Fees for Technical Services and the Absence of ‘Make Available Clause’ in Tax Treaties: Can a Protocol Not Notified by the Government Trigger the ‘Most Favoured Nation Clause’?

Abstract

The recent decisions of some courts in India to do away with the requirement of notification of a protocol, attached to a tax treaty, for its implementation, has raised serious concerns with regards to the interplay of international law vis-à-vis the municipal law of India. The object of this article is to critically reflect on the existing jurisprudence and constitutional provisions in India, along with the extant international practices. This article tends to argue that the recent judicial approaches reflect a manifest error of law, both in terms of national as well as international practices.