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TMI Blog2019 (10) TMI 1568X X X X Extracts X X X X X X X X Extracts X X X X ..... gory management is missing in definition of FIS and services provided by the appellant being in nature of management services do not fall in definition of FIS - HELD THAT:- As documents furnished by the appellant indicating nature of services provided by the appellant. The services provided in present case mostly resemble with those in case of Ernest Young (P) Ltd [ 2010 (3) TMI 108 - AUTHORITY FOR ADVANCE RULINGS] . It appears that most of the services are in nature of management services, though some of the services may be considered to be of technical nature. However, from terms of the service agreement and also from conduct of the parties, it cannot be said that make available requirement has been satisfied. AO has not elaborat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in India. 2. That in any case the AO/DRP completely failed to appreciate that the reimbursements made to the Appellant did not have any element of income contained therein and hence were not liable to be taxed. 3. The AO/DRP have erred in law and on the facts of the case in not appreciating that common services do not fall within the ambit of Article 12(4)(b) of DTAA between India and US read with Memorandum of Understanding thereto specifically in the absence of non-satisfaction of the make available condition as contained in Article 12(4)(b) of the DTAA, such reimbursements could not partake the character of FIS under the DTAA. 4. The AO/DRP have also erred in law and on the facts of the case by drawing adverse inference from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee has offered an amount of Rs. 925,564/- to tax which pertains to the amount received on account of Information Management (IM). The other services provided by the assessee are in the areas of Finance: It includes month-end and quarter end closing, standardizing processes, planning and facilitating entity reduction projects, consolidating budgets, driving and managing global systems roll out and maintenance; transfer pricing planning, compliance and documentation, effective rate management, compliance with FAS 109 (which is the financial reporting requirement of tax department). SABIC IP India is providing coordinated support to the group s external auditors and implementing various project such as IFRS conversion, Project Leopard and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turing plastics. Information Management (offered to tax) 4. The Assessing Officer held that the payment for technical or consultancy services would fall within the scope of definition of FTS under the Indo-US treaty only if such services make available any technical knowledge, skill, know-how etc. to the recipient of service or it consists of development and transfer of technical plan or design. He held that make available means the person acquiring the service is enabled to independently apply the technology and held that these services are taxable under FTS/royalties. 5. Before us during the arguments, the ld. AR brought to our notice the order of the ld. CIT (A) for the assessment year 2008-09 in the assessee s own case wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, from terms of the service agreement and also from conduct of the parties, it cannot be said that make available requirement has been satisfied. The Assessing Officer has not elaborated on this aspect. As per provisions of Article 12(4) of DTAA, unless make available clause is satisfied, consideration for any consultancy or technical service per se shall not become FTS/FIS. 8. Similarly, in the assessee s own case for the assessment year 2010-11, the ld. DRP has deleted the similar addition made by the Assessing Officer. On this issue, the DRP held as under: From scope of services as mentioned in Management Service Agreement dated 01.09.2007, it can be seen that there is no intention on part of agreeing parties of making ..... X X X X Extracts X X X X X X X X Extracts X X X X
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