Planning, HR, Legal & IT Support Not Taxable as FTS Under India-USA DTAA, Citing ‘Make Available’ Test

Crocs Inc. Vs ACIT (ITAT Delhi) Background: Assessee,  Crocs Inc., a U.S.based company, provided administrative & support services to its Indian affiliate, Crocs India Pvt. Ltd., under a service agreement . For AY 2019–20, Crocs Inc. filed a return declaring NIL income, claiming that the service income was not taxable in India under the India-USA DTAA (Article 12). However, the AO treated the service income of ₹13.74 crore as Fee for Technical Services (FTS) u/s 9(1)(vii) & taxed it accordingly. Assessee’s objections before the DRP led to a direction for factual reconsidera...