Defination Meaning

While indian Goverment made Double Taxation Aviodance Agreement with other foreign Company they used a term "Make Avialable" in the context of Technical Services.

The Income Tax Applicate Tribunal give their judgement on that Term which is as fellow :-

Based on the decision of Mumbai tax Tribunal

A question arises as to the meaning of the term ‘make available’ in the definition of ‘fees

for included services’. That is, when can the technical services be regarded as making

available technical knowledge, etc. to the recipient of the services. This issue has been

examined by the Mumbai tax Tribunal*10 in the context of an Indian company making

commission payment to a UK-based lead manager in respect of a GDR issue managed by the

latter in the UK. The issue was whether the services performed by the UK company could be

regarded as making available to the Indian company any technical knowledge etc. by virtue

of performing its services. The Tribunal examined the scope of the expression “make

available” in the definition of ‘fees for technical services’ (which is similar to the definition of

the term ‘fees for included services’ in the US Convention) and came to the conclusion that

the services did not “make available” any technical knowhow etc. The Tribunal took the view

that technical knowhow, etc. can be regarded as being made available only if it enables the

person receiving the services to in turn be able to offer those services to another. The

services wherein the service provider himself utilizes his technical knowledge, etc. to

perform the services without passing on the technology contained in the services to the

recipient of the services cannot be regarded as “making available” the technical knowledge,

etc. to the recipient. That would be a case of making available fruits of the technical

knowledge, etc. to the recipient and not the technical knowledge itself. The Tribunal held

that in the case before it, the recipient of the service (i.e., the Indian company) did not

acquire any expertise to manage GDR issues. Therefore, the services did not make available

any technical knowledge, etc. to the recipient. In arriving at the conclusion, the Tribunal was

guided, inter alia, by the protocol to the US Convention which gives various illustrations of

when a service is to be regarded as making available technical knowledge, etc.