What Is the Make Available Clause for Technical Services?
The make available clause is a condition written into a handful of India's Double Taxation Avoidance Agreements (DTAAs) that narrows what counts as a taxable "fee for technical services" (FTS). Under a treaty carrying this clause, a payment for technical, managerial or consultancy services is only taxable as FTS if the service also "makes available" technical knowledge, experience, skill, know-how or a process — meaning the recipient is left able to apply that knowledge or process on its own in the future, without needing the service provider again. A one-off repair, a routine consulting opinion, or a support call that fixes a problem but leaves no durable capability behind does not meet this test, even though the work was plainly technical.
This clause matters because most of India's DTAAs do not contain it. Where a treaty has no make-available condition, any payment for managerial, technical or consultancy services is taxable as FTS at the treaty rate — full stop, regardless of whether any skill transfers. Where a treaty does have the clause, a foreign company can structure a service so that it falls outside the FTS article entirely, and outside Indian taxation altogether if it has no permanent establishment in India.
The Domestic Law Baseline — Section 9(7) of the Income-tax Act, 2025
India's own definition of fees for technical services, independent of any treaty, is set out in section 9(7) of the Income-tax Act, 2025 (section 9(1)(vii) of the Income-tax Act, 1961). It defines FTS as "any consideration (including any lump sum consideration) for the rendering of any managerial, technical or consultancy services (including the provision of services of technical or other personnel)" — excluding only consideration for a construction, assembly, mining or like project undertaken by the recipient, and amounts that would be salary income.
Notice what is missing: the domestic definition has no make-available condition at all. Any managerial, technical or consultancy fee, however routine, falls within section 9(7) if paid by the Government, by an Indian resident (subject to the outside-India carve-outs), or by a non-resident for services used in a business or profession carried on in India. This is deliberately broader than the narrowest DTAA definitions, which is exactly why the treaty override matters.
How a Treaty Can Override the Domestic Definition
Section 159(4) of the Income-tax Act, 2025 (section 90(2) of the Income-tax Act, 1961) lets a non-resident apply whichever of domestic law or the relevant DTAA is more beneficial. So if a treaty's FTS article is narrower than section 9(7) — because it carries a make-available condition the domestic law lacks — a foreign taxpayer can elect the treaty position and escape FTS taxation on a service that fails the make-available test. To do so, the non-resident must hold a valid Tax Residency Certificate, a requirement now at section 159(8) of the Income-tax Act, 2025 (section 90(4) of the Income-tax Act, 1961), and must furnish Form 41 (formerly Form 10F) to the payer. Without these, the payer has no basis to apply the lower or narrower treaty position at source, and withholding proceeds on the domestic definition.
Which of India's Treaties Actually Have the Clause
The make-available clause is not a universal feature of India's treaty network — it is specific drafting that appears in some treaties and is absent from others of the same era. Four treaties confirmed to carry a genuine make-available test are:
- India-USA — Article 12(4) taxes "fees for included services" where the service is either (a) ancillary and subsidiary to the application or enjoyment of a right, property or information for which a royalty is paid, or (b) makes available technical knowledge, experience, skill, know-how or processes, or consists of the development and transfer of a technical plan or design. The Memorandum of Understanding annexed to the treaty's Article 12 glosses "made available" as the recipient being enabled to apply the technology on its own.
- India-UK — Article 13(4) defines "fees for technical services" as technical or consultancy services that are (a) ancillary to a 3(a) intellectual-property right, (b) ancillary to equipment rental, or (c) make available technical knowledge, experience, skill, know-how or processes, or the transfer of a technical plan or design.
- India-Singapore — Article 12(4) covers "services of a managerial, technical or consultancy nature" (managerial included, unlike the US and UK treaties) but only where they (a) are ancillary and subsidiary to a payment described in paragraph 3, (b) "make available technical knowledge, experience, skill, know-how or processes, which enables the person acquiring the services to apply the technology contained therein", or (c) consist of the development and transfer of a technical plan or design — expressly excluding "any service that does not enable the person acquiring the service to apply the technology contained therein". The Article 12(2) rate is 10%.
- India-Portugal — Article 12(4) uses the US-style "fees for included services" label and the same two limbs, with limb (b) requiring that the services "make available technical knowledge, experience, skill, know-how or processes or consist of the development and transfer of a technical plan or technical design which enables the person acquiring the services to apply the technology contained therein". The rate is 10%. This treaty matters beyond its own trade flows, because it is the one from which the make-available condition is argued into other treaties through most-favoured-nation clauses.
By contrast, the following treaties were checked for this clause and confirmed to have no make-available condition — their FTS or equivalent article taxes any payment for managerial, technical or consultancy services without any transfer-of-skill test: India-Germany, India-Austria, India-Norway, India-Poland, India-Denmark, India-Vietnam, India-Ireland and India-Turkey. Most of these combine royalties and FTS in a single article (commonly Article 12 or 13) with wording limited to "managerial, technical or consultancy" services, including the provision of technical or other personnel; the India-Vietnam treaty instead gives technical fees a standalone Article 13, with the same broad wording. Either way the language matches the domestic law, so electing the treaty over section 9(7) narrows only the rate, not the scope of what counts as taxable.
Belgium — a treaty without the clause, but with a contested route to it
Belgium needs to be stated separately, because both answers circulate and only one of them is safe to rely on. The India-Belgium treaty text has no make-available condition: Article 12, as substituted with effect from 1998, defines fees for technical services as payments for services "of a managerial, technical or consultancy nature, including the provision of services of technical or other personnel", and caps them at 10%.
What complicates it is the Protocol's most-favoured-nation clause. The ITAT held in Soregam SA that the clause imports not only a lower rate but a narrower scope, reading the India-Portugal make-available condition into the Belgian treaty, with the result that IT support services transferring no technical knowledge were business profits rather than FTS and so untaxed in India absent a permanent establishment. That reasoning predates the Supreme Court's 2023 decision in Assessing Officer v. Nestle SA, which held that an MFN benefit takes effect only through a notification under section 90. The 10% rate is backed by exactly such a notification (S.O. 54(E) of 19 January 2001); the make-available scope import is not. So for Belgium the clause is an arguable position a recipient can press in its own assessment, not a benefit an Indian payer can grant at source — the conservative course is to withhold at the notified 10%.
India's treaty with Thailand goes further still: it has no FTS article at all. A technical or consultancy fee paid to a Thailand-resident recipient falls instead under the business-profits article (taxable in India only if the recipient has a permanent establishment there) or the independent-services article, or, absent a treaty position, under India's domestic law at the 20% rate in section 207(2) (Table, Sl. No. 2) of the Income-tax Act, 2025 (section 115A of the Income-tax Act, 1961).
This list reflects only the treaties checked in this review. Do not assume by analogy that a treaty from the same period, or with a similarly worded royalty article, does or does not carry a make-available clause — each treaty's FTS or fees-for-included-services article must be read on its own text.
Why This Divides Foreign Companies Into Two Very Different Positions
The practical stakes are large. A US or UK parent that provides genuine technology transfer or capability-building services to its Indian subsidiary — for example, training the subsidiary's own engineers to operate and maintain a proprietary process without further outside help — can find that service falls inside Article 12(4)(b) of the US treaty or Article 13(4)(c) of the UK treaty, taxable at the treaty FTS rate (currently 15% under both treaties). But if the same parent instead provides a one-off diagnostic visit, a single bug fix, or standard support that leaves no durable capability behind, that payment fails both limbs of the make-available test and may not be taxable as FTS in India at all — it would need to be assessed under the business-profits article, which requires a permanent establishment before India can tax it.
A parent resident in Germany, Austria, or any of the other treaties confirmed above to lack the clause has no such escape route. Any payment for managerial, technical or consultancy services to its Indian subsidiary is FTS under that treaty's own definition regardless of whether skill transfers, taxable at that treaty's rate (10% under the Germany, Austria, Norway, Ireland and Vietnam treaties reviewed here; 15% under Poland and Turkey; 20% under Denmark) — the only planning lever is the rate itself, not the character of the service.
For a foreign company deciding where to route technical support, training, or consultancy services into an Indian subsidiary, or how to draft the underlying service agreement, the presence or absence of a make-available clause in the parent's treaty is a first-order fact — not a detail to leave to the year-end tax return.
Worked Examples
Example 1 — make-available test met. A US parent sends engineers to its Indian subsidiary for three weeks to train the subsidiary's own staff on a proprietary manufacturing process, hands over process documentation, and thereafter has no further involvement. The subsidiary's engineers can now run and maintain the process unaided. This makes available technical knowledge and a process — it is FTS under Article 12(4)(b) of the India-USA treaty, taxable at 15%, subject to Form 41 and a US Tax Residency Certificate being on file.
Example 2 — same facts, a treaty without the clause. If the parent company were German instead of American, the identical training arrangement would still be FTS — but not because of any make-available test. Article 12(4) of the India-Germany treaty taxes any managerial, technical or consultancy service, so the outcome is the same 10% liability whether or not skill is transferred.
Example 3 — the clause changes the outcome. A US parent's engineer spends two days remotely diagnosing and patching a single software defect for the Indian subsidiary, with no training, no documentation handover, and no transfer of the underlying method. Under the India-USA treaty this fails both limbs of Article 12(4) — it is neither ancillary to a royalty-bearing right nor a make-available service — so it falls outside FTS. Absent a US permanent establishment in India, the fee may escape Indian tax entirely. The same two-day patch performed by a German engineer under the India-Germany treaty remains taxable FTS, because that treaty's definition does not turn on whether anything was made available.
Common Mistakes
- Assuming "make available" is a general treaty principle. It is specific drafting present in some treaties and absent from others; the India-Germany, India-Austria and other treaties confirmed above tax technical services on a plain managerial/technical/consultancy basis with no such filter.
- Treating the "ancillary and subsidiary" limb and the "make available" limb as the same test. Under the India-USA and India-UK treaties these are two independent routes into the FTS article — a service can be taxable because it is tied to a royalty-bearing right even if nothing is made available, or because something is made available even where no royalty is paid.
- Applying a narrower treaty definition without the paperwork. A non-resident cannot simply rely on a make-available argument at the payer's end; the treaty position requires a Tax Residency Certificate and Form 41 (formerly Form 10F) under section 159(8) — otherwise the payer withholds on the (broader) domestic definition.
- Assuming the clause changes the rate rather than the scope. Where the clause exists, it can remove a payment from FTS altogether, shifting it to the business-profits article, not merely lower the rate applied to it.
Frequently Asked Questions
Does India's domestic law have a make-available test?
No. Section 9(7)(b) of the Income-tax Act, 2025 defines fees for technical services as any consideration for managerial, technical or consultancy services, with no condition that skill or knowledge be transferred to the recipient. The make-available filter exists only in the specific DTAAs that include it, and only applies once a non-resident elects the treaty over domestic law under section 159(4).
Which of India's treaties include a make-available clause?
Confirmed in this review: the treaties with the USA (Article 12(4)(b)), the UK (Article 13(4)(c)), Singapore (Article 12(4)(b)) and Portugal (Article 12(4)(b)). The treaties with Germany, Austria, Norway, Poland, Denmark, Vietnam, Ireland and Turkey do not — each taxes any managerial, technical or consultancy service without a make-available condition. Belgium is the awkward case: its treaty text has no such condition, but tribunals have read one in through the Protocol's MFN clause, and that import is unnotified and contested after the Supreme Court's 2023 Nestle ruling. Always check the specific treaty text rather than assuming by analogy.
What happens if a treaty has no FTS article at all, like India-Thailand?
The India-Thailand treaty has no FTS article. A technical or consultancy fee paid to a Thai resident instead falls under the business-profits article (taxable only with an Indian permanent establishment) or the independent-services article, or, absent a treaty position, under India's domestic law at the 20% rate in section 207(2).
How is "make available" actually interpreted?
The test is whether the recipient is left able to apply the technical knowledge, skill or process on its own afterwards, without needing the provider again. This gloss comes from the Memorandum of Understanding annexed to the India-USA treaty's Article 12. A single diagnostic visit, repair, or advisory opinion that leaves no durable capability behind does not meet the test even though the work performed was technical.
Can a company simply choose the more favourable definition?
Yes, but only with the right paperwork. Section 159(4) of the Income-tax Act, 2025 lets a non-resident apply whichever of domestic law or the relevant DTAA is more beneficial, provided it holds a valid Tax Residency Certificate under section 159(8) and furnishes Form 41 to the payer before the payment is made.
See also: Double Taxation Avoidance Agreement (DTAA), Section 393(2) — TDS on Payments to Non-Residents, and Withholding Tax.
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