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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

Owens Corning (Singapore) Pvt Limited, Mumbai vs. The Dy Comm of Income Tax (International Tax), Circle -3(2)(2), Mumbai

In the result, appeal of assessee is allowed

ITA 377/MUM/2023[2020-21]Status: DisposedITAT Mumbai22 May 2023AY 2020-21

Bench: Shri B.R. Baskaran & Shri Pavan Kumar Gadaleowens Corning Inc., Dy.Cit C/O-Owens Corning (International Tax), बनाम/ (India) Pvt. Ltd., 7Th Circle-3(2)(2), Vs. Floor, Alpha Building Air India Building, Hiranandani Gardens Nariman Point, Powai, Mumbai-400076. Mumbai-400021. "थायी लेखा सं./जीआइआर सं./Pan/Gir No. : Aaaco3242R (""थ" / Respondent) (अपीलाथ" /Appellant) अपीलाथ" ओर से / Appellant By : Shri Sandeep Bhalla.Ar ""थ" की ओर से/Respondent By : Shri Soumendu Kumar Dash.Dr सुनवाई की तारीख / Date Of Hearing 10/05/2023 घोषणा की तारीख /Date Of Pronouncement 22/05/2023 आदेश / Order Per Pavan Kumar Gadale - Jm: The Assessee Has Filed The Appeal Against The Order Of Assessing Officer (“Ao”) Passed Under Section 143(3)R.W.S144C(13) Of The Income Tax Act, 1961 (“The Act”) In Pursuance To The Directions Of Ld. Dispute Resolution Panel (“Drp”) U/S 144C(5) Of The Act Dated 28.11.2022. 2. The Assessee Has Raised Following Grounds Of Appeal:- 1.0 “Re: Treating Fabrication Charges Received As 'Fees For Technical Services': 1

For Appellant: Shri Sandeep Bhalla.ARFor Respondent: Shri Soumendu Kumar Dash.DR
Section 115ASection 143(2)Section 143(3)Section 144C(5)Section 234BSection 9(1)(vii)Section 90(2)

taxable. The assessee has claimed the income as exempted as the 4 ITA.NO.377/Mum/23 Owens-Corning(Singapore)Pte Ltd. assessee has neither any Permanent Establishment (“PE”) in India as per Article 5 of India-Singapore Treaty nor any business connection in India. The Assessing Officer (AO) found in the earlier ... offered the same for taxation stating that these fabrication charges received are not taxable in India since the company does not have any Permanent Establishment or Business Connection in India. Also these charges are not for any equipment and hence cannot be said to be Royalty in terms of Article