The Tax Publishers2021 TaxPub(DT) 0245 (Mum-Trib) : (2021) 085 ITR (Trib) 0607

INCOME TAX ACT, 1961

Section 90

Just because the Indian entity was interacting with project leader and getting inputs from him did not mean that the Indian entity was transferred the technology of being a project leader of this type and next time Indian entity could perform similar services without recourse to the same which was the core test for fulfilment of 'make-available' clause. Under article 12 of Indo Swedish DTAA. Accordingly, amount received by Swedish assessee towards provisioning of SAP software and licence to Indian associate on 'cost-to-cost basis could not be taxed as fees for technical services.

Double taxation relief - Agreement between India and Sweden - Fees for technical service -

Assessee purchased SAP software licence from a third party and provided SAP software and licence to Indian associate on 'cost-to-cost basis. AO held that payment received by assessee was taxable in the hands of assessee as fee for technical services under article 1 of Indo-Swedish DTAA. Held: Just because the Indian entity was interacting with project leader and getting inputs from him did not mean that the Indian entity was transferred the technology of being a project leader of this type and next time Indian entity could perform similar services without recourse to the same which was the core test for fulfilment of 'make available' clause, under article 12 of Indo Swedish DTAA. Accordingly, amount received by assessee could not be taxed as fees for technical services.

REFERRED :

FAVOUR : In assessee's favour.

A.Y. : 2015-16



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