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Tax Publishers Bombardier Transportation Sweden AB v. DCIT [ITA No. 859/Del/2016, dt. 29-10-2020] : 2020 TaxPub(DT) 4606 (Del.-Trib.) Revenue from Intermediary services whether subject to FTS clause under Indo-Sweden DTAA? *Facts:* Assessee a Swedish resident was in receipt of certain intermediary support services (appears to be similar to management/support fees). This was alleged to be taxable under Indo-Sweden DTAA under Fee for Technical Services (FTS). DRP upheld the same. On higher appeal the assessee claimed immunity of "make available clause" of Indo-Portuguese DTAA basing the MFN -- Most favoured nation clause of the Swedish DTAA. Held in favour of the assessee that they were entitled to the benefit of MFN and since the intermediary services did not make available any technology no part of the intermediary services was taxable in India. A second aspect of the ruling is the existence of a PE in a consortium project execution which had offshore deliveries. The PE was alleged basing wrongly on offshore deliveries besides people being exclusively involved in the Project thus creating an agency PE. The PE was negated on facts in favour of the assessee.

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Bombardier Transportation Sweden AB v. DCIT [ITA No. 859/Del/2016, dt. 29-10-2020] : 2020 TaxPub(DT) 4606 (Del.-Trib.)

Revenue from Intermediary services whether subject to FTS clause under Indo-Sweden DTAA?

Facts:

Assessee a Swedish resident was in receipt of certain intermediary support services (appears to be similar to management/support fees). This was alleged to be taxable under Indo-Sweden DTAA under Fee for Technical Services (FTS). DRP upheld the same. On higher appeal the assessee claimed immunity of "make available clause" of Indo-Portuguese DTAA basing the MFN -- Most favoured nation clause of the Swedish DTAA.

Held in favour of the assessee that they were entitled to the benefit of MFN and since the intermediary services did not make available any technology no part of the intermediary services was taxable in India.

A second aspect of the ruling is the existence of a PE in a consortium project execution which had offshore deliveries. The PE was alleged basing wrongly on offshore deliveries besides people being exclusively involved in the Project thus creating an agency PE. The PE was negated on facts in favour of the assessee.