India: WHT on Architectural design consultany services

Taxability of architectural design consultancy services provided by foreign/non-resident entities in India is a litigative issue. The Revenue Authorities generally contest that such services are in the nature of fee for technical services (FTS)/Royalties and thus subject to WHT in India. The Mumbai Income Tax Appellate Tribunal (ITAT) in the recent decision of M/s Forum Homes Pvt Ltd, on examining the specific facts and in context of India – Singapore DTAA took note of the nature of services provided by the non-resident entities and the terms and conditions under which it was provided. The ITAT observed that the services provided were project specific and cannot be used for any other project. Further, while providing such services neither any technical knowledge, skill, etc is made available to the payer for utilizing in future, independently nor any developed drawing or design has been provided to the payer which can be applied by them independently. Thus, in absence of fulfilment of make available condition, the same is not taxable as FTS. A useful decision having persuasive value in litigations on this subject.