The assessee is a non-resident who had entered into a sub-contract agreement with its associated enterprises, an Indian company, to provide engineering services for developing a vehicle safety system in India. For every new project/requirement in India, AE has to invariably sub-contract the relevant portion of the project to the assessee. The AO held that the money received is taxable as fees for technical services under section 9 of the Act and Article 12 of the India-US Tax treaty.  The Tribunal noted that the Memorandum of Understanding to India-USA DTAA explains the term ‘make available’ to mean that the service recipient is enabled to apply the technology. The technology will be considered available when the person acquiring such technical knowledge can use the technology in future without the service provider’s involvement on his own. If the services are consumed in the provision without leaving anything tangible with the payer for use in future, then it will not be characterized as ‘making available’ of the technical services. Where an assessee rendered engineering services to its AE without making available any technology, skill, or knowledge involved in carrying out such engineering services to enable its AE to use those services independently in future, the payment received for such engineering services could not be termed as ‘fee for technical services’. In addition, for every new project, the AE must enter into a contract with the assessee. There is no occasion to transfer or make available any technology, skill, knowledge, process, etc. The Reimbursement towards software charges will not qualify as royalty under section 9(1)(vi) or Article 12 of the DTAA. (AY. 2015-16)