Coursera and the “Make Available” Clause in the India-US DTAA

The Global Learning Revolution—But Who Pays the Tax?

In the digital age, education is no longer confined to classrooms. Online platforms like Coursera have turned learning into a borderless experience. They bring Ivy League lectures to living rooms in Delhi, and data science bootcamps to coders in Bengaluru. But this seamless delivery of knowledge raises a hard question of tax: should these revenues be taxed in India?

That is the crux of the Delhi High Court’s recent decision in Commissioner of Income-tax (International Taxation) v. Coursera Inc. (2025) 174 taxmann.com 1230 (Delhi). The case turns on how “fees for included services” (FIS) are read under Article 12 of the Indo-US Double Taxation Avoidance Agreement (DTAA). It asks what it means to “make available” technical knowledge.

This is more than a technical point. It is a precedent-setting dispute over how India taxes global digital companies. Let’s unpack what happened, why it matters, and what it says about the future of cross-border digital tax.

The Core Question: Access vs. Advisory

Coursera Inc., a US-based company, runs a global online education platform. It partners with top universities and institutions to host their courses, and lets users across the globe, including India, access them for a fee.

The Revenue authorities flagged a problem here: if Indian users pay to access these services, should Coursera not pay tax in India on these earnings?

To justify taxation, the Revenue cited two provisions:

1. Section 9(1)(vii) of the Income-tax Act, 1961 – which taxes "fees for technical services" (FTS).

2. Article 12(4) of the Indo-US DTAA – which allows taxing FIS if technical knowledge, skills, or processes are “made available” to the user.

The Assessing Officer (AO) believed Coursera’s user services involved technical elements, and even training. Those services include custom landing pages, usage analytics and enterprise support. That, the AO said, was enough to qualify as FIS under the treaty.

But was it?

What “Make Available” Really Means

Here lies the key point. Under the Indo-US DTAA, not every technical service is taxed. The test is whether the service “makes available” technical knowledge or skills to the user, so the user can later use it alone.

Take a simple case. A chef cooks you a fine meal. That is a service. Now the same chef teaches you to cook the dish yourself. That is “making available” know-how. Only the second is taxable under the DTAA.

The Tribunal and the Delhi High Court found Coursera did not cross this line (the IMG case under India-UK DTAA). It gave users no knowledge or skill they could use on their own. The platform was only a digital conduit—a bridge between universities and learners.

The universities, not Coursera, created the courses. They ran the exams and issued the certificates. Coursera only enabled access. It gave no technical advice or training of its own.

The Human Touch Argument: A Red Herring?

The Revenue leaned on one key point. Coursera offered support with “human intervention”, such as training and custom user services. The Court was not convinced. It held that such intervention does not meet the “make available” test unless it lets the user work with the knowledge alone.

Assume some elements were technical. They still did not result in the transfer of technical knowledge or skills. Without that transfer, the services fell outside the tax net of Article 12(4).

A Critical Blow to Overreach by the AO

The Dispute Resolution Panel (DRP) had earlier told the AO to re-examine the nature of services based on the actual agreement Coursera signed with an Indian client, the Gandhi Institute of Technology and Management. But the AO largely ignored this direction and repeated its earlier conclusions without deeper analysis.

The Tribunal criticized this failure, and said it undermined the statutory framework. It also exposed the AO’s contradictory stance. The AO accepted that Coursera was an aggregator, yet still tried to call it a technical service provider.

Real-World Implications: What This Judgment Signals

1. Stronger Guardrails on Taxing Digital Services This case draws a line. Access-based models that don’t transfer knowledge will not be taxed as FIS under the Indo-US DTAA. That gives relief to platforms that only facilitate, without sharing knowledge.

2. Importance of Treaty Interpretation in Tech Economy The “make available” clause is a treaty-specific safeguard that can protect genuine service providers from overreach. Its strict reading makes sure that only services meant to transfer technical capability are taxed.

3. Compliance Advice for Global Platforms For platforms on similar models in India—edtech, SaaS, even some B2B services—this ruling stresses the need to clearly define the nature of services in contracts, and to make sure they do not cross into FIS territory by accident.

4. Lessons for the Revenue Authorities The decision is also a lesson in procedural discipline. Ignoring DRP directions, or stretching definitions without evidence, may not survive judicial scrutiny. The Revenue must build its case on how the service is actually delivered, not on assumptions.

Conclusion: A Win for Clarity in an Age of Digital Ambiguity

Digital platforms are changing how the world buys services. Tax law must keep up, with precision and not presumption. The Coursera judgment is about more than one company’s tax bill. It is about how countries read cross-border digital services in a connected economy.

The case confirms that mere access is not taxable, and that technical services must genuinely “enable” the recipient. That sets a vital precedent. It slows aggressive taxation of digital business models, and it shows how much the facts and the treaty wording matter in a tax dispute.

Data flows across borders; tax systems do not. This clarity from the courts is timely and necessary.