Assessee, a company incorporated in USA, was engaged in business of design and consultancy services, construction management and infrastructure development  It had entered into agreements with its Indian associate enterprises (AEs). In terms of said agreements, assessee provided management and governance support functions in area of legal, tax, treasury, finance, information technology, human resources, enterprise risk management, etc.  Assessee filed an application under section 197 seeking ‘NIL’ withholding tax certificate in respect of cross charges received from its AEs for services rendered by it Assessing Officer rejected said application and held that charges paid to assessee by its AEs were taxable as fees for technical services (FTS) and fees for included services (FIS). High Court held that assessee rendered a wide range of services to its AEs. None of the services could be considered as ‘included services’ within the meaning of Article 12 of India-US DTAA, as the same was not ancillary and subsidiary to the application or enjoyment of right, property or information for which assessee received royalty, as covered under Article 12(3) of the India-US DTAA. Further, services rendered by assessee did not make available technical knowledge, experience, skill, know-how, or processes to AEs.High Court held that since the services provided did not confer any right in favour of the recipient in respect of knowledge, experience, skill or know-how, the condition that services ‘make available’ such technical knowledge, know-how, skill, or process so as to fall within the sweep of FIS would not be satisfied. Further, given the fact that AEs did not acquire any copyright in software, cross charges paid by them could not be construed as royalties within the scope of Article 12(3) of the India-US DTAA. The order was set aside, and the Assessing Officer was to be directed to issue a necessary certificate or ‘NIL’ withholding Tax Certificate in respect of cross-cost charges as received by the assessee from its AEs. SLP of revenue dismissed. (AY. 2024-25)