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TMI Blog2009 (8) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... considered as fees for technical services or income chargeable to tax in India; (c)at any rate, since the situs of the services was outside India, no part of the payment be held as deemed to accrue or arise in India; (d)without prejudice, the payments made be bifurcated to ascertain the profit element and only the appropriate portion be held as income chargeable to tax in India; and (e)interest levied under section 201(1A) be deleted. Similarly, the assessee-company has raised three identical grounds in ITA Nos. 676, 677, 678 and 679/B/09. On a close scrutiny of these grounds, we find that the ground No. 1 being general and not specific, it does not survive for adjudication. In the remaining two grounds, the crux of the issue is that- 'the orders passed under section 201(1A) be quashed or in the alternative; 'interest levied under section 201(1A) be deleted'.'" 3. As the issues raised in these appeals are more or less identical and rather inter-linked, for the sake of convenience and clarity, these appeals are taken up for consideration together and disposed off in this common order. 4. The brief history of the case is that the assessee-company is an Indian Company engaged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certificates issued were not in accordance with law. In conclusion, the Assessing Officer had stated that- "as on the dates of crediting the amounts, the payee had the right to receive them and, hence, the income had accrued to the payees. Further, there was no certificate on these dates, authorizing payment/credit without deduction of tax and, hence, the payer was required to deduct tax under section 195 of the Act: (a)the amounts in question are not reimbursement of expenses as claimed by the payer and they were the consideration payable for the services rendered the payee; (b)in terms of the Article 12 of the DTAA, the FTS are taxable on gross sums and, hence, no payments can be categorized as re-imbursements to exempt them from the purview of taxation; (c)the payee has made available the technical knowledge, experience, skill, know-how, or processes, to the payer and, hence, the payments fall into the category of FTS; (d)Since the payments in question are FTS, the payer was required to deduct tax in terms of provisions of section 195(1). As the payer has failed to deduct tax, it is hereby order as an assessee in default in terms of provisions of section 201(1). It is liabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a/c is tantamount to crediting the party's account and whether income accrued to the non-resident on that very date, the CIT(A) was of the view that a certificate issued under section 197 cannot cover payments/credits made prior to the date of issue of such certificate. Drawing support from the CBDT's Circular No. 774, dated 17-3-1999, she concluded that the certificate under section 197 issued in this regard cannot apply to credits made prior to the dates of issue of certificates; (iv)With regard to the assessee-company's claim that the Assessing Officer erred in concluding that the services rendered by LLAH, Singapore were in the nature of managerial, technical & consultancy services so as to fall under the category of 'fees for technical services' [FTS] as defined in Article 12(4) of the DTAA between India and Singapore and, therefore, liable for TDS under section 195 and that LLAH, Singapore had made available technical knowledge, skill, know-how or process to the assessee, the CIT(A) after extensively quoting the Article 1 of the MSA and in comparison with the DTAA between India and USA titled "Royalties and fees for included services", etc., and also keeping in view the pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the provisions of sections 195(2), 195(3) and 197 which safeguard the interest of both the payer and the payee; (vii)The assessee-company's denial of its liability to pay interest under section 201(1A), the CIT(A) was of the view that if any person does not deduct the whole or part of the tax, he is liable to pay simple interest at the relevant rate on the amount of such tax from the date on which such tax was deductible to the date on which such tax was actually paid. Extensively quoting various decisions, notably, in the cases of (i) Bennet Coleman & Co. Ltd. v. CIT 157 ITR 812 (Bom.); (ii) CIT v. Dhanalakshmy Weaving Works 245 ITR 13 (Ker.), she held that the payment of interest under section 201(1A) is consequential, mandatory and automatic and no 'reasonable cause' is required to be established." Taking above view, the ld. CIT(A) had virtually dismissed the contentions of the assessee-company and upheld the action of the Assessing Officer for the assessment years under dispute. 7. Agitated over the finding of the CIT(A) referred supra, the assessee-company has come up with the present appeals. 8. During the course of hearing, the ld. A.R. had furnished voluminous paper B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Rules have been framed under either section as to how and when such applications could be made. 11. The obligation upon the payer to deduct tax at source is generally associated with event of the credit of the sums to the account of the payee or the payment thereof, whichever happens earlier. There is, however, no such time stipulation for the payee to make an application for receipt of sums without tax deduction. In terms of timing, therefore, these two provisions do not have a uniform import. In other words, there are two provisions having varying import. However, neither of the provisions stand on a superior pedestal as compared to the other. One provision is not subject to the other. When two provisions are of equal strength, neither can be ignored. - CIT v. Associated Electrical Agencies [2007] 295 ITR 496 (Mad.). 12. In view of the above, to say that the provisions of section 195(2) shall prevail and override the provisions of section 197(1) would not be a correct statement of law. There is no prioritization between the two. One is not subject to the other. Both the provisions would, therefore, have to be given effect to. Their object is to enable the recovery of tax whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said section justifies lower or nil deduction of tax at source. 16. The said certificate was never cancelled at any point of time. Section 197(2) states that the certificate shall have validity for the financial year mentioned therein. Certain payments were made during the validity of the certificate. The action of the appellant was, thus, in compliance of the directions issued through the certificate in Form No. 15AA issued by the Assessing Officer. The payment having been made in accordance with the certificate in force, there should be no occasion to warrant a conclusion that the appellant was in default in terms of section 201. For the pending (but renewed) application, in view of the fact that there were no change in the facts and circumstances, that for similar payments a certificate had been granted earlier and for the unpaid amounts also, a certificate for NIL withholding had been granted, there was no occasion or need not to issue the NIL certificates. 17. The aspect of "credit" of a sum to the account of the payee or any other account inviting or mandating the deduction of tax at source is not to be regarded as having an all pervasive effect. For example, an applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the date of credit. There is no such requirement under section 197. A certificate obtained after the date of credit but in accordance with the mandate of the provisions of law should consequently be regarded as valid, effective and binding. The directions under the certificate would, therefore, ensure to the benefit of both the payer as well as the payee. As a result, the certificate obtained under section 197(1) would continue to govern the transaction and the payments should be made in accordance with the mandate of the certificate. 20. This matter could be viewed from another angle also. A declaration under section 197A in Form No. 15G or 15H enabling the receipt of interest or other sums without deduction of tax at source could be filed by the payee at any time before the expiry of the relevant year and before the receipt of the payment of interest. It is possible in meanwhile that the payer concerned has passed periodic entries (monthly or quarterly) crediting the amount of interest. In such circumstances, it cannot be stated that the eventuality of "credit" having been completed, Form No. 15G or 15H would be of no avail. On the contrary, declaration of Form No. 15G or 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtificate. An order generally issued would continue to have affect till it is withdrawn or cancelled by a process known to law [observations in CIT v. Ramachandra Hatcheries [2008] 305 ITR 117 (Mad.)]. An order, whether wrong, right or incomplete is a valid and effective order unless quashed or upset by the competent authority. This was the view held in many decisions, a compilation of which is separately attached. 24. If the obligations have been performed in accordance with the mandate thereunder, no fault can be found with the assessee even if the order is wrong. The department cannot take advantage of its own wrong. It has been so held in many decisions, a compilation of which is separately attached. 25. In the context of section 40A(2), in para 75 of Circular No. 6P, dated 6-7-1968, the Board has clarified as follows: ". . .that where the scale of the remuneration of the director of the company had been approved by the Company Law Administration, there was no question of the disallowance of any part thereof in the income-tax assessment of the company on the ground that the remuneration was unreasonable or excessive." [Emphasis supplied] Even as per the Board, therefore, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reproduction of the Assessing Officer's order. The order of the CIT(A), thus, suffers from a non-application of mind as also the vice of ignoring material particulars. The same being bad-in-law is liable to be quashed. 30. As per section 201 of the Act, a person is deemed to be an 'assessee-in-default', if he is required to deduct tax at source in accordance with the provisions of the Act, and does not deduct, or does not pay, or after so deducting fails to pay, the whole or any part of the tax, as required by or under this Act. The pre-condition for the applicability and/or operation of section 201 is that the assessee is required to deduct tax at source in accordance with the provisions of the Act. 31. As per section 197(2), the person responsible for paying the income shall deduct income-tax at the rates specified in certificate or deduct no tax, as the case may be, until such certificate is cancelled by the Assessing Officer. The usage of the term 'shall' would mandate and leave no option for the payer but to act, in terms of the certificate issued under sub-section (1). As a result, till such certificate issued under sub-section (1) is cancelled, the payer would not be statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued in controvertion of the instructions would be invalid. It is only states that the Assessing Officer has to be vigilant. 37. Even otherwise, the law recognizes the possibility of a delayed application. Where the validity of the earlier certificate expires; the assessee may make another application. The second application for a fresh certificate may be make after the expiry of the earlier certificate (refer Rule 28AB). On the date of the second certificate, the credit entry to the account of the payee would have already have been made. The law nevertheless visualizes and postulates a fresh application. 38. This means that :- (i)a certificate issued after the accounting entry would be valid and binding; (ii)the credit to the account of the payee should not always be regarded as mandatorily leading to a tax deduction. Also, there is no dispute regarding payments having been made after obtaining the certificates under section 197. Thus, the conditions for invoking the amendment to section 195 were not satisfied in the present case. 39. Even otherwise, Circulars not beneficial are not binding on an assessee. They cannot affect an assessee in an adverse manner - UCO Bank v. CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ific projects were charged to the recipient of the services. The basis was the time involved and the cost of the services based upon such time. u All other costs are apportioned between the recipients of the services on the basis of a formula based on either the labour hours or the relevant expenses involved. The invoices (called as tax invoice and carrying the description of debit note) were raised periodically. The details of the employees who rendered the services, the function under which the same were provided, the time devoted, the cost of the employee whose time was involved and the manner of allocation of the overheads were submitted. The manner of determining the cost as also the allocation of overheads was certified by a firm of independent auditors who have also confirmed that the same is bereft of a profit element. In other words, the payments to LLAH were pure reimbursement of costs. 43. The lower authorities have held that the appellant has not established that the payments were bereft of profit element. The appellant furnished all the details required by the lower authorities. The basis of computation of recovery of costs was also furnished. The recovery of costs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he benefit of all the group concerns including the assessee-company which did not attract any deduction of tax and there was no question of making any disallowance by invoking the provisions of section 40(a)( iii) for non-deduction of tax from such reimbursement." 49. The Bangalore Bench of ITAT in Bangalore International Airport Ltd. v. ITO (International Taxation) [2009] 116 ITD 446 held that reimbursement of costs to foreign company would not be subjected to deduction of tax at source under section 195 of the Act. 50. In view of the above, there was no requirement to deduct tax at source in respect of the payments made to LLAH. The reliance by the lower authorities on the decisions of the Andhra Pradesh High Court and of the Supreme Court in the Transmission Corse Corporation's case is misplaced. 51. Even otherwise, as an application was made and the requisite details furnished, the lower authorities could have examined the facts of the case and limited the direction of the withholding tax to the appropriate amount of income only. Payments to LLAH not chargeable under the DTAA between India - Singapore 52. In respect of persons to whom the Double Taxation Avoidance Agreemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay requires technical input by the person providing the service does not per se mean that technical knowledge, skills, etc., are made available to the person purchasing the service, within the meaning of paragraph 4(b). Similarly, the use of a product which embodies technology shall not per se be considered to make the technology available." [Emphasis supplied] 56. The DTAA with Singapore uses expressions that narrow the meaning than that conveyed in the India-USA DTAA. The DTAA with Singapore no doubt includes managerial services apart from technical and consultancy services which two terms are what the India-USA DTAA is limited to. However, all the three category of services should make available techno-logy. The "make available" concept as embodied in clauses 'b' as well as 'c' of the definition of fees for technical services - something that the DTAA with USA also does not incorporate. To that extent, the definition under the India-Singapore DTAA is narrower. 57.The term "make available" has a distinct meaning under the Treaty. It postulates a concept wherein the recipient of the services is not only benefited by the services but there is also a transfer of the technology, pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tilizing the services; (v)The fruits of the services should remain available to the person utilizing the services in some concrete shape such as technical knowledge, experience, skills, etc. 61. The Treaty warrants technology to be the underlying characteristic of the transaction for the payment to be classified as fees for technical services. The initial part of the definition no doubt refers to managerial, technical or consultancy services. Nevertheless the aspect of making available technology in the definition means that the broad classification of services would have to fulfil additional conditions to be regarded fees for technical services. The underlying services should pertain to a techno-logy. It should enable the other to acquire and apply the technology. Mere use of the said services is not sufficient. The Treaty does not refer to a recipient of services. It refers to a person who has acquired to the technology. Technology is said to be acquired when the recipient is enabled to apply the said technology in his business without recourse to the provider of the services. Thus, consultancy services which are not of a technical nature cannot be classified as 'fees for techn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Pte. Ltd., In re [2008] 305 ITR 208 (AAR - New Delhi); u Mahindra & Mahindra Ltd. v. Dy. CIT [2009] 30 SOT 374 (Mum.) (SB). 66. In the present case, the services rendered by LLAH were not in the nature of technical services. LLAH was rendering services in relation to certain administrative, financial, personnel, legal, marketing, insurance support matters. These services did not 'make available' any technical knowledge, experience, skill, know-how or processes to the appellant. These services did not involve the transfer of any technical plan or technical design to the appellant. The services did not, therefore, constitute "fees for technical services" and, hence, were outside Article 12 of the Treaty. 67. The lower authorities have concluded that since the employees of the appellant were trained by LLAH, the underlying payment tantamounted to making available technical knowledge, etc. The payments, in the instant case, were not towards training, although training was one of the areas/subjects mentioned in the MSA. The conclusions of the lower authorities are, therefore, incorrect. 68. Even otherwise, training per se, would not result in make available of technology, ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing available' of technical knowledge, etc., to the appellant. No evidence/material has been produced to demonstrate the same. Thus, there is no merit in the contention of the lower authorities that there was 'making available' of technical knowledge, etc. In view of all the above, the payments made under the MSA did not make available any technical knowledge, experience, skill, know-how or processes to the appellant. The payment was, therefore, outside the scope of 'fees for technical services' under Article 12 of the DTAA between India - Singapore. They were not taxable in India under any other article of the Treaty. There was, therefore, no obligation to withhold tax at source. 73.On the other hand, the learned DR supported the orders of the authorities below. It was submitted that the order of the learned CIT(A) itself is explanatory. In respect of issue raised by the learned AR, the learned DR submitted that all these issues have been considered by the learned CIT(A) and reliance was placed on the finding of the learned CIT(A). 74. To drive home her point, the ld. DR has placed strong reliance on the following case laws :- (a) Karnataka Urban Infrastructure Development Fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 of the Income-tax Act so as to enable the appellant to make the payment without deduction of tax at source. The concerned party issued certificate under section 197 and the payments were remitted. However, the Assessing Officer, International Taxation, initiated proceedings under section 201(1) and 201(1A) of the Income-tax Act. The stand of the revenue is that the certificates issued were not valid and were not applicable in case the tax was required to be deducted at source on a date prior to the date of issue of certificates. In respect of the payments made, the details in respect of the date of invoices and date of application under section 197, etc., are as under :- ITA No. 636, assessment year 2003-04, order dated 29-12-2006 by the Assessing Officer Date of Invoice Date of Application u/s 197 Date on which Certificate u/s 197 was issued 1. 1-8-2002 19-5-2003 10-6-2003 2. 14-10-2002 17-6-2004 15-7-2004 ITA No. 637, assessment year 2005-06, order dated 31-8-2006 by the Assessing Officer Date of Invoice Date of Application u/s 197 Date on which Certificate u/s 197 was issued 1. 19-5-2004 8-8-2005 19-9-2005 ITA No. 665, assessment year 2004-05, order dated 31- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as an agent. In order to collect the tax on income of the non-resident, who is having no presence in India, TDS is only and effective source of collecting such tax. Section 40A(i) stated that no deduction of expenditure is allowable in case the tax at source is not deducted in respect of royalty and fee for technical services and interest. Such provision was made to ensure effective compliance of the provisions of section 195 of the Act relating to TDS in respect of payments outside India. This has been clarified vide Circular No. 528, dated 16-12-1988. In the instant case, as we had already pointed out, M/s. LLAH was having no permanent establishment in India and, therefore, TDS was the effective source of collecting tax in respect of income, which has accrued to M/s. LLAH. 78. The appellant has not deducted tax at source at the time of crediting the account under the head 'Outstanding expenses a/c'. However, before making remittance of the payment, the assessee filed an application under section 197 of the Income-tax Act. We had already reproduced the dates on which such applications were made. Copies of such applications are available in the paper book filed by the learned AR o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edited. It was contended before the Hon'ble High Court by the revenue that this was being done erroneously and in violation of the express provisions of law. After noticing the argument of the revenue, the Hon'ble High Court held as under:- "Held, that assuming that the grant of certificates under section 197 on applications made after the amount of interest was credited was in violation of the express provisions of law, since the certificates had been issued in almost all cases, there would be a class of people, who having applied for the certificate after credit of interest, were under a bona fide belief that such practice had come to stay. The CBDT was to consider how the practice developed, and if it was not permissible, issue appropriate guidelines." 80. The CBDT issued Circular No. 774, dated 17-3-1999 [236 ITR 250 (St.)] in which it was noticed by the Board in certain charges, a practice has developed to issue certificate under section 197(1) of the Act even after the credit or payment of amounts subject to tax deduction at source. According to the Board, this practice is not in accordance with the provisions of law. The Board clarified that no certificate under section 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer concerned who issued the certificate cannot be considered to be totally un-connected with the administration of the Income-tax Act. Therefore, the Hon'ble High Court held that the impugned order of withdrawal of certificate will have prospective effect. 83. In the instant case, the revenue has taken no steps to cancel such certificate. If the revenue has taken the proceedings for cancellation of the certificate on the ground that application was made belatedly then the assessee would have got a chance to apply to the Board for condonation of delay. 84. The Hon'ble Calcutta High Court in the case of Nav Bharat Vanijya Ltd. v. CIT [1997] 226 ITR 537 1 had an occasion to consider the authority of the Assessing Officer in changing the ratio as determined in the certificate under section 197(3) on the ground that the assessments of the company happened to fall within his jurisdiction was completed. Section 197(3) provided exemption of income in the hands of shareholders of a portion of the dividend attributable to profits for which deduction is allowable under section 80K to the company. Since the issue of computation of deduction under section 80K in the case of the company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neous determination by ITO. The above decision of the Hon'ble Rajasthan High Court has been upheld by the Apex Court in Jaipur Udyog Ltd.'s case (supra). Thus, it is a settled position of law that nobody can take advantage of the wrong committed by it. In case the revenue has issued certificate under section 197 and the assessee-company has acted on such certificate and has not deducted tax at source, then the revenue subsequently cannot declare the assessee as an assessee in default under section 201 of the Income-tax Act. Hence, it is held that the assessee could not have been declared the assessee as an assessee in default under section 201(1) in view of the fact that the assessee acted on the certificates and such certificates have not been cancelled before the Assessing Officer took the proceedings under section 201(1). 88. During the course of proceedings before us, the learned AR has raised a plea that provisions of sections 195(3) and 197 stand on the same pedestal. Section 195(3) is subject to rule 29B. As per rule 29B, provisions of section 195(3) can be applied in case person concerned is a banking company or a person who carried on business or profession in India throu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) for the assessment years 2003-04 and 2004-05. It is true that the assessment for the assessment year 2003-04 was completed before the proceedings under section 201 were initiated. However, the assessment for the assessment year 2004-05 has been completed after the initiation of proceedings under section 201. The time-limit for taking action under section 263 of the Income-tax Act for the assessment years 2003-04 and 2004-05 stands already expired. Thus, the Assessing Officer, who has completed the assessment has held that no tax was required to be deducted in respect of the payments made to M/s. LLAH. Thus, the revenue while completing the assessment has recorded the finding that no tax was required to be deducted under section 195 of the Income-tax Act. Even no transfer pricing adjustment has been made though the assessee has disclosed in the annexure attached with the return that it is making reimbursement of costs. It means that the left hand does not know what the right hand is doing and the revenue in assessment proceedings has accepted that no tax was required to be deducted at source and such orders have become final except for the assessment year 2005-06. On this ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; u CIT v. Industrial Engineering Projects (P.) Ltd. [1993] 202 ITR 1014 (Delhi); u Clifford Chance, United Kingdom v. Dy. CIT [2002] 82 ITD 106 (Mum.); u Raymond Ltd.'s case (supra); u Dunlop Rubber Co. Ltd.'s case (supra); u HNS India VSAT Inc. v. Dy. DIT [2005] 95 ITD 157 (Delhi); u Gujarat Ambuja Cements Ltd.'s case (supra); u Maharashtra State Electricity Board v. Dy. CIT [2004] 90 ITD 793 (Mum.); u Saipem S.P.A. v. Dy. CIT [2004] 88 ITD 213 (Delhi) (TM); u Sedco Forex International Drilling Inc. v. Dy. CIT [2000] 72 ITD 415 (Delhi); u PILCOM v. ITO [2001] 77 ITD 218 (Cal.); u DECTA v. CIT [1999] 237 ITR 190 2 (AAR - New Delhi); u Coca-Cola India Inc. v. Addl. CIT [2006] 7 SOT 224 (Delhi); u United Hotels Ltd. v. ITO [2005] 2 SOT 267 (Delhi); u ITO v. Dr. Willmar Schwabe India (P.) Ltd. [2005] 3 SOT 71 (Delhi); u Expeditors International India (P.) Ltd.'s case (supra ); u Bangalore International Airport Ltd.'s case (supra ). 93. The learned CIT(A) has considered the submissions but held that the payments are not to be treated as reimbursement. The findings of the learned CIT(A) are as under :- "4.2 In this connection, it is pertinent to note that the meaning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis for exemption of 1920 hrs. per employee was not furnished as the same was taken by the auditor to justify that the payments were made to reimburse the costs. The learned CIT(A) has relied on the following judgments to say that section 195 is not applicable because it is alleged that it is a case of pure reimbursement:- u CIT v. Superintending Engineer [1985] 152 ITR 753 (AP); u Transmission Corpn. of A.P. Ltd.'s case (supra); u Timken India Ltd., In re [2005] 273 ITR 67 (AAR - New Delhi); u Danfoss Industries (P.) Ltd., In re [2004] 268 ITR 1 (AAR - New Delhi). 95. The agreement provides the basis for ascertaining the amounts to be paid to M/s. LLAH. In case the payments are held as fee for technical services then income in the hands of recipient is to be taxed as per provisions of section 115A of the Income-tax Act. The rate of tax is a percentage of fees for technical services. Hence, if payments are for the technical services then computation of such fees with reference to cost becomes not relevant as one has to ascertain the income in the hands of recipient because income by way of fee for technical services is the amount payable. Under such cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made available to the assessee so as to be covered within its scope and mere providing of such services without making them available to the assessee will not serve the purpose and, hence, will be outside the ambit of article. The assessee has ab initio contended before the authorities below that even if the services rendered by the lead managers were held to be technical services but those were not 'made available' to the assessee. "Rendering of any technical or consultancy services" is followed by "which make available technical knowledge, experience, skill, know-how". In this context, it becomes imperative to understand the meaning of the expression 'make available' as used in this article. Make available means to provide something to one, which is capable of use by the other. Such use may be for once only or on a continuous basis. In our context to make available the technical services means that such technical information or advice is transmitted by the non-resident to the assessee, which remains at its disposal for taking the benefit therefrom by use. Even the use of such technical services by the recipient for once only will satisfy the test of making available the technica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred to above, we hold that the interpretation of the words 'make available' as given in MoU between India and USA Treaty can be applied in the instant case. 101. Hence, in the instant case, we have to see as to whether the requirement of 'make available' is satisfied in this case. The appellant is receiving various services. In respect of assistance in the operation of the business, it has been made clear that LLAH will provide education and training including the training material for the staff of the appellant-company on or offshore. In respect of majority of services, it has been mentioned that it will provide assistance. Thus, LLAH is providing assistance for various services and as per the agreement, it has to provide education and training to the employees of the appellant-company. The words 'make available' only refer to the willingness of the provider of the services and does not refer the acceptance of the receiver of the services. 102. The dictionary meaning of assistance is to help or support. It does not mean to provide. When one is going to help or support then he is making the other person to do the same in future. The word 'Assistance' is defined in Law Lexicon b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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