The assessee made an application under section 195(2) of the Act requesting for permission to remit the cost-to-cost reimbursements to be made without deduction of tax at source. The application was rejected. On a writ petition challenging the order of rejection, the Court held that that the recourse to section 195(2) was perfectly in consonance with the object of section 195. It was maintainable. The article 12(1) of Double Taxation Avoidance Agreement between India and the United States of America provides for taxation of royalties and fees for included services arising in a contracting State and paid to a resident of the other contracting State. Further, article 12(2) provides that royalties and fees for included services may also be taxed in the contracting State in which they arise. “Fees for included services” is defined in article 12(4). Section 195(2) of the Act, placed an obligation on the assessee to make deduction of tax under sub-section (1) where payment of any sum chargeable under this Act was being made to a non-resident. The words “chargeable under this Act” if read in conjunction with provisions of article 12(4) of the Double Taxation Avoidance Agreement and the obligation under section 195(2), it becomes clear that the definition of “fees for included services” under article 12(4) was more beneficial to the assessee in so far as its obligation to deduct the tax was concerned. Accordingly, article 12(4) was to be applied to determine the liability to deduct tax. In terms of article 12(4)(b) for the purpose of construing fees for included services, it is necessary that the rendering of technical or consultancy services must make available technical knowledge, experience, skill, know-how or processes. Further, it may also consist of development and transfer of a technical plan or technical design. It is not a mere rendering of technical or consultancy services, but the requirement of make available in terms of article 12(4)(b) that has to be fulfilled. The master services agreement, if subjected to scrutiny as regards the aspect of secondment did not reveal the satisfaction of the requirement of “make available” which is a sine qua non for being fees for included services. The fact that the employees seconded has the requisite experience, skill or training capable of completing the services contemplated in secondment by itself was insufficient to treat it as fees for included services de hors the satisfaction of the “make available” clause. The “make available” requirement that is mandated under article 12(4) granted benefit to the assessee and accordingly, the question of falling back on the provisions of section 9 of the Act did not arise. On this score alone, the conclusion in the order of the payment for the service falling within the description under section 9 of the Act as “deemed income”, had to be rejected. The only order that could now be passed was of one granting “nil tax deduction at source”. The court clarified that the finding as regards deduction of tax at source under section 195 of the Act is tentative and the question of liability of the recipient was to be decided subsequently. Accordingly, there was no question of prejudice to the Revenue at the stage of the section 195 order.  The Court held that the application under section 195 is at the instance of the person making the payment, while the application under section 197 is at the instance of the recipient. Relied on Engineering Analysis Centre of Excellence Pvt. Ltd. v. CIT (2021) 432 ITR 471 (SC) (AY.2020-21)