We pay reinsurance brokerage to an overseas broker who places our risk in the Lloyd's market — is that fees for technical services under the India-UK treaty?
No, on these facts. The Delhi High Court dismissed the Revenue's appeal on 23 April 2012, holding that no substantial question of law arose. The Tribunal had found on the evidence that the overseas reinsurance broker was doing no more than acting as an intermediary — obtaining competitive proposals from Lloyd's syndicates, passing communications, submitting the slip to the market for signing and administering claims — and that nothing was made available to the Indian insurer within Article 13(4)(c) of the India-UK DTAA. The High Court held those to be findings of fact, and counsel for the Revenue could point to no perversity in them, so section 260A gave no scope to interfere.
Decided by the High Court (Delhi High Court; Badar Durrez Ahmed and V.K. Jain JJ, oral judgment delivered by Badar Durrez Ahmed J) on 2012-04-23, reported as ITA No. 202/2012 (Delhi High Court). It bears on section 9(1)(vii), section 260A, section 90 of the Income Tax Act 1961, in Residence & Treaty Benefit and Appeals matters.
Two uses, and it is important not to overstate the first. On substance, the decision leaves standing a Tribunal finding that reinsurance brokerage paid to an overseas intermediary is neither technical nor consultancy service, and that the make available condition in Article 13(4)(c) is not met merely because the Indian insurer gains a better understanding of the international market from the broker's proposals. That is useful in any treaty with a make available clause. But the High Court decided the appeal on the appellate point, and that is the second and firmer use: where the Tribunal has examined the contract and the process and returned a finding on the character of a service, the Revenue must demonstrate perversity to get through section 260A. Framing four questions about the correct treaty characterisation will not convert a factual finding into a question of law.
Binding within that High Court's jurisdiction. Persuasive elsewhere.
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The assessee is a UK tax resident and an international reinsurance broker recognised by the UK financial services authority. It keeps no office in India and has a referral relationship with J.B. Boda Reinsurance Brokers Pvt Ltd of Mumbai, licensed by the IRDA. For assessment year 2006-07 it returned nil taxable income. On scrutiny the Assessing Officer found it had received commission from New India Assurance, Tata AIG, General Insurance Corporation, Agriculture Insurance, HDFC CHUBB, IFFCO Tokio and Oriental Insurance. The agreement examined was with New India Assurance for catastrophic excess of loss cover, entered in conjunction with J.B. Bodaand other brokers. The Indian insurer approached J.B. Boda, which approached overseas brokers such as the assessee, which sought competitive proposals from Lloyd's syndicates; the Indian insurer chose. Brokerage of 10 per cent was shared among the intermediaries. The assessee's people visited India for about fifteen days a year. On a notice under section 133(6) New India Assurance said the broker made no presentations and that correspondence and accounts passed only through it. The Assessing Officer held the commission to be fees for technical services under section 9(1)(vii) and Article 13(4)(c); the Commissioner (Appeals) agreed; the Tribunal reversed.
The Revenue's appeal was dismissed with no order as to costs. None of the four questions proposed was a substantial question of law. The issues were factual and had been determined by the Tribunal, which is the final fact-finding authority under the Act, and counsel for the Revenue was unable to point to any perversity in its findings. The Tribunal had found that the assessee acted only as an intermediary or facilitator in obtaining reinsurance cover, that there was no material to say it rendered any technical or consultancy service within Article 13 of the India-UK treaty, and that the consideration could not be characterised as payment for financial analysis, rating agency advisory work or risk-based capital analysis as the Assessing Officer had alleged. It had also found that the make available condition in Article 13(4)(c) was not satisfied, no technical knowledge, experience, skill, know-how or process having been made available and no technical plan or design developed and transferred.
The High Court's own reasoning is short and confined to the scope of section 260A. An appeal lies only on a substantial question of law; whether a particular payment is consideration for technical or consultancy services, and whether anything was made available to the payer, are conclusions drawn from the contract, the correspondence and the transaction flow, and the Tribunal is the last authority on those. Absent a demonstrated perversity, the High Court will not reopen them. The Court then set out at length the material on which the Tribunal had proceeded, to show that the findings were grounded. Article 13(4)(c) was reproduced: fees for technical services means payment for rendering technical or consultancy services which make available technical knowledge, experience, skill, know-how or processes, or consist of the development and transfer of a technical plan or design. The Tribunal's paragraph 27 was set out, recording the broker's actual role — recognised as the channel for all communications, providing details of agreed endorsements by e-mail or fax, submitting the slip to Lloyd's processing market for signing, acting as claims administrator — and its conclusion that this is intermediation and nothing more. The Court also set out the five-step transaction flow and the ratio in which the 10 per cent brokerage was shared. Having recited that material, it held the conclusions to be purely an assessment of the factual matrix, and dismissed the appeal.
Unless and until some perversity in a finding of fact returned by the Tribunal is pointed out, there is no scope for interference by this court under section 260A of the said Act.
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Handle my notice → Ask a CA on WhatsAppNo, on these facts. The Delhi High Court dismissed the Revenue's appeal on 23 April 2012, holding that no substantial question of law arose. The Tribunal had found on the evidence that the overseas reinsurance broker was doing no more than acting as an intermediary — obtaining competitive proposals from Lloyd's syndicates, passing communications, submitting the slip to the market for signing and administering claims — and that nothing was made available to the Indian insurer within Article 13(4)(c) of the India-UK DTAA. The High Court held those to be findings of fact, and counsel for the Revenue could point to no perversity in them, so section 260A gave no scope to interfere. This was decided by the High Court (Delhi High Court; Badar Durrez Ahmed and V.K. Jain JJ, oral judgment delivered by Badar Durrez Ahmed J) and bears on section 9(1)(vii), section 260A, section 90 of the Income Tax Act 1961. It is reported as ITA No. 202/2012 (Delhi High Court). Two uses, and it is important not to overstate the first. On substance, the decision leaves standing a Tribunal finding that reinsurance brokerage paid to an overseas intermediary is neither technical nor consultancy service, and that the make available condition in Article 13(4)(c) is not met merely because the Indian insurer gains a better understanding of the international market from the broker's proposals. That is useful in any treaty with a make available clause. But the High Court decided the appeal on the appellate point, and that is the second and firmer use: where the Tribunal has examined the contract and the process and returned a finding on the character of a service, the Revenue must demonstrate perversity to get through section 260A. Framing four questions about the correct treaty characterisation will not convert a factual finding into a question of law. If it applies to you, the first step is this: Put the agreement and a step-by-step description of the process on record at the assessment stage, as this assessee did; the whole case was won on the Tribunal's reading of what the broker actually did.
The assessee is a UK tax resident and an international reinsurance broker recognised by the UK financial services authority. It keeps no office in India and has a referral relationship with J.B. Boda Reinsurance Brokers Pvt Ltd of Mumbai, licensed by the IRDA. For assessment year 2006-07 it returned nil taxable income. On scrutiny the Assessing Officer found it had received commission from New India Assurance, Tata AIG, General Insurance Corporation, Agriculture Insurance, HDFC CHUBB, IFFCO Tokio and Oriental Insurance. The agreement examined was with New India Assurance for catastrophic excess of loss cover, entered in conjunction with J.B. Bodaand other brokers. The Indian insurer approached J.B. Boda, which approached overseas brokers such as the assessee, which sought competitive proposals from Lloyd's syndicates; the Indian insurer chose. Brokerage of 10 per cent was shared among the intermediaries. The assessee's people visited India for about fifteen days a year. On a notice under section 133(6) New India Assurance said the broker made no presentations and that correspondence and accounts passed only through it. The Assessing Officer held the commission to be fees for technical services under section 9(1)(vii) and Article 13(4)(c); the Commissioner (Appeals) agreed; the Tribunal reversed. The matter was decided on 2012-04-23 by the High Court (Delhi High Court; Badar Durrez Ahmed and V.K. Jain JJ, oral judgment delivered by Badar Durrez Ahmed J). On those facts the High Court held as follows. The Revenue's appeal was dismissed with no order as to costs. None of the four questions proposed was a substantial question of law. The issues were factual and had been determined by the Tribunal, which is the final fact-finding authority under the Act, and counsel for the Revenue was unable to point to any perversity in its findings. The Tribunal had found that the assessee acted only as an intermediary or facilitator in obtaining reinsurance cover, that there was no material to say it rendered any technical or consultancy service within Article 13 of the India-UK treaty, and that the consideration could not be characterised as payment for financial analysis, rating agency advisory work or risk-based capital analysis as the Assessing Officer had alleged. It had also found that the make available condition in Article 13(4)(c) was not satisfied, no technical knowledge, experience, skill, know-how or process having been made available and no technical plan or design developed and transferred.
The High Court's own reasoning is short and confined to the scope of section 260A. An appeal lies only on a substantial question of law; whether a particular payment is consideration for technical or consultancy services, and whether anything was made available to the payer, are conclusions drawn from the contract, the correspondence and the transaction flow, and the Tribunal is the last authority on those. Absent a demonstrated perversity, the High Court will not reopen them. The Court then set out at length the material on which the Tribunal had proceeded, to show that the findings were grounded. Article 13(4)(c) was reproduced: fees for technical services means payment for rendering technical or consultancy services which make available technical knowledge, experience, skill, know-how or processes, or consist of the development and transfer of a technical plan or design. The Tribunal's paragraph 27 was set out, recording the broker's actual role — recognised as the channel for all communications, providing details of agreed endorsements by e-mail or fax, submitting the slip to Lloyd's processing market for signing, acting as claims administrator — and its conclusion that this is intermediation and nothing more. The Court also set out the five-step transaction flow and the ratio in which the 10 per cent brokerage was shared. Having recited that material, it held the conclusions to be purely an assessment of the factual matrix, and dismissed the appeal. In the words reproduced by the source cited on this page: "Unless and until some perversity in a finding of fact returned by the Tribunal is pointed out, there is no scope for interference by this court under section 260A of the said Act."
It was decided by the High Court on 2012-04-23 and is reported as ITA No. 202/2012 (Delhi High Court). Binding within that High Court's jurisdiction. Persuasive elsewhere. A High Court decision binds the assessing officer, the Commissioner (Appeals) and the Income Tax Appellate Tribunal within that state, and is persuasive elsewhere. If your assessment is in a different jurisdiction, check whether your own High Court has taken the same view before relying on it. On section 9(1)(vii), section 260A, section 90, the practical question is whether the facts of your own notice match the facts of this case closely enough for the same rule to apply.
It helps the taxpayer. The Revenue's appeal was dismissed with no order as to costs. None of the four questions proposed was a substantial question of law. The issues were factual and had been determined by the Tribunal, which is the final fact-finding authority under the Act, and counsel for the Revenue was unable to point to any perversity in its findings. The Tribunal had found that the assessee acted only as an intermediary or facilitator in obtaining reinsurance cover, that there was no material to say it rendered any technical or consultancy service within Article 13 of the India-UK treaty, and that the consideration could not be characterised as payment for financial analysis, rating agency advisory work or risk-based capital analysis as the Assessing Officer had alleged. It had also found that the make available condition in Article 13(4)(c) was not satisfied, no technical knowledge, experience, skill, know-how or process having been made available and no technical plan or design developed and transferred. It arises in Residence & Treaty Benefit and Appeals matters, on section 9(1)(vii), section 260A, section 90 of the Income Tax Act 1961, and was decided by Delhi High Court; Badar Durrez Ahmed and V.K. Jain JJ, oral judgment delivered by Badar Durrez Ahmed J. Before relying on it, read the source linked on this page and check whether it has since been distinguished, overruled or overtaken by an amendment to the Income Tax Act. In practice the steps that follow from it are these. Show what the recipient can and cannot do for itself afterwards — the make available test asks whether technical knowledge, skill or a technical plan passed to the payer, not whether the service was skilled. Do not let the department's reliance on your website or on general market awareness stand unanswered; here the Indian insurer's own reply under section 133(6) confirmed that no presentations were made and correspondence went only through the broker. If you win before the Tribunal on facts, resist the appeal on section 260A grounds first and require the Revenue to show perversity rather than arguing the treaty afresh.
Still good law. The citator is thin - only 3 later decisions - but the support is from the same Court and recent. In Tungsten Automation England Limited v DCIT (Delhi High Court, 14 July 2025) the Bench took the judgment up itself at para 39: 'In Director of Income-tax v. Guy Carpenter & Co. Ltd., this court considered the question whether the consideration for services rendered by Guy Carpenter & Co. Ltd. - a tax resident of UK - to Indian insurance company in the process of reinsurance of risk would amount to FTS under the India-UK DTAA', recorded that 'the Court concurred with the interpretation of Clause (c) of Paragraph 4 of Article 13 of the India-UK DTAA', and reasoned from the make-available test to hold that 'Technical knowledge and skill would necessarily have to remain with the person receiving the services even after the contract for the said services had come to an end if the consideration for services were to qualify as FTS'. The Delhi Bench of the Tribunal applied the same reading in Nokia India Pvt Ltd (8 July 2015). Watch one hit that is not support: in Nord Anglia Education Limited v DCIT (Delhi High Court, 14 January 2026) it appears at para 9 only in the list of authorities counsel said the Tribunal had relied on, and the matter was remanded under Rule 28AA without the Bench taking it up. Nothing overruling, doubting or confining the judgment was found. No source could be cited for that finding. Checking whether an authority still stands matters as much as knowing what it held: a decision may be overruled on one point and survive on another, or the provision it interprets may have been amended since. Read the source and the editor's note on this page before relying on it in a reply to an Assessing Officer or in an appeal.
The full judgment text was harvested and read, and the source printed no reporter citations, so the case number is used. The important limit is on what this authority actually holds. The High Court did not itself construe Article 13(4)(c) or section 9(1)(vii); it recited the Tribunal's findings and held them to be findings of fact not open under section 260A. Anyone citing it for the make available proposition is citing the Tribunal through the High Court, not a High Court ruling on the point. The judgment also does not deal with the permanent establishment question beyond noting the assessee's claim that fifteen days of visits a year fell short of the threshold in Article 5(2)(k), and it gives no figures for the commission received. This library shows the verification state of every entry openly. This entry has not yet been read in full by a chartered accountant. The summary reflects the sources listed on this page. Read the source before you rely on it in a reply to an Assessing Officer or in an appeal before the Commissioner (Appeals) or the Income Tax Appellate Tribunal.
The Revenue's appeal was dismissed with no order as to costs. None of the four questions proposed was a substantial question of law. The issues were factual and had been determined by the Tribunal, which is the final fact-finding authority under the Act, and counsel for the Revenue was unable to point to any perversity in its findings. The Tribunal had found that the assessee acted only as an intermediary or facilitator in obtaining reinsurance cover, that there was no material to say it rendered any technical or consultancy service within Article 13 of the India-UK treaty, and that the consideration could not be characterised as payment for financial analysis, rating agency advisory work or risk-based capital analysis as the Assessing Officer had alleged. It had also found that the make available condition in Article 13(4)(c) was not satisfied, no technical knowledge, experience, skill, know-how or process having been made available and no technical plan or design developed and transferred.
TaxSphere, “DIT v Guy Carpenter & Co Ltd”, https://taxnotice.vittsphere.com/caselaw/case/dit-v-guy-carpenter-co-ltd/ (validity last checked 2026-08-29)
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