DIT vs. Guy Carpenter & Co Ltd (Delhi High Court)

To “make available” technical knowledge, mere provision of service is not enough; the payer must be enabled to perform the service himself

The assessee, a UK based reinsurance broker, received commission from several Indian insurance companies for arranging reinsurance contracts. The AO & CIT (A) held that the commission was assessable to tax in India as “fees for technical services” u/s 9(1)(vii) & Article 13(4)(c) of the DTAA. However, the Tribunal (included in file), relying extensively on Raymond vs. DCIT 86 ITD 791 (Mum) & other judgements, held that “In order to fit the terminology “make available” in Article 13(4)(c), mere provision of technical services is not enough but the technical knowledge must remain with the payer, and he must be equipped to independently perform the technical function himself without the help of the service provider“. It was held that as the nature of services rendered by the assessee was not “technical or consultancy services which made available technical knowledge” etc to the payer, the commission was not assessable to tax. On appeal by the department, HELD dismissing the appeal:

The Tribunal held that the “make available” condition was not satisfied inasmuch as no technical knowledge etc, was made available by the assessee to the Indian insurance companies operating in India. The Tribunal conclusions are based on an assessment of the factual matrix of the case at hand and are factual in nature. As there is no perversity in the findings, it does not give rise to a substantial question of law.