PERMANENT ESTABLISHMENT

Gaurav Shanker    |   

INTRODUCTION

India, an emerging economy, is experiencing high growth in infrastructure, contract manufacturing and real estate development. Investment into these sectors has risen considerably but not without its share of tax consequences. When a foreign enterprise undertakes any work in India involving construction, assembly, installation or commissioning of any building or project or supervision of such contracts, a question arises whether these activities create a Permanent Establishment (PE) of such foreign enterprise in India. This issue assumes great significance since a PE situation may lead to corporate tax obligations, which has direct bearing on the cost of executing projects in India.

It is settled position in law that a foreign enterprise can only be taxed on its business income if it has established a PE in India. PE generally refers to a fixed place of business. It includes a construction site and installation project provided such activities last more than the specified period.

The concept of PE has acquired tremendous importance in recent times as it determines taxability of a foreign company in India. Usually, foreign companies get tax concession under Double Taxation Avoidance Treaties and they pay taxes in their home countries. But if they have PEs in India, they should pay taxes for the income they have created in India. Thus PE makes a foreign companies’ Indian income taxable in India.

In order to avoid double taxation it is provided that if a resident of India becomes liable to pay tax either directly or by deduction in the other country in respect of income from any source, he shall be allowed credit against the Indian tax payable in respect of such income in an amount not exceeding the tax borne by him in the other country on the portion of the income which is taxable in the other country. The same benefit is available to the resident of the other country, on income taxed in India.

Therefore, PE is considered as a non-resident in India and its net income or profits are taxed at a prescribed rate. The unintended creation of a PE is a continuing and growing concern for foreign enterprises. As far as possible, foreign enterprises should arrange their affairs in India in a manner that their activities do not create a PE in India.

However, there may be circumstances where creation of a PE is unavoidable. In such cases, it is advisable to maintain substantive documentation to ensure that only the income arising through such PE gets taxed in India. Besides entering into separate contracts towards onshore and offshore portion of supply and services, the foreign enterprises must ensure that PE is not instrumental in performance of contracts which are outside its purview (such as offshore supplies and services). It is equally important that each project is dealt independently and taxability arises only in respect of such contract which results into a PE.

 

PERMANENT ESTABLISHMENT

Permanent Establishment (PE) is defined as a fixed place of business where the business of the enterprise is wholly or partly carried out by a foreign enterprise operating in India. The term PE occurs in all the Double Taxation Avoidance Agreement (DTAA), it includes a wide variety of arrangements i.e. a place of management, a branch, an office, a factory, a workshop or a warehouse, a mine etc.

“The words “Permanent Establishment” postulate the existence of a substantial element of an enduring or permanent nature of a foreign enterprise in another, which can be attributed to a fixed place of business in that country. It should be of such a nature that it would amount to a virtual projection of the foreign enterprise of one country onto the soil of another country.”1 There has to be a business connection between an entity in India and a non-resident entity for the existence of a PE in India. The term business connection in a nutshell is usually a business activity carried out by an entity, acting on behalf of a non-resident entity. The resident entity should either habitually exercise an authority to conclude contract on behalf of the nonresident entity or should habitually secure order on behalf of the non-resident entity. Alternatively, it should, with or without authority from the non-resident entity, maintain a stock of goods or merchandise from which they are delivered on behalf of the non-resident entity. The Supreme Court of India (“SC”) has explained business connection to mean something more than a business activity wherein an element of continuity is presupposed. A stray or isolated transaction is normally not regarded as a business connection. A business connection must be real and intimate and through or from which income must accrue or arise whether directly or indirectly to the non-resident.

Hence, to establish a PE in India, the first requirement is to have a defined location for the operation in India, the second one is to have a degree of permanence vis-a-vis business connection between a non-resident entity and its PE in India, with the third one being the essence of time. However, mere presence of all the three requirements does not entail the establishment of a PE in India. In other words, the concept of PE cannot be blindly applied. An example of such blind application would be a branch or office of a non-resident entity having no business activity. The fact that there is a physical establishment within the meaning of the definition of PE does not foist any liability. For e.g. many multinational companies as a matter of prestige have letter heads and postal heads of a country where they have no business activity. In such cases, there is no liability of a PE.

 

ATTRIBUTION OF BUSINESS PROFITS TO PERMANENT ESTABLISHMENT

Under Indian tax laws, if a non-resident has a business connection in India, profit attribution is only permissible on the part of its income that is ‘reasonably attributable’ to its operations in the country. Furthermore, if its business is carried out through a dependent agent profit attribution to the dependent agent is only permissible on the income attributable to the operations it carries out in India2.

In order to determine the appropriate level of profits to be attributed to the PE, a methodology for attribution of profit has been provided in the Income-tax Rules3. Computation of business profits should be in consonance with the principle of arm’s length price4. Arm’s length transactions are transactions carried out between two unrelated entities.

Indian Transfer Pricing (TP) provisions are applicable for international transactions between two are more associated enterprises (AEs)5. The definition of an ‘enterprise’ under Indian tax laws denotes and includes a PE. It can be deduced that if transactions between the non-resident entity and the PE are at arm’s length from the inception, there are no profits attributable to a PE from its work done on behalf of the non-resident entity. Calculation of business profits attributable to a PE is fact specific.

 

TYPES OF PERMANENT ESTABLISHMENT IN INDIA

Fixed Place PE: A Fixed Place PE may be constituted if the foreign entity has a fixed place of business in India, such as an office, a branch, a sales outlet, a warehouse etc. in India.

Agency PE: An agency PE may be constituted if the non-resident appoints an agent in India who signs contracts on its behalf or secure orders for such non-resident or maintains stock of goods or merchandise from which he regularly delivers goods or merchandise on behalf of such non-resident.

Service PE: A Service PE is established if the non-resident delivers services for longer than the prescribed threshold of 183 days and the said services are furnished in the source country through the employees or other personnel of the non-resident.

 

FIXED PLACE PERMANENT ESTABLISHMENT

The starting point for determination if a permanent establishment exists is generally a fixed place of business. A fixed place of business has three components:

  • Fixed refers to a link between the place of business and a specific geographic point, as well as a degree of permanence with respect to the taxpayer. An "office hotel" may constitute a fixed place for a business for an enterprise that regularly uses different offices within the space. By contrast, where there is no commercial coherence, the fact that activities may be conducted within a limited geographic area should not result in that area being considered a fixed place of business.
  • A place of business. This refers to some facilities used by an enterprise for carrying out its business. The premises must be at the disposal of the enterprise. The mere presence of the enterprise at that place does not necessarily mean that it is a place of business of the enterprise. The facilities need not be the exclusive location, and they need not be used exclusively by that enterprise or for that business. However, the facilities must be those of the taxpayer, not another unrelated person. Thus, regular use of a customer's premises does not generally constitute a place of business.
  • Business of the enterprise must be carried on wholly or partly at the fixed place.

However, it would be pertinent to note that the requirements of what constitutes a 'permanent establishment' within the scope of a particular treaty would depend on what interpretation a particular country places on that term, in context of the text of that treaty. Therefore if a particular contracting state places a different meaning on the term permanent establishment than what the taxpayer seeks to place, the taxpayer would be left with virtually no remedy within that state, other than to seek a mutual agreement to that dispute with the other contracting state to that treaty.

Specifically included Places

The following are generally considered, prima facie, as constituting permanent establishments:

  • A branch
  • A warehouse (but see excluded places below)
  • A factory
  • A mine or place of extraction of natural resources
  • A place of management

Specifically excluded Places

The India-USA DTAA explicitly exclude from the definition of PE places where certain activities are conducted. Generally, these exclusions do not apply if non-excluded activities are conducted at the fixed place of business. Among the excluded activities are:

  • Ancillary or preparatory activities
  • The use of a storage facility solely for delivery of goods to customers
  • The maintenance of a stock of goods owned by the enterprise solely for purposes of processing by another enterprise (sometimes referred to as toll processing)
  • Purchasing or information gathering activitie

Attribution of Profit to a Fixed Place Permanent Establishment

In case of a fixed place PE, profit attribution is carried out as follows:

Step 1

A functional and factual analysis is conducted to hypothesise the PE as a separate and distinct entity. This analysis is undertaken to identify the part of the foreign enterprise that manages specific risks and owns particular assets. It requires identification of the Significant People Function (SPF), recognition and determination of the nature of dealings between the PE and the other constituents of the enterprise, and ensures adequate capital attribution to the PE, based on its risks and assets.

Step 2

The arm’ length remuneration is ascertained by determination of the ‘comparability’ between the dealings of the PE and its Head Office (HO), as well as uncontrolled transactions and selection and application of the most appropriate TP method (aligned with its dealings).

If the results of Step 1 determine that a PE is engaged in routine dealings with its HO and it does not undertake any SPF, it is entitled to routine remuneration for its services, since all its SPF- related decisions are taken by the HO and it neither assumes any significant risk nor owns any assets of note. On the basis of Step 2, the cost and arm’s length mark-up adequate is determined for such a PE.

A fixed place PE is entitled to a higher proportion of the remuneration if it is identified at Step 1 that it is undertaking certain SPF, owns assets and assumes risks. A detailed comparability analysis in the form of Step 2 is required to determine the arms’ length consideration of such dealings. It is important to note that the profit attribution approach does not deal with the issue of whether certain expenses are deductible when computing profits attributable to a PE, since such matters are subject to domestic law.

 

AGENCY PERMANENT ESTABLISHMENT

An agency PE may be constituted if the non-resident of India appoints an agent in India who signs contracts on its behalf; or secure orders for such non-resident; or maintains stock of goods on behalf of such non-resident. Under Article 5 of the Double Taxation Avoidance Agreement between India and US, an agency PE will be constituted where a non-resident enterprise doesn’t have its own establishment in India, but it works through an agent in India.

India’s tax treaties provide for constitution of an Agency PE where a dependent agent undertakes certain activities in India on behalf of a foreign company.

The primary condition for constituting an Agency PE in India is the establishment of an ‘agency relationship’ between a foreign company (principal) and its representative in India (agent), i.e., it is necessary that the agent will act on behalf of the foreign company in India.

Under Article 5(5) of DTAA where an enterprise doesn’t have its own establishment, it could have a PE through an agent provided the following tests are satisfied:

Objective Tests

Against the requirement of a place of business under the basic rule, the agency rule requires the presence of an agent. Any person, whether an individual or a company, could be an agent. It is not necessary that the agent should be resident of India.

The agent should be authorised to conclude contracts on behalf of the principal. The authority may be general or specific or limited. However, it should be such that the agent’s action would bind the enterprise. The authority should be with respect to business of the enterprise. Normally, solicitation of business and negotiation of contracts that are subject to the approval of the principal would not constitute agency PE. The authorisation should be construed in substance and not in form. Thus, if an agent has the authority to negotiate all parts of the contract in a manner, which is binding on the principal but the contract is signed outside the India, the agent could be said to have the authority to conclude contract.

Agency PE could come into existence even if the agent has no authority to conclude contracts but he habitually maintains stock of goods from which he regularly delivers goods on behalf of the enterprise. Again, the term ‘habitually’ indicates that the stocking should be repeated. Also, the term ‘regularly’ indicates that the delivery should not be on an exceptional basis.


Subjective Tests

Only agents who are dependent upon the principal may constitute a PE. The dependency would, generally, be commercial dependency. Thus, assurance as regards the agent’s expenses, minimum guaranteed remuneration, etc. would indicate commercial dependency. Another instance would be a case where the agent has only one principal and devotes all his time to this principal.

Functional Tests

The authority to bind the principal should be for the purposes which are essential and significant to the principal’s business and not for administrative purposes such as conclusion of contracts for stationery, rent, office, cleaning or manpower contracts. Mere fact that the agent has the authority to conclude contract would result in agency PE. It is also necessary that the agent habitually exercise such authority. The term ‘habitually’ indicates that the authority should be used repeatedly and not merely in isolated instances.

The requisites to be present for being an Independent Agent are as follows:

  • The agent should be acting in the ordinary course of his business;
  • The agent’s activities should not be devoted wholly or almost wholly on behalf of the foreign enterprise for whom he is acting as an agent;
  • The transactions between the foreign enterprise and the agent should be at Arm's Length.

Activities of Agency PE

An agency PE can be constituted in India if a dependent agent undertakes any of the following activities in the country on behalf of its foreign principal:

  • Conclusion of contracts6: The PE has the authority to conclude contracts on behalf of the foreign company and it habitually exercises this power, such a contract will binding for the foreign company and the agent decides the final terms of the contract. An agent can also act independently and finalise contracts on behalf of a foreign company. The agent shall be authorised to negotiate the terms of the contract, which will again be binding on the foreign company.
  • Maintenance of stock of goods: An agency PE can be constituted in India if a dependent agent habitually maintains a stock of goods in India and regularly delivers this on behalf of the foreign company. The term ‘habitually’ indicates that the stocking should be repeated. Also, the term ‘regularly’ indicates that the delivery should not be on an exceptional basis.
  • Securement of orders7: The agency PE should regularly secure orders (wholly or almost wholly) for the foreign company or its group companies in India. If it does so then it will be called an agency PE in India.

A dependent agent within Article 5 of the Double taxation Avoidance Agreement will constitute a PE. A dependent agent is legally separate from the enterprise (principal to agency relationship) for whom it is acting. Agency PE arises when the agent is empowered to enter into or conclude the contracts and carryout jobs exclusively for its principal and take instructions from time-to- time and report.

The activities of a dependent agent may give rise to a PE for the principal. However, if the enterprise carries on business through an independent agent such as a broker or general commission agent such person will not constitute a PE of the enterprise.

Agency PE – Indicative Factors

 

What may lead to an Agency PE

What may not lead to an Agency PE

 

  • Entering into a binding contract with the end customer.
  • Habitual maintenance of stock of goods & regular delivery thereof.
  • Negotiate the final terms of the contract.
  • Sign any contract or any similar document indicating an ability to bind the foreign enterprise.
  • Habitually securing orders.

 

 

  • Identifying potential clients.

 

  • Assist in negotiations but not bind foreign Company in any way.

 

  • Assistance with review of agreements to be entered into with end custom.

Attribution of Profits to an Agency Permanent Establishment

In the case of an Agency PE, India has taxing rights over two different legal entities — the dependent agent enterprise (or the intermediary) and the dependent agent PE. Principally, the profit attributable to the PE is different from the arm’s length return for the intermediary, and can be either greater or less than the latter.

A functional and factual analysis will be required to evaluate the functional and risk profile of the intermediary and determine the additional functions or risks that are to be attributed to the PE. A dependent agent permanent establishment’s (DAPE) arm’ length remuneration will need to be ascertained by a comparison of the dealings of the entities and transactions between associated enterprises, and selection and application of the most appropriate method to examine of these dealings. It is important to note that the profit attributable to a DAPE is not equivalent to the arm’s length return for an intermediary, but it is the arm’s length return

for the assets and risks of the DAPE in respect to the agency-related activity performed by a dependent agent on behalf of the foreign taxpayer. The profit attributable to the DAPE if is greater than the arm’s length profits of the intermediary, the difference will be taxed in the hands of the former.

The establishment of Agency PE due to the activities and actions of employees in India was extensively discussed in Motorola Inc. V. Deputy CIT8. In this case, the employees of the company were in the habit of negotiating and concluding contracts in India while acting for the Indian subsidiary. Though the matter was disposed off due to want of clear evidence, the establishment of a PE in the form of an agency was admitted by the assessee later in an agreement with the tax authorities. Hence, the income generated by the non-resident entity on account of conclusion of contracts was attributable to the Agency PE.

 

SERVICE PERMANENT ESTABLISHMENT

India’s tax treaties provide that the Service PEs of foreign companies can be constituted in India if these enterprises provide services in the country through their employees or other personnel working under their control and supervision for a period exceeding the threshold delineated in specific tax treaties. Services may be rendered to an associated enterprise of the service provider or a third party service recipient.

Place of provision of services plays an important role in determining where the PE exists. However, the persons rendering the services and the persons availing the services may be in different locations. Merely having an employee in other country does not create Service PE if employee is not providing service to 3rd party but only to employer.

Some key concepts to be considered are:

  • Stewardship-related activity - It refers to the activities of a foreign company that are undertaken with the primary objective of protecting its interests. These can include a wide range of activities, depending on the requirements of the Indian group company. Some of the stewardship related activities are conducting checks on quality of goods and services and reviewing business activities to ensure that the output meets the requisite requirements and guiding the Indian group company on conduct of its business activities.
  • Secondment of employees to India - Secondment means deputation of employees by a foreign company to its Indian group company, based on the latter’s requirements. Seconded employees work solely under the direction, control and supervision of the Indian company, and they only undertake activities for it. Typically, under a secondment arrangement, an Indian company is the ‘economic employer’, while the foreign one continues to be such employees’ ‘legal employer’.
  • Services provided by other personnel - Service PE can be constituted if services are provided by “other personnel” who are not a company’s employees, but are under the control and supervision of a foreign company. It generally refers to people who work

under the directions of a foreign company. Therefore, services provided by such personnel in India on behalf of a foreign company can constitute a PE of the company in India, depending on the nature of services they provide.

  • Fees for technical services - Some of India’s tax treaties mandate that a Service PE cannot be constituted in India when services provided by foreign companies and the consideration received qualify as FTS or Fees for Included Services (FIS), as defined in applicable tax treaties. This is a measure to ensure minimal levy of tax on such transactions in order to attract technical experts to India from abroad. However, where the tenure of such employees in India is for a long duration, a fixed place PE may be constituted in the country, depending on the nature of activities undertaken in it.
  • Duration test - To determine whether a Service PE of a foreign company can be constituted in India, it is essential to compute the number of days its employees have been present in the country, in order to determine whether the threshold mandated in the tax treaties has been complied with. There are two mechanisms for calculating this – workforce days and solar days. Workforce days refers to the calculation of the presence of a foreign company in India, based on its number of employees in the country as well as the duration of their presence (in days) in it. Whereas, solar days refers only to the number of days the employees of a foreign company have been present in India, irrespective of its number of employees in the country.

Usually, the solar days concept is used to compute the presence of a foreign company’s employees in India to determine whether their presence in the country makes it eligible to constitute a Service PE.

Attribution of profits to a Service Permanent Establishment

The concept of profit attribution in the case of a Service PE is somewhat similar to that of a Fixed Place PE (if seconded employees are providing services to an Indian company under the control and supervision of a foreign enterprise) or a DAPE (if services are provided by an intermediary constituting ‘other personnel’).

Depending on the significance of the functions performed by the employees constituting the PE, either cost plus-based, revenue, profit split or profit based attribution may be adopted.

Where ‘other personnel’ are rendering services on the directions of or on behalf of a foreign enterprise, the profile of the intermediary and that of the Service PE need to be differentiated. Accordingly, there may be attribution of additional profits beyond the amount the intermediary earns as arm’s length remuneration, depending on whether ‘other personnel’ (constituting a Service PE) perform an SPF for assumption of risks and ownership of assets.

The principles of profit attribution not only focus on the functions performed by a PE, but also on the intangible assets it owns or uses, which typically emanate from the service contract under which such activities are being carried out.

 

PERMANENT ESTABLISHMENT AND TAXATION

The central government of India has entered into an agreement for avoidance of double taxation with the government of any country outside India or specified territory outside India for the purpose of taxation of income accrued by a non-resident in India. The assessee has the option to apply the provisions under Double Taxation Avoidance Agreement (DTAA) or the Income Tax Act, whichever are more beneficial to him9, for paying taxes in India.

For example: If under the Act, royalty is taxable at 15%, but under DTAA, royalty is taxable at 10%, then the assessee can opt for beneficial rate of 10% under DTAA and the provisions of DTAA shall override the act. However, for claiming treaty benefits, Tax Residency Certificate is required to be produced from the Government of resident country.

 

BASE EROSION AND PROFIT SHIFTING

Base erosion and profit shifting (BEPS) refers to tax planning strategies used by multinational companies that exploit gaps in tax rules to artificially shift profits to low or no-tax locations. This can be best understood with an example.

ABC Inc. (US company) is trying to sell goods to PQR Ltd. (Indian Co.) at a price higher than what it is charging to an independent party XYZ. Accordingly PQR can claim deduction of higher expenses in India, where tax rate is high and shift the profit to US, where tax rate is low. This is known as base erosion and profit shifting (BEPS).

TRANSFER PRICING

Transfer pricing provisions were introduced with a view to provide statutory framework for reasonable, fair and equitable profits and tax in India in case of multinational enterprises. TP provisions enable India to compute Arm’s Length Price (i.e. price that would be charged to independent buyer) and substitute transaction price (price between associated enterprises) with arm’s length price, if transaction price charged between associated enterprises leads to evasion of income & base erosion. Therefore, to curb such base erosion and profit shifting, TP provision were introduced in the statute.

TRANSFER PRICING PROVISIONS ARE APPLICABLE IF THE FOLLOWING CONDITIONS ARE FULFILLED

  • The transaction should be between two or more ASSOCIATED ENTERPRISES.
  • There should be an INTERNATIONAL, DEEMED INTERNATIONAL OR SPECIFIED DOMESTIC TRANSACTION between the associated enterprises.
  • The transaction should not be at ARM’S LENGTH PRICE.

For the applicability of transfer pricing, international transaction shall include income, allowance for expense and interest accrued. And specified domestic transaction shall include income, allowance for expense, allocation of cost or expense and interest accrued.10

Indian TP provisions are applicable for international transactions between two are more associated enterprises (“AEs”). International transactions between a PE and its principal company need to follow the transfer pricing norms prevalent in India. The fundamental of TP provisions is that transfer price should represent the arm’s length price of goods transferred and services rendered from one unit to another. Therefore, application of TP principles on attribution of profit to PEs explicit and indicates that the transactions between PEs and foreign taxpayers are to be undertaken at Arm’s Length principles.

The TP norms state that income arising from international transactions between associated enterprises should be computed having regard to the Arm’s Length Price (“ALP”). ALP means fair price of goods transferred or services rendered. ALP is a price which is applied or proposed to be applied in a transaction between persons other than associated enterprises, in unconditional situations. It’s basically the price that would have been charged if the two persons were not related to each other.

 

NON-APPLICABILITY OF TRANSFR PRICING PROVISIONS

Transfer pricing provisions shall not apply in case where the adoption of arm’s length price (ALP) shall result in:

 

  • Decrease in the overall Taxable Income
  • Increase in the loss

 

It is pertinent to note that the TP provisions are intended to avoid erosion of tax base in India through claiming of expenses and losses. However, in case, where by applying ALP, there is reduction in taxable income or increase in loss, TP provisions shall not apply.

 

CASE STUDY

  • In a landmark judgment of DIT vs. E Funds Corporation & DIT vs. E Funds IT Solutions11, the issue to be decided was whether the taxpayers had a permanent establishment in India under Article 5 of the India- US DTAA. It was held that Indian Subsidiary of a foreign company providing back office support operations does not constitute a PE in India. The Court held that provision of support service by an entity in India would not make the entity a Permanent Establishment of a foreign entity. It was discussed that there was no authority with the Indian Subsidiary to take any decisions or conclude contracts, etc. on behalf of its Foreign Holding Company and hence such Indian subsidiary cannot be termed as agency PE of its Foreign Holding Company.
  • In the case of CIT vs. Nike Inc12, the issue to be dealt with was the LO of the non- resident in India, whether the work done by it come under the exempted activities or under PE. It was decided by the Karnataka High Court that mere activity of purchase from India confined to exports does not create deeming charge u/s 9. Object of the law is to encourage exports and earn foreign exchange. Thus, Nike USA was not carrying on any business and the activities of LO was not taxable in India under section 5 as well as section 9 of the IT Act.
  • In the case of IT vs. J. Ray McDermott Eastern Hemisphere Ltd13., the issue in this case was regarding the duration of work done by the non-resident in India, i.e. for the determination of existence of PE the ‘duration test’ was to be applied. The Mumbai Tribunal held that no PE existed in the present case, as under Indo-Mauritius DTAA duration of each contract held, was less than 9 months. If it had exceeded 9 months duration then it would constitute of a PE.
  • In the famous case of Morgan Stanley & Co.14, the assessee a US company, deputed its employees to India to render their services to the Indian Subsidiaries under supervision and control of the Board of Directors of the Indian companies and their day to day responsibility and activities were managed by the Indian company. The question that arose was whether such employees deputed to the Indian entity constituted a Service PE for the US parent company. The SC in this case devised the two pronged test of (a) lien of employment and (b) nature of activity to determine the existence of PE. There was no Service PE in this case because the nature of activity performed by the deputed personnel was merely of supervisory nature and did not contribute to the business of the PE. Therefore, no profits could be attributable to the Indian subsidiary

 

CONCLUSION

The concept of Permanent Establishment is one of the most important concepts in International Taxation. The existence of a Permanent Establishment or otherwise, would in most cases determine the exposure to domestic tax liability in the country of source. It is, therefore, imperative to understand the concept fully before embarking on the structuring of activities in another jurisdiction. Attribution of profits to a Permanent Establishment has also been one of the major issues both for taxpayer as well as tax advisers.

It is pertinent to follow the “substance over form” principle for characterization of a PE. Although law regarding PE is clear, it is advisable for the non-resident entities to take a preliminary ruling concerning their transactions from the Authority of Advance Rulings. Also, great caution has to be undertaken by the income tax authorities in order to differentiate between income attributable to a PE due to activities performed by it through a non-resident entity and income generated by a PE through its activities in India.

1 CIT Vs. Vishakhapatnam Port Trust (1983), 144-ITR-146 (AP)

2 Section 9 of the Income Tax Act, 1961

3 Rule 10 of the Income Tax Rules

4 Section 92C of the Income tax Act, 1961

5 Section 92A of the Income Tax Act, 1961

6 Morgan Stanley & Co (2007) 292 ITR 416 (SC)

7 Rolls Royce PLC (2011) 339 ITR 147 (DELHI)

8 Motorola Inc. V. Deputy CIT (2011) 237 CTR (Delhi) 438

9 Section 90 of the Income Tax Act, 1961

10 Section 91(1) & 92(2A) of Income Tax Act 1961

11 [2014] 364 ITR 256 (Delhi)

12  264 CTR 508 ( Karnataka HC)

13  (2010) 130 TTJ (Mumbai) 121

14 DIT v. Morgan Stanley & Co. [2007] 292 ITR 416 (SC)

 

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