Fees for technical services under a tax treaty are taxable only if the services 'make available' technical knowledge or know-how that enables the recipient to perform those tasks independently. Furthermore, tax rate caps stipulated in a treaty effectively include surcharge and cess, rendering additional levies impermissible.

आदेश/ORDER

PER : T.R. SENTHIL KUMAR, JUDICIAL MEMBER:-

This appeal is filed by the Assessee as against the final assessment order dated 04-01-2025 passed under section 143[3] rws 144C[13] of the Income Tax Act, 1961 [hereinafter referred as ‘the Act’] by the Assistant Commissioner of Income Tax relating to the Assessment Year 2022-23.

2. The Grounds of Appeal raised by the assessee reads as under:

“Shell International B.V. (herein referred to as the 'Appellant') craves leave to prefer appeal against the order passed by the Assistant Commissioner of Income tax, Circle (International Taxation), Ahmedabad (hereinafter referred to as 'the learned AO'] under section 143(3) r.w.s. 144C(13) of the Income Tax Act, 1961 (hereinafter referred to as 'the Act') in pursuance of the directions issued by the Hon'ble Dispute Resolution Panel-Mumbai (hereinafter referred to as 'learned DRP') on the following grounds:

1. The learned AO has erred on the facts and in law and learned DRP has further erred in confirming the action of the learned AO on the facts and in law in assessing the total income of the Appellant at INR 284,59,36,295 by making total amount of impugned additions amounting to INR 232,70,81,495.

2 The learned AO has erred on the facts and in law and learned DRP has further erred in confirming the action of the learned AO on the facts and in law in treating the aggregate cost recovery of INR 4,27,46,757 received from Shell India Markets Private Limited ('SIMPL'), and Shell Energy India Private Limited ('SEIPL') for CHR Recruitment fees as Fees for Technical Services ('FTS') under Article 12 of India-Netherlands Double Taxation Avoidance Agreement ('DTAA or 'Tax Treaty').

3. The learned AO has erred on the facts and in law and learned DRP has further erred in confirming the action of the learned AO on the facts and in law in treating the aggregate cost recovery of INR 21,55,01,257 received from SIMPL, BG Exploration and Production India Limited ('BGEPIL') and Hazira Port Private Limited ('HPPL') for Internal Communication Fees as FTS under Article 12 of India- Netherlands DTAA,

4 The learned AO has erred on the facts and in law and learned DRP has further erred in confirming the action of the learned AO on the facts and in law in treating the aggregate cost recovery of INR 11,11,50,984 received from SIMPL, SEIPL, BGEPIL, and HPPL for Remuneration and Benefit fees as FTS under Article 12 of India-Netherlands DTAA.

5. The learned AO has erred on the facts and in law and learned DRP has further erred in confirming the action of the learned AO on the facts and in law in treating the aggregate cost recovery of INR 18,26,05,189 received from SIMPL, SEIPL, BGEPIL, and HPPL for Talent and Development Fees as FTS under Article 12 of India-Netherlands DTAA.

6. The learned AO has erred on the facts and in law and learned DRP has further erred in confirming the action of the learned AO on the facts and in law in treating the aggregate cost recoveries of INR 50.58.561 received from SIMPL. for ER Strategy and Planning services as FTS under Article 12 of India-Netherlands DTAA.

7 The learned AO has erred on the facts and in law and learned DRP has further erred in confirming the action of the learned AO on the facts and in law in treating the aggregate cost recoveries of INR 3,34,93,397 received from SIMPL. for Brand advertising services as FTS under Article 12 of India-Netherlands DTAA.

8. The learned AO has erred on the facts and in law and learne