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TMI Blog2024 (3) TMI 1066X X X X Extracts X X X X X X X X Extracts X X X X ..... dly, we observe that the Hon ble Supreme Court in the case of Engineering Analysis Centre of Excellence Private Limited [ 2021 (3) TMI 138 - SUPREME COURT] has effectively overturned all the decisions, on which reliance was placed by the tax authorities to hold that the payments qualify as royalty. Tribunal in the case of mirror transaction, while dealing with the issue of non-deduction of tax at source with respect to the aforesaid payments made by the Indian group companies to the assessee, held that since the payments qualify as royalty under the Act, read with the Tax Treaty, and therefore, held that the Indian companies were not liable to deduct tax at source on such payments under Section 195 of the Act We are of the considered view that payments for providing HR Shell People Support Services do not qualify as Royalty under the Act, read with the Treaty - ground number 1 of the assessee s appeal is allowed. CHR Recruitment Fees, External Information Services (license for online databases) and IT Migration Support Services qualify as fee for technical services u/s 9(1)(vii) of the Act read with Article 12 of Tax Treaty - Scope of make available clause - HELD THAT:- Given the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the nature of services, we observe that neither has technology be made available to the recipient of services, nor there is any such intention to render services in a manner that the recipient of services is enabled to perform the services itself without recourse to the assessee. Accordingly, we are of the considered view that the services have not made available technology to the recipient of services, so as to fall within the definition of FTS under the India-Netherlands tax treaty. Levy of interest u/s 234B in respect of non- residents - HELD THAT:- As in light of the aforesaid decision by the Hon ble Supreme Court in Mitsubishi Corporation [ 2021 (9) TMI 875 - SUPREME COURT] Ground No. 7 of the assessee s appeal is allowed. We must also add that recently, in the case of Shell Global Solutions International BV [ 2023 (10) TMI 1286 - GUJARAT HIGH COURT] held that where during relevant Assessment Year assessee was a non-resident, entire tax was liable to be deducted at source on payment made by payer to the assessee u/s 195 and there was no question of advance tax payment by assessee and thus, no interest under Section 234B could be levied upon assessee. Payment received from aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ands tax treaty. Levy of surcharge and cess over and above the taxable rate of 10% on royalty and FTS is not permissible as per the Treaty provisions. - Smt. Annapurna Gupta, Accountant Member And Shri Siddhartha Nautiyal, Judicial Member For the Appellant : Shri S. N. Soparkar, Sr. Advocate, Shri Parin Shah, Shri Ankit Gandhi Ms. Dhruvi Salot, A.Rs. For the Respondent : Dr. Darsi Suman Ratnam, CIT D.R. ORDER PER SIDDHARTHA NAUTIYAL, JM: These appeals have been filed by the Assessee against the orders passed by the Deputy Commissioner of Income Tax (International Taxation-I), Ahmedabad and Assistant Commissioner of Income Tax (International Taxation-1), Ahmedabad, Assistant Commissioner of Income Tax (International Taxation-2), Ahmedabad vide orders dated 05.10.2017, 03.10.2018, 17.11.2016, 05.10.2017, 19.09.2019, 11.09.2019, 29.09.2020 24.02.2022 passed for the Assessment Years 2009-10 to 2018-19. There are various Assessment Years before us for our consideration, however, since there are common facts and issues for consideration for all the impugned Assessment Years, all the appeals filed by the assessee are being taken up together. 2. We shall first take up Assessment Year 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw, void ab initio and liable to be quashed. 2. The learned AO based on the directions of the DRP has erred on the facts and in law in treating the aggregate cost recovery of Rs. 7,15,01,526 received from Hazira LNG Private Limited ( HLPL ), Hazira Port Private Limited ( HPPL ), Shell India Markets Private Limited ( SIMPL ), and Shell Technology India Private Limited (merged with SIMPL) ( STIPL ) for HR Shell People Support as royalty under Section 9(1)(vi) of the Act and Article 12 of India Netherlands tax treaty ( Tax Treaty ). 3. The learned AO based on the directions of the DRP has erred on the facts and in law in treating the cost recovery of Rs. 1,83,16,548 received from STIPL for CHR recruitment fee as fees for technical services under Section 9(1)(vii) of the Act and Article 12 of the Tax Treaty. 4. The learned AO based on the directions of the DRP has erred on the facts and in law in treating the cost recovery of Rs. 30,50,296 received from SIMPL for IT migration support as fees for technical services under Section 9(1)(vii) of the Act and Article 12 of Tax Treaty. 5. Without prejudice to the above mentioned grounds, the learned AO based on the directions of the DRP has er ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd meeting/decision or any communication from the Indian associated enterprises, which show that any decision was taken to avail the services from the assessee company, by the Indian subsidiaries. Accordingly, the AO held that the above services qualify as royalty under the Act, read with the Tax Treaty. 6. The DRP confirmed the order of the Assessing Officer. The DRP observed that for assessment in 2014-15, the facts of the assessee with respect to the aforesaid services, along with additional evidences which were filed by the assessee, were analyzed in detail. Since the facts and issues for consideration are identical for the impugned Assessment Year as those for Assessment Year 2014-15, and there was no material change in facts, the DRP confirmed the findings of the Assessing Officer. 7. The assessee is in appeal before us against the aforesaid order, holding the Shell HR services as royalty under the Act, read with Tax Treaty. 8. Before us, the Counsel for the assessee submitted that firstly, the fact that services have been rendered by the assessee to its group companies in India, has not been disputed at any stage the proceedings. Even though, the LSA along with the addendum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... place, so as to have a complete understanding of the services rendered by the assessee to its group companies in India. The assessee has placed reliance on an addendum, which was signed in the year 2016, and there was no valid agreement in place for the impugned year under consideration. Accordingly, when the nature of services itself is not very clear, assessee cannot place reliance on the Tax Treaty provisions and also on the decision of Hon ble Supreme Court in the case of Engineering Analysis Centre of Excellence (P.) Ltd. supra . 13. Secondly, it was argued that the services were provided through the medium of Intranet, and as held by the Assessing Officer, in the assessment order, the services pertained to use of Shell HR software and therefore, the services are taxable as royalty under the Act read with the tax treaty. Accordingly, DR placed reliance on the observations made by the Assessing Officer/DRP in their respective orders. 14. We have heard the rival contentions and perused the material on record. 15. First, before deciding the issue, it would be useful to briefly discuss the nature of services rendered by the assessee. From the documents placed on record, we observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the Tax Treaty, and therefore, by placing reliance on the decision of Hon'ble Supreme Court, ITAT held that the Indian companies were not liable to deduct tax at source on such payments under Section 195 of the Act. In the case of Shell India Markets Private Limited v. ITO I.T.A. Nos. 6064, 6065, 6066 and 6067/Mum/2019 (Assessment Years : 2009-10 to 2012-13) , the Tribunal made the following observations: Upon careful consideration, we find that assessee s plea that issue is squarely covered in favour of the assessee by the decision of Hon ble Supreme Court in the case of Engineering Analysis Centre of Excellence Private Limited v. CIT (supra) is acceptable. The Hon ble Supreme Court has elaborately examined the issue and has decided the issue in favour of the assessee. The Hon ble Supreme Court has set aside the decision of Hon ble Karnataka High Court in the case of Samsung Electronics Company Ltd. (supra), which has been relied upon by the AO. We may gainfully refer to the concluding portion of Hon ble Apex Court order in that case as under:- Given the definition of royalties contained in Article 12 of the DTAAs mentioned in paragraph 41 of this judgment, it is clear t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We shall first briefly discuss the nature of services performed by the assessee and the Assessing Officer s position with respect to each of the respective services. Since largely common arguments have been taken by the Counsel for the assessee and DR with respect to the aforesaid services, therefore, all the three grounds of appeal raised by the assessee are taken up together. CHR recruitment services 20. Under the CHR recruitment services, the assessee manages the global recruitment and attraction team of Shell group. This team supports the regional recruitment team in the regular recruitment process apart from group related activities such as laying path to talent acquisition and presenting Shell as an attractive place. The cost incurred by the global recruitment team is shared across various shell entities, which have availed the services of the recruitment team. The said receipts towards recruiting candidates for respective Shell entities and the cost charge out is based on the actual number of recruitments made. 21. The Assessing Officer was of the view that the services qualify as fee for technical services since under the CHR recruitment service, the expertise and experien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iates in providing standard research reports, newsletters and market data analysis. The costs incurred by the assessee company are shared across various Shell entities which have availed such information. Thus, the critical decision-making function has been performed by the affiliates through the assistance/consultancy of the assessee. Hence, it is established that identifiable and highly specialized services, requiring expertise and industrial experience have been provided by the assessee. IT migration services: 24. Under these services, the assessee has set up a shared services Centre to provide a shared services to Shell group. The services pertaining to guidance/support provided by the assessee in setting up IT infrastructure of the shared services centers. Also, IT services in relation to migration of certain operations from other similar centers over the globe to Indian Centre have also been provided by the assessee. Based on the time spent by the assessee s personnel assisting SIMPL in setting up its IT hardware system, the assessee has recharged the cost incurred. 25. The Ld. Assessing Officer was of the view that under the Shell intercom charges, the expertise and experien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der has been selected since it is capable of delivering such services which require resources, knowhow and expertise. Thus, the services are highly specialized services requiring expertise and skill. According to the Ld. Assessing Officer, a perusal of the services makes it obvious that the assessee provides highly technical services which are used by the affiliates of the assessee for taking important and strategic decisions. 27. The Ld. Assessing Officer further relied on the case of GVK Industries Ltd. v. ITO 54taxmann.com 347 (SC) , where the assessee-company was incorporated for the purpose of setting up a 235 MW gas based power project. With the intention to utilize the expert services of qualified and experienced professionals who could prepare a scheme for raising the required finance and tie-up the required loan, assessee sought services of a consultant and eventually entered into an agreement with NRC, a Switzerland based company. The Hon'ble Supreme Court held that payment made to Swiss company for rendering such consultancy services amounted to 'fee for technical service' liable to tax in India. The Hon'ble SC observed that as the factual matrix in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Fourthly, it was argued that these services qualify as managerial services and since the definition of fee for technical services under the India-Netherlands tax treaty does not contain the term managerial services , therefore, the services fall outside the ambit/scope of fee for technical services under the India--Netherlands Tax Treaty and hence cannot be subject to tax in India. 29. In response, DR placed reliance on the observations made by the Assessing Officer/DRP in respect of the aforesaid services. The DR submitted that in the instant facts, the services are clearly technical in nature, under the Indian domestic taxation laws as well as under the tax treaty law. The DR submitted that in the instant facts, clearly, technology has been made available to the recipient of services, and since both these service provider recipients are working closely with each other over a period of time, there is a transmission of knowledge during the course of rendering the aforesaid services. Further, the argument of the Counsel for the assessee that the services qualify as managerial services is also flawed, since looking into the nature of services these are primarily technical/consultan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we observe that looking into the nature of services, these services are in the nature of technical/consultancy services, and in our considered view, the same do not qualify as managerial services, so as to take the services away from the ambit of fee for technical services. We observe that on analysis of various services which have been provided in later assessment years, the same also, going by the nature of services, do not qualify as managerial services . 32. Secondly, with regard to the arguments that the services are not liable to be taxed in India since only costs incurred in rendering the services have been recovered and in absence of any income element, the services are not taxable in India as FTS/royalty, as discussed and analysed even during the course of arguments, we observe that it is not a case where there is a clear case of cost to cost reimbursement with respect to only costs having been recovered from the respective associated enterprises, which have been incurred by the assessee in rendering the services. In the instant case, though the assessee submitted/contended that while charging for the services rendered, the assessee has only recovered the cost incurred in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al and consultancy services. What is meant by the expression 'technical'? Should it be confined only to technology relating to engineering, manufacturing or other applied sciences ? We do not think so. The expression 'technical' ought not to be construed in a narrow sense. It has received a wide interpretation in tune with its dictionary meaning in several cases. In Continental Construction Ltd. v. CIT [1992] 195 ITR 81 the Supreme Court observed that the expression 'technical services' has a very broad connotation and it has been used elsewhere in the Statute also so widely as to comprehend professional services : vide Section 9(1) (vii) . The relevant meanings of the word 'technical' given in the New Shorter Oxford Dictionary (Thumb Index Edition) are 1. Of a person : having knowledge of or expertise in a particular art, science, or other subject. 2. pertaining to, involving, or characteristic of a particular art, science, profession, or occupation, or the applied arts and sciences generally. In CBDT v. Oberoi Hotels India (P.) Ltd. [1998] 97 Taxman 453, the Supreme Court reiterated the view that the term 'technical services' included profe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the necessary information/knowledge has been imparted to the recipient of services in such manner, so that in the future, they have been enabled/ empowered to perform the services themselves, without any necessity of recourse to future services being provided by the assessee. It would be useful to reproduce the relevant extracts of the India-Netherlands tax treaty for ready reference: 5. For purposes of this Article, fees for technical services means payments of any kind to any person in consideration for the rendering of any technical or consultancy services (including through the provision of services of technical or other personnel) if such services : . (b) make available technical knowledge, experience, skill, know-how or processes, or consist of the development and transfer of a technical plan or technical design. 36. The scope of the term make available was discussed at length in the case of Raymond Ltd. v. Dy. CIT [2003] 86 ITD 791 , in the following words: Whereas Section 9(1)(vii ) stops with the rendering of technical services, the DTA goes further and qualifies such rendering of services with words to the effect that the services should also make available technical kno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be roped into FTS when person utilizing services was unable to make use of technical knowledge etc. 38. Recently, the issue of make available came up before the Hon'ble Supreme Court in the case of Ad2pro Media Solutions (P.) Ltd. [2024] 158 taxmann.com 432 (SC). The facts were that the assessee was a private limited company engaged in business of providing graphic design solutions for advertising and marketing communications. It had remitted huge amounts to US based company for marketing services without deduction of TDS. The Assessing Officer held that assessee utilized services of US Company even in negotiations with customers and in finalizing contracts, and same could not be done without sharing technical knowledge, know-how, processes or experience, hence, payment was taxable in India as FTS. The Tribunal allowed assessee's appeal holding that payments made could not be considered as royalty or FTS and hence, no TDS was required to be deducted. It was found that US Company did not have any permanent establishment in India. Further Tribunal in its order had noted that scope of work was to generate customer leads using/subscribing customer data base, market research, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of subsequent order under Section 154 of the Act. 43. Accordingly, ground number 6 of the assessee s appeal is dismissed as not pressed. 44. Ground Nos. 8 and 9 of the assessee s appeal or consequential, and hence, the same are not being adjudicated. Ground number 7 (levy of interest under Section 234B in respect of non-- residents) 45. Before us, the Counsel for the assessee relied upon the case of Mitsubishi Corporation 130 taxmann.com 276 (SC) , wherein the Hon ble Supreme Court held that proviso to Section 209(1) issued by Finance Act, 2012 providing that if a non-resident assessee received any amount on which tax was deductible at source, assessee could not reduce such tax while computing its advance tax liability, was applicable prospectively after Assessment Year 2012-13. Therefore, during relevant Assessment Year, since assessee was a non-resident, and entire tax was to be deducted at source on payment made by payer to it and there was no question of advance tax payment by assessee, accordingly, no interest under Section 234B could be levied upon assessee. Accordingly, the Counsel for the assessee submitted that in view of the aforesaid decision clarifying the position tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nical services under section 9(1)(vii) of the Act and Article 12 of Tax Treaty. 5. Without prejudice to the above mentioned grounds, the learned AO based on the directions of the DRP has erred on the facts and in law in disregarding the fact that the amount received for the above mentioned cost recoveries is a mere allocation of cost incurred by SIBV without markup and hence the same is not chargeable to tax in India. 6. The learned AO has erred in levy of interest under section 234A and 234B of the Act. 7. The learned AO based on the directions of the DRP has erred in initiating penalty proceedings under section 274 r.w.s. 271(1)(c) of the Act against the Appellant. The Appellant reserves the right to add, amend, alter or vary all or any of the above grounds of appeal as they or their representative may think fit. 49. We observe that all the issues covered in the grounds of appeal for Assessment Year 2012-13, have been dealt with by us while deciding the issue is for Assessment Year 2011-12. Accordingly, our observations for Assessment Year 2011-12 would apply to Assessment Year 2012-13 as well. 50. However, we observe that for Assessment Year 2012-13, External Information Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are. Thus, it cannot be said that any of the EULAs in question are referable to Section 30 of the Copyright Act, inasmuch as Section 30 Copyright Act speaks of granting an interest in any of the rights mentioned in Sections 14(a) and 14(b) of the Copyright Act. The EULAs in all the appeals do not grant any such right or interest, least of all, a right or interest to reproduce the computer software. In point of fact, such reproduction is expressly interdicted, and it is also expressly stated that no vestige of copyright is at all transferred, either to the distributor or to the end-user. A simple illustration to explain the aforesaid position will suffice. If an English publisher sells 2000 copies of a particular book to an Indian distributor, who then resells the same at a profit, no copyright in the aforesaid books is transferred to the Indian distributor, either by way of licence or otherwise, inasmuch as the Indian distributor only makes a profit on the sale of each book. Importantly, there is no right in the Indian distributor to reproduce the aforesaid book and then sell copies of the same. On the other hand, if an English publisher were to sell the same book to an Indian publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reaty. 5. The learned AO based on the directions of the DRP has erred on the facts and in law in treating the cost recovery of Rs. 3,41,05,428 received from SIMPL for Real Estate and Corporate Travel Services as fees for technical services under section 9(1)(vii) of the Act and Article 12 of Tax Treaty. 6. Without prejudice to the above mentioned grounds, the learned AO based on the directions of the DRP has erred on the facts and in law in disregarding the fact that the amount received for the above mentioned cost recoveries is a mere allocation of cost incurred by SIBV without markup and hence the same is not chargeable to tax in India. 7. The learned AO has erred in levy of interest under section 234A and 234B of the Act. 8. The learned AO based on the directions of the DRP has erred in initiating penalty proceedings under section 274 r.w.s. 271(1)(c) of the Act against the Appellant. The Appellant reserves the right to add, amend, alter or vary all or any of the above grounds of appeal as they or their representative may think fit. 57. We observe that all the issues covered in the grounds of appeal for Assessment Year 2013-14, barring one issue, have been dealt with by us while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mprovement in experience and skill set of the local employees of the affiliates. The Ld. Assessing Officer relied on various judicial precedents in support of the above contention. 61. The assessee is in appeal before us against the aforesaid order passed by Assessing Officer holding the services as fees for technical services under the Act read with the Tax Treaty. Before us, the arguments of the Counsel for the assessee remain the same as discussed in earlier paragraphs while dealing with other services which were held to be FTS for Assessment Year 2011-12. 62. In our considered view, in view of our observations made in the preceding paragraphs, we are of the considered view that in respect of the aforesaid services, the condition of make available is not satisfied and the Department has not brought anything on record to demonstrate that in the instant case, the technology was made available to the recipient of services, so as to fall within the ambit/definition of FTS under the India-Netherlands tax treaty. Accordingly, in our considered view, the aforesaid services do not qualify as FTS under the India-Netherlands tax treaty. 63. In the result, ground number 5 of the assessee s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred on the facts and in law in treating the cost recovery of Rs. 3,11,42,515 received from SIMPL for IT migration support as fees for technical services under section 9(1)(vii) of the Act and Article 12 of Tax Treaty. 8. Without prejudice to the above mentioned grounds, the learned AO based on the directions of the DRP has erred on the facts and in law in disregarding the fact that the amount received for the above mentioned cost recoveries is a mere allocation of cost incurred by SIBV without markup and hence the same is not chargeable to tax in India. 9. The learned AO has erred in levying interest under section 234A and 234B of the Act. 10. The learned AO based on the directions of the DRP has erred in initiating penalty proceedings under section 274 r.w.s 271(1)(c) of the Act against the Appellant. The Appellant reserves the right to add, amend, alter or vary all or any of the above grounds of appeal as they or their representative may think fit. 65. We observe that all the issues covered in the grounds of appeal for Assessment Year 2014-15, barring two issues, have been dealt with by us while deciding the issues for earlier Assessment Years. Accordingly, our observations for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... highly specialized services, requiring expertise and industrial experience have been provided by the assessee International Tax Administration 70. Under these services, the Shell group is availing services of a professional consultancy firm for preparation and filing of tax returns of expatriates. The said firm raises its consolidated invoice on the Assessee in relation to the preparation and filing of tax returns of all the expatriates in the Shell group. Thus, all the costs relating to the personal tax compliances of such expatriates are pooled in the assessee. These costs, along with certain administrative costs incurred by the Assessee are then allocated by the Assessee among various Shell group entities based on the number of expatriates working with each entity. Accordingly, the Assessee has raised certain invoices on SIMPL in respect of the expatriates working with SIMPL. 71. The Ld. Assessing Officer observed that under the international tax administration services, the expertise and experience of the global support team of the assessee is being offered to its affiliates. The nature of tax administration work performed by the Shell group companies is highly technical in nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aragraphs, we are of the considered view that in respect of the aforesaid services, the condition of make available is not satisfied and the Department has not brought anything on record to demonstrate that in the instant case, the technology was made available to the recipient of services, so as to fall within the ambit/definition of FTS under the India-Netherlands tax treaty. 76. Accordingly, in our considered view, the aforesaid services do not qualify as FTS under the India-Netherlands tax treaty. 77. In the result, ground numbers 5 and 6 of the assessee s appeal are allowed for Assessment Year 2014-15. Assessment Year 2015-16 78. Now we shall deal with the assessee s appeal for Assessment Year 2015-16. The assessee has raised the following grounds of appeal: 1. The learned AO has erred on the facts and in law and learned DRP has further erred in confirming the action of the AO on the facts and in law in treating the aggregate cost recovery of INR 11,60,44,189 received from Hazira LNG Private Limited ('HLPL') and Shell India Markets Private Limited ('SIMPL') for HR Shell People Support as royalty under Article 12 of India - Netherlands tax treaty ('Tax Treat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st incurred by the assessee without markup and hence the same is not chargeable to tax in India. 10. The learned AO has erred on the facts and in law and learned DRP has further erred in confirming the action of the AO on the facts and in law in levying surcharge, education cess and secondary and higher education cess on the tax levied at 10% rate prescribed under Article 12 of Tax Treaty. 11. Without prejudice to the Ground No. 10 above, the learned AO has erred on the facts and in law in levying surcharge at the rate of 10% instead of applicable rate of 5% as per the provisions of the Act. 12. The learned AO has erred on the facts and in circumstances of the case and in law in giving short credit of Tax Deducted at Source to the extent of INR 30,677. 13. The learned AO has erred on the facts and in law in levying interest under Section 234A of the Act even though the Assessee has filed its return within the due date prescribed under Section 139 of the Act. 14. The learned AO has erred in levying interest under Section 234B of the Act. 15. The learned AO has erred on the facts and in law in initiating penalty proceedings under Section 274 r.w.s 271(l)(c) of the Act against the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etc has not been made available to the Indian entity. It is seen that the advice and assistance rendered by the assessee to the Indian entity are not transient in nature and are capable of being used by the Indian entity on its own. Health Ecotox services: 83. During the year under consideration, the assessee rendered Health Ecotox services to SIMPL which pertains to One Health IT System . The One Health IT system is for keeping and maintaining confidential medical information of Shell employees. The system is managed by Shell Health. The cost incurred for these services has been allocated between group companies using these services based on the actual number of full time employee per entity. As per the assessee, the fee is in relation to keeping and maintaining confidential medical information of Shell employees and therefore represents commercial / management / advisory services which are not technical in nature and therefore, the same is not taxable as FTS under Article 12 of India- Netherlands Tax Treaty. Without prejudice to the above and even for sake of argument it is assumed that the above services are technical in nature, the same does not make available any technical kn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hence, on an understanding of the overall effect of the services, it has to be held that the technical knowledge, experience, and skill are made available to the affiliates. 86. The assessee is in appeal before us against the aforesaid order passed by Assessing Officer holding the services as fees for technical services under the Act read with the Tax Treaty. Before us, the arguments of the Counsel for the assessee remain the same as discussed in earlier paragraphs while dealing with other services which were held to be FTS for Assessment Year 2011-12. 87. In our considered view, in view of our observations made in the preceding paragraphs, we are of the considered view that in respect of the aforesaid services, the condition of make available is not satisfied and the Department has not brought anything on record to demonstrate that in the instant case, the technology was made available to the recipient of services, so as to fall within the ambit/definition of FTS under the India-Netherlands tax treaty. 88. Accordingly, in our considered view, the aforesaid services do not qualify as FTS under the India-Netherlands tax treaty. 89. In the result, Ground Nos. 5 and 7 of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducted in the subsequent year as well. 93. Accordingly, the matter is being restored to the file of Assessing Officer to carry out the necessary verification, and to grant credit of TDS deducted, in accordance with law. 94. In the result, Ground No. 12 of the assessee s appeal is allowed for statistical purposes. Assessment Years 2016-17, 2017-18 and 2017-18 95. For Assessment Years 2016-17, 2017-18 and 2017-18, we observe that the grounds raised by the assessee have already been covered as part of our order while dealing with various issues raised by the assessee for earlier Assessment Years, before us. Accordingly, our observations for earlier Assessment Years, would also apply to similar issues for Assessment Years 2016-17, 2017-18 and 2017-18. We further observe that no new/additional services have been rendered for Assessment Years 2016-17, 2017-18 and 2017-18, accordingly, since all issues pertaining to grounds of appeal raised for these years have been covered in earlier part of our order, and the grounds of appeal raised by the assessee are disposed of in light of our observations for earlier Assessment Years. Assessment Years 2009-10 and 2010-11 96. For the above Assessmen ..... 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