HEIDRICK & STRUGGLES INC,GURGAON, HARYANA V. ASSISTANT COMMISSIONER OF INCOME TAX, INTERNATIONAL TAXATION, CIRCLE 2(1)(1), DELHI, DELHI

ITITA 1743/DEL/2025

AI Insights

The case involves two appeals by Heidrick & Struggles Australia Pty. Ltd. and Heidrick & Struggles Inc., both part of the same worldwide group, against the assessment orders passed by the Assistant Commissioner of Income Tax, which taxed their receipts from legal and professional services and corporate allocation charges. The primary legal issue was whether these receipts constituted Royalty or FIS under the DTAAs with India, which would make them taxable in India. The Tribunal found that the legal and professional services did not meet the criteria of 'make available' as required under the DTAAs, thus not constituting FIS. However, for the CAC received by Heidrick & Struggles Inc., the matter was remanded for further examination of the 'make available' condition.

• Counselvise Citation: [2026] 140 COUNSELVISE.COM (IT) 838159 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 27 day(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 18-02-2026
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2022-2023
• Appeal Filed On: 21-03-2025
• Other Referred Cases: DCIT vs. Heidrick & Struggles India Pvt. Ltd., Visteon Corporation vs. DCIT, AECOM Inter Continental Holdings UK Ltd. vs. ITO, KELLAR Asia Pacific Ltd. vs. DCIT, H.J. Heinz Company vs. DCIT
• Laws Referred To: Income Tax Act, 1961, India-Australia Double Taxation Avoidance Agreement, India-USA Double Taxation Avoidance Agreement
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: M.S. NETHRAPAL
• Assessee Lawyers: K.M. GUPTA; SURTI KAMITA
• Keywords: TDS; Initiation of penalty proceedings; Deemed to accrue or arise in india; Double taxation relief
• Section: 143(3); 90; 234B; 40(a)(ia)

Judgement Text

"ITA Nos. 1742 & 1743/Del/2025 HEIDRICK & STRUGGLES AUSTRALIA PTY. LTD. AND HEIDRICK & STRUGGLES INC. 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “D”NEW DELHI BEFORE MS. MADHUMITA ROY, JUDICIAL MEMBER AND SHRI SANJAY AWASTHI, ACCOUNTANT MEMBER I.T.A No.1742/DEL/2025 Assessment Year: 2022-23 HEIDRICK & STRUGGLES AUSTRALIA PTY. LTD. C/o Heidrick & Struggles (India) Private Limited,10th Floor, Building No.9B, DLF Cyber City,Phase-III, Gurgaon, Haryana, INDIA. PAN No.AADCH9855Q Vs. ASSISTANT COMMISSIONER OF INCOME TAX, International Taxation, Circle 2(1)(1), Civic Centre, Minto Road, New Delhi. अपीलाथ\u0007 Appellant यथ\u0007/Respondent & I.T.A No.1743/DEL/2025 Assessment Year: 2022-23 HEIDRICK & STRUGGLES INC., C/o Heidrick & Struggles (India) Private Limited,10th Floor, Building No.9B, DLF Cyber City,Phase-III, Gurgaon, Haryana, INDIA. PAN No.AACCH4893D Vs. ASSISTANT COMMISSIONER OF INCOME TAX, International Taxation, Circle 2(1)(1), Civic Centre, Minto Road, New Delhi. अपीलाथ\u0007 Appellant यथ\u0007/Respondent Assessee by Shri K.M. Gupta, Advocate, Ms. Surti Kamita, Advocate, Shri Jaskaran Singh, CA Revenue by Shri M.S. Nethrapal, CIT DR Date of hearing: 02.02.2026 Pronouncement on: 18.02.2026 आदेश /O R D E R PER SANJAY AWASTHI, ACCOUNTANT MEMBER: 1. This is a batch of two appeals pertaining to different assessees, but belonging to the same worldwide group of Heidrick & Struggles. Since the issues are interconnected and similar across the two cases,hence, these two appeals are being disposed of through a single order. Printed from counselvise.com ITA Nos. 1742 & 1743/Del/2025 HEIDRICK & STRUGGLES AUSTRALIA PTY. LTD. AND HEIDRICK & STRUGGLES INC. 2 1.1 To appreciate the contentious issues pertaining to the two cases the grounds of appeal may be extracted as under: - Grounds of ITA No.1742/Del/2025: “General Grounds: 1. On the facts and circumstances of the case, the assessment order passed by the Learned Assessing Officer (‘Ld. AO’) under section 143(3) read with section 144C(13) of the Income tax Act, 1961 (‘the Act’) pursuant to the directions of the Ld. Dispute Resolution Panel-I (‘Ld. DRP’) is bad in law, unlawful and unjust. 2. On the facts and circumstances of the case and in law, the Ld. AO has erred in determining the total income of the Appellant at INR 2,03,64,264 as against the returned income of NIL reported by the Appellant in its return of income, thereby making an addition of INR 2,03,64,264 and computing alleged demand of INR 27,28,803 vide the final assessment order. Taxability of receipt from legal and professional services of INR 2,03,64,264 under Article 12(3) of India-Australia Double Taxation Avoidance Agreement (‘DTAA’) 3. That the Ld. AO/Ld. DRP has erred on the facts and in law in making an addition of INR 2,03,64,264 towards fee for professional services in respect of recruitment services by holding that such fee is chargeable to tax as Royalty/Fees for includes services (‘FIS’) under Article 12(3) of India-Australia DTAA, disregarding the details furnished by the Appellant and without appreciating that: 3.1. The Appellant has provided recruitment services viz. executive search and has not provided any right to use any portal or intangible asset as alleged by the Ld. AO/Ld. DRP, and hence the rendering of such legal and professional services does not tantamount to ‘Royalty’ as defined under Article 12(3) of India-Australia DTAA; 3.2. The legal and professional services rendered by the Appellant do not satisfy the ‘make-available’ test and hence, falls outside the ambit of FIS as defined under Article I2(3)(g) of the India- Australia DTAA. 3.3. The Learned Commissioner of Income Tax (Appeals) [‘CIT(A)’] and Hon’ble Income Tax Appellate Tribunal (TTAT’) in Appellants’ associate enterprise’s case for Assessment Years 2012-13 till AY 2015-16 has already settled this issue in favour of the taxpayer; Printed from counselvise.com ITA Nos. 1742 & 1743/Del/2025 HEIDRICK & STRUGGLES AUSTRALIA PTY. LTD. AND HEIDRICK & STRUGGLES INC. 3 4. On the facts and circumstances and in law, the Ld. AO has erred in levying the interest of INR 6,93,376 under section 234B of the Act. Initiation of penalty proceedings 5. On the facts and circumstances of the case and in law, the Ld. AO has erred in initiating penalty proceedings u/s 270A of the Act against the Appellant on account of the addition made in the final assessment order. The above grounds are independent of, and without prejudice to each other.” Grounds of ITA No.1743/Del/2025: “General Grounds: 1. On the facts and circumstances of the case, the assessment order passed by the Learned Assessing Officer (‘Ld. AO’) under section 143(3) read with section 144C(13) of the Income tax Act, 1961 (‘the Act’) pursuant to the directions of the Ld. Dispute Resolution Panel-I (‘Ld. DRP’) is bad in law, unlawful and unjust. 2. On the facts and circumstances of the case and in law, the Ld. AO has erred in determining the total income of the Appellant at INR 8,31,75,805 as against the returned income of NIL reported by the Appellant in its return of income, thereby reducing the refund of INR 51,66,155 as claimed by the Appellant in return of income and computing alleged demand of INR 73,52,122 vide the final assessment order. Taxability of receipt from legal and professional services of INR 3,58,66,719 under Article 12(3)/(4) of India-USA Double Taxation Avoidance Agreement (‘DTAA’) 3. That the Ld. AO/Ld. DRP has erred on the facts and in law in making an addition of INR 3,58,66,719 towards fee for professional services in respect of recruitment services by holding that such fee is chargeable to tax as Royalty/Fees for includes services (‘FIS’) under Article 12(3)/(4) of India-USA DTAA, disregarding the details furnished by the Appellant and without appreciating that: 3.1. The Appellant has provided recruitment services viz. executive search and has not provided any right to use any portal or intangible asset as alleged by the Ld. AO/Ld. DRP, and hence the rendering of such legal and professional services does not tantamount to ‘Royalty’ as defined under Article 12(3) of India-USA DTAA; 3.2. The legal and professional services rendered by the Appellant do not satisfy the ‘make-available’ test and hence, Printed from counselvise.com ITA Nos. 1742 & 1743/Del/2025 HEIDRICK & STRUGGLES AUSTRALIA PTY. LTD. AND HEIDRICK & STRUGGLES INC. 4 falls outside the ambit of FIS as defined under Article I2(3)(g) of the India- USA DTAA; 3.3. INR 1,09,48,500 is towards reversal of excess legal and professional fee charged during preceding year and hence, such excess billing ought not to be regarded as legal and professional fees; 3.4 Ld. Commissioner of Income Tax (Appeals) [‘CIT(A)] and Hon’ble Income Tax Appellate Tribunal (‘ITAT’) in Appellants’ associate enterprise’s case for assessment years 2012-13 till 2015-16 has already settled this issue in favour of the taxpayer. Taxability of receipt from corporate allocation charges of INR 4,73,09,086 under Article 12 of India-USA DTAA 4. That the Ld. AO/Ld. DRP has erred on the facts and in law in making an addition of INR 4,73,09,086 towards revenue earned from corporate allocation charges by holding such revenue to be in the nature of FIS as per Article 12(4) of India-USA DTAA without appreciating the fact that: 4.1 Nature of services under corporate allocation charges does not satisfy the ‘make-available’ test and hence, falls outside the ambit of FIS as defined under Article 12(4) of the India-USA DTAA; 4.2 Such corporate allocation is in the nature of reimbursement and recovered on cost-to-cost basis without any income element in it and hence, not chargeable to tax in India. 5. On the facts and circumstances of the case and in law, the Ld. AO has erred in levying the interest of INR 12,75,551 under section 234B of the Act. Initiation of penalty proceedings 6. On the facts and circumstances of the case and in law, the Ld. AO has erred in initiating penalty proceedings under section 270A of the Act against the Appellant on account of the addition made in the final assessment order. The above grounds are independent of, and without prejudice to each other.” 2. At this stage, we may briefly summarize the nature of commercial activity of the two assessees under consideration. It is seen that Heidrick & Struggles Australia Pty. Ltd. is a tax resident of Australia and is engaged in the business of Executive Search and Leadership Consulting Services. As a Printed from counselvise.com ITA Nos. 1742 & 1743/Del/2025 HEIDRICK & STRUGGLES AUSTRALIA PTY. LTD. AND HEIDRICK & STRUGGLES INC. 5 resident of Australia this assessee has claimed the benefit of India-Australia Double Taxation Avoidance Agreement (DTAA). This assessee has mainly received legal and professional fee from both Heidrick & Struggles (India) Pvt. Ltd. and from various third parties amounting to Rs.203,64,264/-. 2.1 Heidrick & Struggles Inc. [ITA No.1743/Del/2025] is a tax resident of the United States of America. This assessee is also engaged in the business of executive search and leadership consulting services, like the other assessee. This assessee has claimed the benefit of the India – USA (DTAA). This assessee has also shown receipts from Corporate Allocation Charges (CAC) of Rs.473,09,086/- from Heidrick & Struggles (India) Pvt. Ltd. and also legal and professional fee amounting to Rs.89,09,220/-; the assessee has also received legal and professional fee from various third parties amounting to Rs.160,08,999/-; and a credit note has been issued by the Adani Group amounting to Rs.109,48,500/-. 2.2 In both of the cases, the legal and professional fee has been brought to tax as Royalty/Fees for Included Services (FIS) under the respective DTAA’s. In both these cases there is an allegation by the Ld. AO that the receipts towards legal and professional charges are in the nature of Royalty since the assessees’ are providing use of some “secret formula” as well as information concerning their commercial experience such that every search conducted by these assessees’ brings to bear with it their own experience in the field of executive hiring, which is used by their clients in hiring appropriate executives. On the basis of this finding the Ld. AO has not only concluded that such receipts are in the nature of royalty but has also further concluded that the receipts towards legal Printed from counselvise.com ITA Nos. 1742 & 1743/Del/2025 HEIDRICK & STRUGGLES AUSTRALIA PTY. LTD. AND HEIDRICK & STRUGGLES INC. 6 and professional charges are in the nature of FIS as such services satisfy the “make available” condition as per the respective DTAA’s governing the two assessees’ under consideration. 2.3 For ITA 1743/Del/2025 there is an additional controversy regarding the bringing to tax of Corporate Allocation Charges (CAC) amounting to Rs.473,09,086/-. Such earnings have been termed as FIS under Article 12(4) of India US DTAA. These expenses are, as claimed by the assessee, in the nature of reimbursement of services provided in terms of accounting corporate law, executive management, etc. 3. Before us, the Ld. AR argued with the help of several paper books and a synopsis of arguments which was supplied to the Bench and the Ld. DR, for both the cases. The Ld. AR argued that the impugned services do not result in any transfer of skill or expertise to the client since the assessees’ primary scope of work is to help their clients in hiring of man- power and for that purpose relevant information on specific candidates is provided to the clients, based on which the hiring is finalized. Once such hiring is done the assessees’ have no further role of play. The use of the assessees’ portal is for the limited purpose of sharing relevant information and does not lead to any right of using proprietary information and is therefore not covered within the purview of royalty. It was the submission by the Ld. AR that the impugned services are not in any manner linked with providing of any “secret formula”. It was the submission that it is not the case that once a commercial engagement is successfully concluded with a client then the client becomes adequately empowered to conduct searching and hiring on its own without the benefit of Printed from counselvise.com ITA Nos. 1742 & 1743/Del/2025 HEIDRICK & STRUGGLES AUSTRALIA PTY. LTD. AND HEIDRICK & STRUGGLES INC. 7 the expertise of the assessees’ concern. It was emphasized by the Ld. AR that the assessees’ clients would continue to engage on case-to-case basis in future also for executive hiring. The Ld. AR stated that the “make available” condition does not get triggered in either of the two cases even when the DTAA’s are different. It was further pointed out by the Ld. AR that in the case of a sister concern of the two assessees’ this matter has been conclusively decided in favour of the assessees. The Ld. AR relied on the case of DCIT vs. Heidrick & Struggles India Pvt. Ltd. (ITA Nos. 1021, 1022, 5812/Del/2018 & 2387/Del/2019). The Ld. AR presented a copy of the ITAT’s order for our perusal and read out from para 11 at pages 14 to 16 from this order. 3.1 It was mentioned that CAC is in line with the group’s global policy where all central costs are charged down through the legal entity chain so that each standalone company is correctly charged for all appropriate expenses. The assessee has been reimbursed for the services it has provided in this respect. The Ld. AR argued here also that no technical knowledge etc. has been transferred to Heidrick & Struggles (India) Pvt. Ltd. and thus, such services do not qualify the test of “make available”. The Ld. AR relied on several case laws and some of the important ones deserve to be mentioned:- i) Visteon Corporation [173 taxmann.com 659 (Chennai – Trib.)]; ii) AECOM Inter Continental Holdings UK Ltd. [175 taxmann.com 351 (Del – HC)]; iii) KELLAR Asia Pacific Ltd. [178 taxmann.com 141 (Del – Trib.)]. Printed from counselvise.com ITA Nos. 1742 & 1743/Del/2025 HEIDRICK & STRUGGLES AUSTRALIA PTY. LTD. AND HEIDRICK & STRUGGLES INC. 8 In light of these case laws the Ld. AR argued that the applicability of the “make available” clause through rendering services and making technical knowledge available to Heidrick & Struggles (India) Pvt. Ltd. for it to be able to perform the services without any assistance of the company in future, are not satisfied in the present case. 4. Per contra, the Ld. DR argued with the help of the Ld. AO’s finding regarding the legal and professional fee and stated that the receipts would be termed as Royalty or FIS and would thus betaxable in India. 4.1 Regarding the CAC charges the Ld. DR read out from the Ld. AO’s order as under: - “6.2. Corporate Allocation: - Rs.4,73,09,086/- The revenue earned by the assessee from Corporate Allocation includes revenue from rendering of several technical services. Upon perusal of the intercompany agreement provided by the assessee it is observed that the assessee has been rendering various technical services including providing systems training including, but not limited to, analyzing, designing, developing and implementing learning strategies to support a wide range of learning formats (including classroom based, e-learning, and mobile learning); analyze training needs and create training classes and related training materials; review and recommend new and evolving research, methods and techniques related to learning; installation and maintenance of hardware, hardware and software programming (including business application systems, internal email systems, internet presence and utilization systems, and knowledge management systems), as well as communicating appropriate maintenance requirements (including the provision of proper documentation and manuals for system operations) to Recipient Company’s employees and ensuring compliance with such requirements, together with “troubleshooting” any of such employees’ information technology problems; Provide systems development including, but not limited to, the evaluation, selection, implementation and provision of Electronic Data Processing (“EDP”) solutions; provide management and other professional development training to certain members of a recipient Company’s staff; Providing advice on pension and fringe benefits generally. Printed from counselvise.com ITA Nos. 1742 & 1743/Del/2025 HEIDRICK & STRUGGLES AUSTRALIA PTY. LTD. AND HEIDRICK & STRUGGLES INC. 9 6.2.1. It can be seen from the above that the assessee is earning revenue from rendering various technical services including training and accordingly, such revenue is chargeable to tax as per the provisions of the IT Act and the India USA DTAA, since it satisfies the “make available” clause. 6.2.2. Accordingly, it is proposed to add the revenue from corporate allocation for Rs.4,73,09,086/- as chargeable to tax as FTS/FIS under Article 12(4) of India-USA DTAA.” It was also pointed out that the Ld. DRP has considered the Ld. AO’s finding on page 9 at page 6 of their order and has held that as per the India – US DTAA the “make available” clause is satisfied. The Ld. DR also relied on the case of H.J. Heinz Company [108 taxmann.com 473 (Del–Trib.)], dated 23.08.2019. The Ld. DR read out from para 21 of the order as under: - “21. We have heard both the parties and perused all the relevant materials available on record. It is pertinent to - note that taxability of the payment made by Heinz India towards the cost allocated by Heinz USA in respect of the activities carried out will depend upon the characterization of such payment. Such payment could be governed by Article 12 - 'Royalties and fees for included services' or Article 7 - 'Business Profits'. The term \"fees for included services\" (FIS) has been explained in Article 12(4) of the DTAA which reads as under: ………………….. The assessee has filed the present appeal challenging the assessment order on the ground that the cost reimbursement of Rs.1,88,54,358/- received by the assessee towards providing support services to its group affiliates are taxable as FTS both u/s 9(l)(vii) of the Act as well as Article 12(4) of the DTAA taxing the same by the assessing officer as royalty is also not just and proper. From the perusal of the records it can be seen that the assessee has entered into a global agreement effective from 3rd May, 2007 with its group entities (affiliates), including Heinze India Pvt. Ltd. (Heinze India) for the provision of support activities. The underlying objective of the agreement is to achieve consistency of approach and economies of scale for the group entities. The activities carried out by the Heinz, USA under the agreement are broadly in the area of supply chain Human Resources, Strategic Planning and marketing, Finance and information systems from the DTAA as well as the agreements entered into by the assessee company as well as Heinz, India Novel Define but services are coming while claiming the reimbursement. The approach of the assessee is that the services should not be considered as taxable contending that they are merely reimbursements and reimbursement cannot be taxed. But Printed from counselvise.com ITA Nos. 1742 & 1743/Del/2025 HEIDRICK & STRUGGLES AUSTRALIA PTY. LTD. AND HEIDRICK & STRUGGLES INC. 10 to come under the category of reimbursement of certain receipts of service, the same has to fulfill certain criteria for which the services have to be provided by the assessee to its affiliated companies. The assessing officer has observed that the services provided by the assessee are in the area of supply chain, human resources, strategic planning and marketing, finance and information systems under the agreement which is an admitted fact. Thus, services have been utilized by the Indian Company as well. The concept of make available requires that the fruits of the services should remain available to the service recipients in some concrete shape such as technical knowledge, experience, skills etc. which is met in the instant case as can be reflected from the nature and duration of the contract. The service recipient has to make use of such technical knowledge, skills etc. by himself in his business and for his own benefit. Thus, the short durability or permanent usage of the service envisages by the concept of make available services remains at the disposal of their service recipients. Thus, the consideration qualifies as fees for technical services (FTS) both under the Income Tax Act and under the tax treaty as well. The Ld. AR relied upon the various decisions in respect of meaning of make available under DTAA and certain support services which do not satisfy make available clause under DTAA. The first case law of the Hon'ble Jurisdictional High Court is Guy Carpenter and Company Ltd.'(supra). After going through the decision in this particular case, the issue was whether the nature of reinsurance brokerage, commission which was paid by insurance companies operating in India to the assessee was assessable as fees for technical services within the meaning of Section 9(l)(vii) of the said Act read with Article 13 of the India United Kingdom Double Tax Avoidance Agreement or not. The Hon'ble Delhi High Court observed that a plain reading of Article 13(4)(c) of the DTAA indicates that fees *for technical services would mean payments of any kind to any person in consideration for the rendering of any technical or consultancy services which inter alia makes available technical knowledge, experience, skill, know-how or processing or consist of the development and transfer of a technical plan or technical design………… As regards the decision that certain support services cannot be taxable as royalty on the DTAA, the decision of the Tribunal cited by the Ld. AR will not be applicable in the present case. Decisions on ancillary and subsidiary clauses in DTAA will also be not applicable. As regards, the decision on reimbursement the Hon'ble Bombay High Court in case of Siemens Aktiongesellschaft (supra) has held that the amounts received by the assessee therein under the agreement would be royalty under the DTAA but would fall within the expression, industrial or commercial profits within the meaning of Article 3 of the DTAA. Thus, the ratio will not be applicable in the present case. Thus, Ground No. 2 is dismissed.” Printed from counselvise.com ITA Nos. 1742 & 1743/Del/2025 HEIDRICK & STRUGGLES AUSTRALIA PTY. LTD. AND HEIDRICK & STRUGGLES INC. 11 The Ld. DR reiterated the Revenue’s stand that Corporate Allocation Charges (CAC) where received for services rendered which satisfied the “make available” condition under the respective DTAA. 5. We have carefully considered the rival submissions, have gone through the orders of the authorities below and have also perused the case laws relied on by both the AR & DR. Right at the outset, it deserves to be mentioned that the issue of legal and professional services are settled in favour of the assessee by the order of coordinate bench in the case of DCIT vs. Heidrick & Struggles India Pvt. Ltd. [ITA Nos. 1021/Del/2018, 5812/Del/2018, 1022/Del/2018 & 2387/Del/2019]. It is seen that the facts are largely identical for the present two cases and thus, the relevant finding in para 11 at page 14 of this order would apply on the facts of the present two cases also. For the sake of reference, the relevant paragraph of this order is extracted as under: - “11. We have heard the rival submissions and perused the materials available on record. The issue in the present appeal is with respect to the disallowance made u/s 40(a)(ia) of the Act on account of non-deduction of TDS. We find that CIT(A) by a well reasoned and detailed order with respect to the payment made to the entity situated in USA, UK, Singapore & Australia is concerned, has given a finding that those entities from whom the service and assistance has been taken, have not made available professional expertise to the Indian entity and therefore the same do not fall within the ambit of FTS. He further observed that the Indian entity and its employees were not trained with the expertise of foreign entities and the Indian entity did not get equipped to apply the expertise of the foreign entities on their own without any assistance from foreign entity service provider. He therefore concluded that the foreign service providers situated in USA, UK, Australia and Singapore were not making available the technical skill and knowledge to the Indian entity and therefore the fees paid by Indian entity cannot be termed as fees for technical services/royalties in terms of the relevant provisions of DTAA of India with USA, UK, Australia and Singapore. He has further held that since the transaction does not qualify as FTS/Royalty under the DTAA, therefore in terms of the provisions of Section 90/90A Printed from counselvise.com ITA Nos. 1742 & 1743/Del/2025 HEIDRICK & STRUGGLES AUSTRALIA PTY. LTD. AND HEIDRICK & STRUGGLES INC. 12 of the Act, the beneficial provisions of DTAA would be applicable vis-a-vis the domestic provisions of the Act. He thus held that service rendered by the foreign entities was not fees for Technical Services as per DTAA and therefore no income was deemed to accrue or arise in India in terms of the provisions of Section 90 r.w.s 9(2) of the Act and therefore the provisions of Section 195 of the Act were not applicable and therefore no TDS was required to be deducted by the assessee.CIT(A) has also noted that in assessee’s own case on the same issue for A.Y. 2011-12, 2013-14 86 2014-15, CIT(A) have deleted the addition made by AO and have thus decided the issue in assessee’s favour. Before us, no fallacy in the findings of CIT(A) has been pointed out by Revenue. In such a situation, we are of the view that no interference in the findings of CIT(A) is called for and thus the grounds of Revenue are dismissed.” 5.1 Regarding the issue of Corporate Allocation Charges (CAC). which is relevant only for ITA 1743/D/2025, it is seen that the fact finding done by the Ld. AO does not conclusively establish the factum of the services coming true on the touchstone of the “make available” provision under the India-US DTAA. To illustrate this problem, we may extract the relevant finding of the Ld. AO, after the matter has been dealt with by the Ld. DRP: “6.2. Corporate Allocation: - Rs.4,73,09,086/- The revenue earned by the assessee from Corporate Allocation includes revenue from rendering of several technical services. Upon perusal of the intercompany agreement provided by the assessee it is observed that the assessee has been rendering various technical services including providing systems training including, but not limited to, analyzing, designing, developing and implementing learning strategies to support a wide range of learning formats (including classroom based, e-learning, and mobile learning); analyze training needs and create training classes and related training materials; review and recommend 'new and evolving research, methods and techniques related to learning; installation and maintenance of hardware, hardware and software programming (including business application systems, internal email systems, internet presence and utilization systems, and knowledge management systems), as well as communicating appropriate maintenance requirements (including the provision of proper documentation and manuals for system operations) to Recipient Company’s employees and ensuring compliance with such requirements, together with “troubleshooting” any of such employees’ information technology problems; Provide systems development including, but not limited to, the evaluation, selection, implementation and provision of Electronic Data Processing (“EDP”) solutions; provide management and other professional development training to certain members of a Printed from counselvise.com ITA Nos. 1742 & 1743/Del/2025 HEIDRICK & STRUGGLES AUSTRALIA PTY. LTD. AND HEIDRICK & STRUGGLES INC. 13 recipient Company’s staff; Providing advice on pension and fringe benefits generally. 6.2.1. It can be seen from the above that the assessee is earning revenue from rendering various technical services including training and accordingly, such revenue is chargeable to tax as per the provisions of the IT Act and the India USA DTAA, since it satisfies the “make available” clause.” A plain reading of this fact finding reveals that the nature and extent of services provided under the umbrella heading of Corporate Allocation Charges (CAC) are indeed vide ranging and fairly technical in nature. However, the Ld. AO has fallen short of conclusively determining as to how the “make available” clause of the India US DTAA is satisfied here. We have also perused the case laws provided by the assessee, especially the three cases referred supra, especially the case of AECOM Intercontinental Holdings UK Ltd. vs. ITO [2025] 175 taxmann.com 351 (Del.) (supra). In this case, the Hon’ble Delhi High Court has held, specifically on the facts of that case, that providing of Management & Governance Support Functions to its Indian AE could not be considered as FTS since there was no “make available” with respect to the technical knowledge, experience, skill, know-how, or processes to the AE. As a contrary view, again on facts, the H.J. Heinz case (supra) deals with the India US DTAA and the support services made available by that assessee to its group affiliates was held to satisfy the “make available” condition.Thus, before us there is insufficient fact finding to arrive at any conclusion whether the “make available” clause of the India US DTAA is satisfied or not. Accordingly, we deem it fit to remand this matter back to the file of the Ld. AO for fresh consideration after examining the factual matrix to see if the “make available” clause under the US-India DTAA is satisfied or not. Printed from counselvise.com ITA Nos. 1742 & 1743/Del/2025 HEIDRICK & STRUGGLES AUSTRALIA PTY. LTD. AND HEIDRICK & STRUGGLES INC. 14 6. The remaining grounds are either consequential in nature or are pre-mature. Such grounds are not specifically adjudicated through the present proceedings. 7. In the result, while appeal no.1742/Del/2025 is allowed; appeal no.1743/Del/2025 is partly allowed. Order pronounced in the open court on 18.02.2026 Sd/- Sd/- (MADHUMITA ROY) (SANJAY AWASTHI) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 18.02.2026 *Kavita Arora, Sr. P.S. Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI Printed from counselvise.com "