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
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.
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