ITAT : Upholds FTS taxability; 'Make available' condition inapplicable as services linked to royalty

Delhi ITAT upholds taxation  of consideration for providing SAP/CAD software related support as FTS under Article 13(4)(a), being ancillary and subsidiary to the enjoyment of the right / property for which royalty was received by assessee (a UK co., JCBE), clarifies that ‘make available’ clause under Article 13(4)(c) is not applicable; ITAT notes that in earlier years, assessee had entered into bilateral agreement under which it used to receive royalty from JCB India (Indian subsidiary) for licensing the technology with an exclusive right to manufacture and market, however, during relevant AY, assessee entered into a Tripartite Agreement whereby the technology was sub-licensed by assessee to JCB investments, and the royalty paid by JCB India was routed through JCB Investments; Thus noting that entire royalty amount was passed on to assessee through JCB Investments less 0.5%, ITAT holds JCB Investments as a pass through entity, remarks that  "Substance will rule over form", observes that except for this routing of royalty through JCB Investments, all the terms and conditions of the agreement between the assessee and JCB India including secondment of assessee's employee to JCB India for rendering of services; Rejects assessee’s stand that co-ordinate bench ruling holding JCB India a Service PE of assessee cannot be applied in present facts, observes that there is no difference in the facts and circumstances except for the tripartite vs. bilateral arrangement; Further follows co-ordinate bench ruling to hold that royalty was not effectively connected to PE in India, therefore, cannot be considered under Article 13(6), but should be taxed as royalty / FTS under Article 13 itself:ITAT