Shell International B.V. Vs ACIT (ITAT Ahmedabad)
ITAT Ahmedabad held that services do not qualify as Fee for Technical Services [FTS] under India-Netherlands tax treaty since department failed to demonstrate that technology was ‘make available’ to recipient of services.
Facts- The present appeal has been preferred by the assessee. The assessee submitted that the case of the assessee is covered by order passed in the case of this entity i.e. Shell International B.V. for A.Ys. 2009-10 to 2018-19 vide order dated 20.03.2024. The Counsel for the assessee submitted that out of a total 13 services rendered by the assessee during the impugned assessment year, 5 services i.e. CHR Recruitment Fees – FTS, External Information Services – FTS, Real Estate Corporate Travel Services – FTS, Health Ecotox Services – FTS and IT Services – FTS have been dealt with in the order referred to above. Therefore, the taxability regarding these services are directly covered by the aforesaid order. For the balance 8 new services, although the services are different, however, the legal contention that in the instant facts the services do not qualify as fee for technical services, since the services do not “make available” technology to the recipient of services has been upheld in favour of the assessee in the order passed by ITAT for A.Y. 2009-10 to 2018¬-19 and the assessee wishes to rely on the observations made by the ITAT qua the “make available” clause in the aforesaid order.
