Status: DisposedITAT Chennai12 Jun 2024AY 2021-22

Bench: Shri Mahavir Singh, Hon’Ble & Shri S. R. Ragunatha, Hon’Bleआयकर अपीलसं./Ita Nos.: 1573, 1574 & 1575/Chny/2023 िनधा"रणवष" / Assessment Years: 2016-17, 2020-21 & 2021-22 & S.A. Nos. 20, 21/Chny/2024 [In Ita Nos. 1574 & 1575/Chny/2023] िनधा"रण वष" / Assessment Years : 2020-21, 2021-22 Temenos Headquarters Sa, Deputy Commissioner Of No.2, Rue De Lecole De V. Income Tax, Chimie, International Taxation -2(2), 1205 Geneva, Chennai. Switzerland- 1205. [Pan:Aadct-7868-H] (अपीलाथ"/Appellant) (""यथ"/Respondent) अपीलाथ" क" ओरसे/Appellant By : Shri. R. Sivaraman, Advocate ""यथ" क" ओरसे/Respondent By : Shri. V. Nandakumar, Cit सुनवाई क" तारीख/Date Of Hearing : 24.04.2024 घोषणा क" तारीख/Date Of Pronouncement : 12.06.2024

For Appellant: Shri. R. Sivaraman, AdvocateFor Respondent: Shri. V. Nandakumar, CIT

Section 143(2)Section 143(3)

21/Chny/2024 the tax 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

Temenos Headquarters Sa, Switzerland vs. Deputy Commissioner of Income Tax, International Taxation 2(2), Chennai

In the result, appeals filed by the assessee for assessment years 2016-17, 2020-21 & 2021-22 are allowed and stay applications filed by the assessee for assessment years

ITA 1574/CHNY/2023[2020-21]Status: DisposedITAT Chennai12 Jun 2024AY 2020-21

Bench: Shri Mahavir Singh, Hon’Ble & Shri S. R. Ragunatha, Hon’Bleआयकर अपीलसं./Ita Nos.: 1573, 1574 & 1575/Chny/2023 िनधा"रणवष" / Assessment Years: 2016-17, 2020-21 & 2021-22 & S.A. Nos. 20, 21/Chny/2024 [In Ita Nos. 1574 & 1575/Chny/2023] िनधा"रण वष" / Assessment Years : 2020-21, 2021-22 Temenos Headquarters Sa, Deputy Commissioner Of No.2, Rue De Lecole De V. Income Tax, Chimie, International Taxation -2(2), 1205 Geneva, Chennai. Switzerland- 1205. [Pan:Aadct-7868-H] (अपीलाथ"/Appellant) (""यथ"/Respondent) अपीलाथ" क" ओरसे/Appellant By : Shri. R. Sivaraman, Advocate ""यथ" क" ओरसे/Respondent By : Shri. V. Nandakumar, Cit सुनवाई क" तारीख/Date Of Hearing : 24.04.2024 घोषणा क" तारीख/Date Of Pronouncement : 12.06.2024

For Appellant: Shri. R. Sivaraman, AdvocateFor Respondent: Shri. V. Nandakumar, CIT

Section 143(2)Section 143(3)

21/Chny/2024 the tax 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

Temenos Headquarters Sa, Switzerland vs. Deputy Commissioner of Income Tax, International Taxation 2(2), Chennai

In the result, appeals filed by the assessee for assessment years 2016-17, 2020-21 & 2021-22 are allowed and stay applications filed by the assessee for assessment years

ITA 1573/CHNY/2023[2016-17]Status: DisposedITAT Chennai12 Jun 2024AY 2016-17

Bench: Shri Mahavir Singh, Hon’Ble & Shri S. R. Ragunatha, Hon’Bleआयकर अपीलसं./Ita Nos.: 1573, 1574 & 1575/Chny/2023 िनधा"रणवष" / Assessment Years: 2016-17, 2020-21 & 2021-22 & S.A. Nos. 20, 21/Chny/2024 [In Ita Nos. 1574 & 1575/Chny/2023] िनधा"रण वष" / Assessment Years : 2020-21, 2021-22 Temenos Headquarters Sa, Deputy Commissioner Of No.2, Rue De Lecole De V. Income Tax, Chimie, International Taxation -2(2), 1205 Geneva, Chennai. Switzerland- 1205. [Pan:Aadct-7868-H] (अपीलाथ"/Appellant) (""यथ"/Respondent) अपीलाथ" क" ओरसे/Appellant By : Shri. R. Sivaraman, Advocate ""यथ" क" ओरसे/Respondent By : Shri. V. Nandakumar, Cit सुनवाई क" तारीख/Date Of Hearing : 24.04.2024 घोषणा क" तारीख/Date Of Pronouncement : 12.06.2024

For Appellant: Shri. R. Sivaraman, AdvocateFor Respondent: Shri. V. Nandakumar, CIT

Section 143(2)Section 143(3)

21/Chny/2024 the tax 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

Kony Inc, United States of America vs. Deputy Commissioner of Income-Tax, Chennai

In the result, appeal filed by the assessee is allowed

ITA 1572/CHNY/2023[AY 2021-22]Status: DisposedITAT Chennai30 May 2024

Bench: Shri Mahavir Singh, Hon’Ble & Shri S. R. Ragunatha, Hon’Bleआयकर अपील सं./Ita No.: 1572/Chny/2023 िनधा"रण वष" / Assessment Year: 2021-22 Kony Inc., Deputy Commissioner Of 5301, Southwest Parkway, V. Income Tax, Suite 250, International Taxation -1(2), Austin, Texas, Chennai. Usa - 5301 [Pan: Aaeck-4771-D] (अपीलाथ"/Appellant) (""यथ"/Respondent) अपीलाथ" क" ओर से/Appellant By : Shri. R. Sivaraman, Advocate : Shri. D. Hema Bhupal, Jcit ""यथ" क" ओर से/Respondent By सुनवाई क" तारीख/Date Of Hearing : 24.04.2024 घोषणा क" तारीख/Date Of Pronouncement : 30.05.2024

For Appellant: Shri. R. Sivaraman, Advocate

Section 143(2)Section 143(3)Section 144C

1572/Chny/2023 the tax 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

Tech Data (Singapore) Pte Limited (Formerly Known As "Technology Solutions (Singapore) Pte Limited), Mumbai vs. The Deputy Commissioner of Income Tax, International Tax Circle-4(1)(2), Mumbai

In the result, ground No.3 of appeal is allowed

ITA 3280/MUM/2023[2020-21]Status: DisposedITAT Mumbai23 Apr 2024AY 2020-21

Bench: SHRI AMARJIT SINGH (Accountant Member), MS. KAVITHA RAJAGOPAL (Judicial Member)

For Appellant: Nitesh JoshiFor Respondent: Anil Sant

Section 143(2)Section 143(3)Section 144CSection 234ASection 234BSection 270ASection 274

some technical P a g e | 11 Tech Data (Singapore ) Pte Ltd. Vs. The DCIT, IT, Circle 4(1)(2) knowhow i.e. make available condition is satisfied or there should be development and transfer of technical plan or technical design. The services rendered by the assessee as per Schedule

Shell Information Technology International Bv, Mumbai vs. DCIT (It) 4 (2) (1), Mumbai

ITA 3339/MUM/2023[2020-21]Status: DisposedITAT Mumbai04 Apr 2024AY 2020-21

For Appellant: Shri Madhur AgarwalFor Respondent: Shri Ajay Kumar Sharma

Section 143(3)Section 144C(13)Section 144C(5)Section 153Section 2(24)Section 234ASection 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 dye/lab/c by the assessee to the insurance companies

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

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 is satisfied. In holding so, the Ld. DRP failed to appreciate that the Ld. DRP in the case of LW US held that know ... judicial precedents cited above, we are of the view that the sub-contracting charges received by the assessee does not satisfy the make available condition as envisaged under Article 12(4) of the India-USA DTAA and hence are not chargeable to tax as FIS in India in the hands

Bechtel Power Corporation, United States vs. ACIT Circle-Internationa Taxation 1(1)(2), New Delhi

In the result, all the four appeals are allowed on this

ITA 796/DEL/2021[2017-18]Status: DisposedITAT Delhi31 Jan 2024AY 2017-18

Bench: Shri G.S. Pannu, Vice- & Shri Saktijit Dey, Vice-

For Appellant: Sh. Deepak Chopra, AdvFor Respondent: Sh. Vizay B. Vasanta, CIT-DR &

receipts, indeed, are in the nature of FTS/FIS under the respective tax treaties as not only the services are of technical nature but make available condition is also satisfied. However, learned DRP held that since the assessees have business connection and PE in India, FTS/FIS income would be taxable

Bechtel Limited, United Kingdom vs. ACIT Circle- International Taxation 1(1)(2), New Delhi

In the result, all the four appeals are allowed on this

ITA 795/DEL/2021[2017-18]Status: DisposedITAT Delhi31 Jan 2024AY 2017-18

Bench: Shri G.S. Pannu, Vice- & Shri Saktijit Dey, Vice-

For Appellant: Sh. Deepak Chopra, AdvFor Respondent: Sh. Vizay B. Vasanta, CIT-DR &

receipts, indeed, are in the nature of FTS/FIS under the respective tax treaties as not only the services are of technical nature but make available condition is also satisfied. However, learned DRP held that since the assessees have business connection and PE in India, FTS/FIS income would be taxable