Providing information technology/administrative services whether subject to tax as per Article 12(4) of Indo-US DTAA as fee for included services

Facts: Assessee a US resident was providing a bouquet of info-tech/administrative services as part of their group services to its Indian affiliate entity. It was the case of the lower authorities and the DRP that these were falling in the scope of Fee for Included services (FIS) as per Indo US DTAA Article 12 and thus subject to tax in India. Plea of the assessee was two fold that the scope of FIS was more narrower than fee for technical services and unless the services provided "made available" they cannot be falling in the scope of FIS as per Indo-US DTAA. On higher appeal by assessee.

Held: In favour of the assessee that the scope of FIS as per Indo-US DTAA Article 12(4) was more limited and narrower and since the services did not make available any benefit they were not subject to tax in India.

Referred: De Beers India Minerals (P.) Ltd. (2012) 346 ITR 467 (Karn) : 2012 TaxPub(DT) 2504 (Karn-HC) and DIT v. Guy Carpenter & Co. Ltd. (2012) 346 ITR 504 (Del) : 2012 TaxPub(DT) 2095 (Del-HC)

Note: A similar case by the regional entity of Singapore was also held in assessee's favour as per Indo-Singapore DTAA.

Case: (I) Bio Rad Laboratories Inc. v. ACIT 2023 TaxPub(DT) 2 (Del-Trib)

(II) Bio Rad Laboratories (Singapore) (P) Ltd. v. ACIT 2023 TaxPub(DT) 3 (Del-Trib)