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“permanent establishment”

International TaxSection 9 / DTAA Article 5Section 9 / DTAA Article 51,497 judgments

The decision most relied on for permanent establishment is DIT v. Morgan Stanley & Co. (292 ITR 416), cited in 360 judgments on BharatTax.

Leading authorities on permanent establishment

DIT v. Morgan Stanley & Co.
292 ITR 416 · 2007 · Supreme Court
360
citing judgments

A Permanent Establishment (PE) signifies a foreign enterprise's virtual projection into another country, with a fixed place PE existing where an MNE's business is wholly or partly carried on. A dependent agent PE requires the agent to act as such and/or have the authority to conclude contracts for the foreign enterprise under DTAA provisions.

DIT v. Nokia Networks OY
358 ITR 259 · 2013 · High Court
276
citing judgments

Payments for the supply of software along with telecom equipment are not in the nature of royalty if they are for the use of a copyrighted article, not the copyright itself. Such payments are not taxable in India in the absence of a Permanent Establishment (PE).

DIT v. Infrasoft Ltd.
39 Taxmann.com 88 · 2013 · High Court
269
citing judgments

Payments for the use of copyrighted software, without the transfer of any rights in the underlying copyright itself, do not constitute 'royalty' under the Income-tax Act or tax treaties. Such payments are often treated as business income, taxable only if a permanent establishment exists.

ONGC v. CIT
376 ITR 306 · 2015 · Supreme Court
241
citing judgments

Income derived by a non-resident for services related to mineral oil operations, falling under the presumptive taxation regime of Section 44BB, cannot simultaneously be treated as fees for technical services under Section 9(1)(vii). The specific presumptive provisions override the general FTS definition, particularly when DTAA applies.

Motorola Inc. v. Dy. CIT
95 ITD 269 · 2005 · High Court
213
citing judgments

Revenue must demonstrate the existence of a Permanent Establishment (PE) of a foreign enterprise in India, including establishing that transactions underlying a Dependent Agent PE were not at arm's length. Income from the sale of goods is not taxable in India if title and risk in the goods pass outside India.

(i) Formula One World Championship Ltd. v. CIT
394 ITR 80 · 2017 · Supreme Court
200
citing judgments

This case provides foundational principles that illuminate the contours of the concept of 'Permanent Establishment' (PE) under tax treaties, especially regarding a 'fixed place' PE.

DIT v. Morgan Stanley Co. Inc.
399 ITR 34 · 2017 · Supreme Court
162
citing judgments

Once a transfer pricing analysis has been undertaken for an Indian associated enterprise, no further profits are attributable to it as a Permanent Establishment, thereby extinguishing the need for additional profit attribution.

Sir Kikabhai Premchand v. CIT
24 ITR 506 · 1953 · Supreme Court
156
citing judgments

One cannot make a taxable profit or loss from transactions with oneself, as profit only arises from dealings with external third parties, even when transferring assets between different accounts or divisions of the same entity.

Judgments citing permanent establishment

M/S. Tirubala International Private Limited, Kanpur vs. Deputy Commissioner of Income Tax, Range-VI, Kanpur

In the result, the appeal of the assessee is partly allowed

ITA 147/LKW/2018[2014-15]Status: DisposedITAT Lucknow25 Oct 2024AY 2014-15

Bench: Sh. Sudhanshu Srivastava & Sh. Nikhil Choudharya.Y. 2014-15 Tirubala International Pvt. Ltd., Deputy Commissioner Of C-7, Panki Industrial Area, Vs. Income Tax, Range-Vi, Kanpur Kanpur, U.P. Pan:Aaect2086J (Appellant) (Respondent) Assessee By: Sh. Vikas Garg, Fca Revenue By: Sh. Sanjeev Krishna Sharma, Addl Cit Dr Date Of Hearing: 02.09.2024 Date Of Pronouncement: 25.10.2024 O R D E R Per Sh. Nikhil Choudhary: This Is An Appeal Filed Against The Order Of The Ld. Cit(A), Dismissing The Appeal Of The Assessee That Was Filed Against The Order Of The Dcit-6, Kanpur Passed On 19.12.2016. The Grounds Of Appeal Are As Under:- “1. That The Ao, Has Erred In Law & On Facts In Making An Addition Of Rs. 29,164/- On Account Of Late Payment Towards Employees Contribution To Esi. 2. That The Authorities Below Have Failed To Appreciate That The Payment Of Rs.29,164 Towards Employee'S Contribution To Provident Fund Was Made Before The "Due Date" Of Filing Return Of Income U/S 139(1) Of The Income Tax Act 1961 Therefore There Could Not Be Any Addition Of The Aforesaid Amount To The Returned Income. 3. That The Authorities Below Have Failed To Appreciate That The Due Date As Mentioned In 36(1) (Va) Is To Be Read In Conjunction With Section 43B(B)

For Appellant: Sh. Vikas Garg, FCAFor Respondent: Sh. Sanjeev Krishna Sharma, Addl CIT DR
Section 139(1)Section 195Section 36(1)(va)Section 40Section 43B

Tirubala International Pvt. Ltd. Articles 4 of the India-Spain tax treaty and it did not have any permanent establishment in India . Therefore it was submitted that, the payments to Aitex cannot be considered as fee for technical services in India given the restrictive definition of FTS under the India ... treaty. Therefore the service provided by Aitex, is business income and not subject to withholding taxes in India in the absence of Permanent Establishment of Aitex in India and TDS has rightly not been deducted on payments made to Aitex Textile Research Lab. In the circumstances there was no scope

Deputy Commissioner of Income-Tax, Corporate Circle 1(1), Chennai vs. Doosan Power Systems India Private Limited, Chennai

In the result, appeal filed by the revenue is dismissed

ITA 1149/CHNY/2023[2015-16]Status: DisposedITAT Chennai23 Oct 2024AY 2015-16

Bench: Shri Mahavir Singh, Hon’Ble & Shri S. R. Raghunatha, Hon’Bleआयकरअपीलसं./Ita No.: 1149/Chny/2023 िनधा"रणवष" / Assessment Year: 2015-16 Deputy Commissioner Of Doosan Power Systems India Income Tax, V. Private Limited, Corporate Circle -1(1), 18/2A, Sennerkuppam, Bye Chennai. Pass Road, Poonamallee, Chennai – 600 056. [Pan:Aabcb-5946-J] (अपीलाथ"/Appellant) (""यथ"/Respondent) अपीलाथ"क"ओरसे/Appellant By : Shri. Clement Ramesh Kumar, Cit ""यथ"क"ओरसे/Respondent By : Shri. Sandeep Bagmar, Ca सुनवाई क" तारीख/Date Of Hearing : 20.08.2024 घोषणा क" तारीख/Date Of Pronouncement : 23.10.2024 आदेश /O R D E R

For Appellant: Shri. Clement Ramesh Kumar, CITFor Respondent: Shri. Sandeep Bagmar, CA
Section 144BSection 147Section 195Section 40Section 9(1)(vi)

India-Korea tax- treaty, the business profits of a foreign company would not be taxable in India if such company does not have a permanent establishment in India through which the business is carried on. In this regard, the ld.AR draws attention to Article 7(1) of the India-Korea ... Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid the profits of the enterprise may be taxed in the other State but only so much