Marketing and other support services not taxable as FIS where ‘make available’ test is not satisfied; where dependent agent PE is remunerated at arm’s length, no further amount is taxable

Recently, the Bangalore bench of the Income-tax Appellate Tribunal, upheld the following two principles in the case of the USA based taxpayer -  

• The ‘make available’ test for taxability of fees for included services (FIS) was not satisfied unless there was a transfer of technology involved in rendering of technical services by the service provider to the service recipient.

Where a permanent establishment (PE) had been remunerated on arms’ length basis, no further income could be attributed to it and brought to tax in India.