The assessee, a tax resident of the Netherlands, provided software-based support services to support service specialists in India under licence agreements. The Assessing Officer treated the receipts as royalty on the ground that the software constituted a literary work and the payments were for use of copyright. The Tribunal held that the agreements merely granted a non-exclusive right to use the copyrighted software without transferring any right, title or interest in the copyright. The licensees had no right to reproduce, modify, translate or commercially exploit the software. The payments were for the use of a copyrighted article and not for the use of, or the right to use, any copyright. Further, the India-Netherlands DTAA does not specifically include software payments within the definition of royalty. Accordingly, the receipts were not taxable as royalty in India.  The assessee rendered software support and troubleshooting services to support service specialists in India. The Revenue sought to tax the receipts as fees for technical services. The Tribunal held that under Article 12 of the India-Netherlands DTAA, technical services are taxable only if they “make available” technical knowledge, experience, skill, know-how or processes enabling the recipient to perform the services independently in future. The support services were rendered on a recurring annual basis and the recipients continued to depend upon the assessee even for routine and critical technical issues. As no enduring technical knowledge or capability was made available to the recipients, the “make available” test was not satisfied. Accordingly, the receipts were not taxable as fees for technical services in India. (AYs. 2013-14, 2015-16 & 2016-17).