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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

Apeejay Surrendra Park Hotel Ltd., Kolkata vs. D.C.I.T, Cir-8(1), Kol, Kolkata

Accordingly, relevant finding of the ld. CIT(A) is set aside and the disallowance of Rs.69,970/- is deleted. Ground No. 3 raised for Assessment Year 2017-18 is allowed

ITA 373/KOL/2023[2017-18]Status: DisposedITAT Kolkata18 Mar 2024AY 2017-18

Bench: Dr. Manish Borad, Hon’Ble & Shri Sonjoy Sarma, Hon’Blei.T.A. Nos. 372 & 373/Kol/2023 Assessment Year: 2016-17 & 2017-18 Apeejay Surendra Park Hotels Deputy Commissioner Of Income Ltd. Vs Tax, Circle-8(1), Kolkata Apeejay House 15, Park Street Kolkata - 700016 [Pan : Aaacb7961L] अपीलाथ"/ (Appellant) "" यथ"/ (Respondent) Assessee By : Shri Manish Tiwary, A/R Revenue By : Shri P.P. Barman, Addl. Cit, D/R सुनवाई क" तारीख/Date Of Hearing : 20/12/2023 घोषणा क" तारीख /Date Of Pronouncement: 18/03/2024 आदेश/O R D E R Per Dr. Manish Borad: The Present Appeals Are Directed At The Instance Of The Assessee Against The Order Of The National Faceless Appeals Centre, Delhi [Hereinafter The “Ld. Cit(A)”] Evenly Dt. 28/02/2023, Passed U/S 250 Of The Income Tax Act, 1961 (“The Act”) For The Assessment Years 2016-17 & 2017-18. 2. The First Common Ground Raised By The Assessee For Both The Assessment Years Is That The Ld. Cit(A) Erred In Confirming The Action Of The Ld. Assessing Officer Disallowing Interest On Borrowed Funds. For The Sake Of Convenience, Facts In Respect Of This Issue Is Taken From Ita No. 372/Kol/2023; Assessment Year 2016-17. 2

For Appellant: Shri Manish Tiwary, A/RFor Respondent: Shri P.P. Barman, Addl. CIT, D/R
Section 143(2)Section 250

case of any fees for technical services. The alleged sum being normal AMC charges, paid to foreign company having no permanent establishment in India, no tax at source is deductible from the said sum as services were provided from outside India and no technical 6 I.T.A. Nos. 372 & 373/Kol/2023 Assessment

Apeejay Surrendra Park Hotels Ltd, Kolkata vs. D.C.I.T, Circle-8(1), Kolkata

Accordingly, relevant finding of the ld. CIT(A) is set aside and the disallowance of Rs.69,970/- is deleted. Ground No. 3 raised for Assessment Year 2017-18 is allowed

ITA 372/KOL/2023[2016-17]Status: DisposedITAT Kolkata18 Mar 2024AY 2016-17

Bench: Dr. Manish Borad, Hon’Ble & Shri Sonjoy Sarma, Hon’Blei.T.A. Nos. 372 & 373/Kol/2023 Assessment Year: 2016-17 & 2017-18 Apeejay Surendra Park Hotels Deputy Commissioner Of Income Ltd. Vs Tax, Circle-8(1), Kolkata Apeejay House 15, Park Street Kolkata - 700016 [Pan : Aaacb7961L] अपीलाथ"/ (Appellant) "" यथ"/ (Respondent) Assessee By : Shri Manish Tiwary, A/R Revenue By : Shri P.P. Barman, Addl. Cit, D/R सुनवाई क" तारीख/Date Of Hearing : 20/12/2023 घोषणा क" तारीख /Date Of Pronouncement: 18/03/2024 आदेश/O R D E R Per Dr. Manish Borad: The Present Appeals Are Directed At The Instance Of The Assessee Against The Order Of The National Faceless Appeals Centre, Delhi [Hereinafter The “Ld. Cit(A)”] Evenly Dt. 28/02/2023, Passed U/S 250 Of The Income Tax Act, 1961 (“The Act”) For The Assessment Years 2016-17 & 2017-18. 2. The First Common Ground Raised By The Assessee For Both The Assessment Years Is That The Ld. Cit(A) Erred In Confirming The Action Of The Ld. Assessing Officer Disallowing Interest On Borrowed Funds. For The Sake Of Convenience, Facts In Respect Of This Issue Is Taken From Ita No. 372/Kol/2023; Assessment Year 2016-17. 2

For Appellant: Shri Manish Tiwary, A/RFor Respondent: Shri P.P. Barman, Addl. CIT, D/R
Section 143(2)Section 250

case of any fees for technical services. The alleged sum being normal AMC charges, paid to foreign company having no permanent establishment in India, no tax at source is deductible from the said sum as services were provided from outside India and no technical 6 I.T.A. Nos. 372 & 373/Kol/2023 Assessment