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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

ITO, (It)-2(2)(2), Mumbai vs. M/S International Reinsurance and Insurance Consultancy & Broking Services Private Limited, Mumbai

In the result, the appeal filed by the revenue stands dismissed

ITA 2823/MUM/2019[2016-17]Status: DisposedITAT Mumbai13 Jun 2022AY 2016-17

Bench: Shri Amit Shukla, Jm & Shri Amarjit Singh, Am आयकरअपीलसं./ I.T.A. No. 2823/Mum/2019 (निर्धारणवर्ा / Assessment Year: 2016-17) M/S International Ito(It)-2(2)(2), Reinsurance & R. No. 1725, 17Th Floor, Air Insurance Consultancy India Building, Nariman & Broking Services Pvt. Point, बिधम/ Ltd. Mumbai-400 021 Vs. 15Th Floor, B-Wing, Nirmal Building, 241/242, Nariman Point, Mumbai-400 021 स्थायीलेखासं./जीआइआरसं./ Pan No. Aaaci2859J (अपीलाथी/Appellant) (प्रत्यथी / Respondent) : अपीलाथीकीओरसे/ Appellant By : Shri Milind Chavan, Ld. Dr प्रत्यथीकीओरसे/Respondent By : Shri Atul T. Suraiya, Ld. Ar सुनवाईकीतारीख/ : 12.05.2022 Date Of Hearing घोषणाकीतारीख / : 13.06.2022 Date Of Pronouncement आदेश / O R D E R Per Amit Shukla: The Aforesaid Appeal Has Been Filed By The Revenue Against The Impugned Order Dated 28.02.2019 Passed By Ld. Cit (Appeals)-56

For Appellant: Shri Milind Chavan, LdFor Respondent: Shri Atul T. Suraiya, Ld
Section 195Section 201Section 201(1)

justified in not deciding the issue that the assessee company is a dependent agent of AON Benfield, acting as a Permanent Establishment of AON Benfield in India." 4. "The Appellant prays that the order of the Ld. CIT(A) on the above grounds be set aside and that ... treated as dependant agent PE.......". It is not the case of assessee to prove they are a dependant agent Permanent Establishment. It is for Assessing Officer to establish based on factual analysis the case is to be established by examining terms of contract, if any, invoices etc. The argument

M/S. Madura Coats Private Limited, Bangalore vs. Deputy Commissioner of Income Tax., (International Transaction), Circle- 1(2), Bangalore

In the result, appeals filed by assessee for A

ITA 1345/BANG/2019[2017-18]Status: DisposedITAT Bangalore31 May 2022AY 2017-18

Bench: Smt. Beena Pillai & Ms. Padmavathy Sit(It)A Nos. 1344 & 1345/Bang/2019 Assessment Years : 2016-17 & 2017-18 M/S. Madura Coats Pvt. The Deputy Ltd., Commissioner Of 7Th Floor, Jupiter Income Tax Prestige Technology (International Park, Vs. Taxation), Outer Ring Road, Circle – 1(2), Bangalore – 560 103. Bangalore. Pan: Aabcm8297K Appellant Respondent Assessee By : Shri Ajay Rotti, Ca : Shri Shehnawaz Ul Rahaman, Revenue By Addl. Cit (Dr) Date Of Hearing : 13-04-2022 Date Of Pronouncement : 31-05-2022 Order Per Beena Pillaipresent Appeals Are Filed By Assessee Against Order Dated 30.03.2019 Passed By Ld.Cit(A)-12, Bangalore For A.Ys. 2016-17 & 2017-18. It Is Submitted That The Issues Alleged By Assessee In Both These Years Are Identical & On Similar Facts. 2. Brief Facts Of The Case Are As Under: 2.1 Madura Coats Pvt Ltd (Mcpl) Is An Indian Company Carrying On The Business As Manufacturer & Merchant Of Sewing Threads & Other Goods, Possesses The Requisite Expertise & Experience By Virtue Of Having Several Qualified Personnel In Its Employment. During The Course Of Verification Conducted Us

For Appellant: Shri Ajay Rotti, CA
Section 195Section 201(1)

business profits of a non-resident are taxable in India only if the non-resident has:  Business Connection in India under the Act or  Permanent Establishment ("PE") in India under the relevant DTAA (in the present case, under the Indo-UK DTAA). 19. It was submitted that J&P COats ... does not have a Business Connection in India under the Act or a Permanent Establishment ("PE") in India as per the provisions of Indo-UK DTAA. In the absence of a PE or a business connection in India, it was submitted that the receipts pertaining to the recoveries of data

M/S. Madura Coats Private Limited, Bangalore vs. Deputy Commissioner of Income Tax., (International Transaction), Circle- 1(2), Bangalore

In the result, appeals filed by assessee for A

ITA 1344/BANG/2019[2016-17]Status: DisposedITAT Bangalore31 May 2022AY 2016-17

Bench: Smt. Beena Pillai & Ms. Padmavathy Sit(It)A Nos. 1344 & 1345/Bang/2019 Assessment Years : 2016-17 & 2017-18 M/S. Madura Coats Pvt. The Deputy Ltd., Commissioner Of 7Th Floor, Jupiter Income Tax Prestige Technology (International Park, Vs. Taxation), Outer Ring Road, Circle – 1(2), Bangalore – 560 103. Bangalore. Pan: Aabcm8297K Appellant Respondent Assessee By : Shri Ajay Rotti, Ca : Shri Shehnawaz Ul Rahaman, Revenue By Addl. Cit (Dr) Date Of Hearing : 13-04-2022 Date Of Pronouncement : 31-05-2022 Order Per Beena Pillaipresent Appeals Are Filed By Assessee Against Order Dated 30.03.2019 Passed By Ld.Cit(A)-12, Bangalore For A.Ys. 2016-17 & 2017-18. It Is Submitted That The Issues Alleged By Assessee In Both These Years Are Identical & On Similar Facts. 2. Brief Facts Of The Case Are As Under: 2.1 Madura Coats Pvt Ltd (Mcpl) Is An Indian Company Carrying On The Business As Manufacturer & Merchant Of Sewing Threads & Other Goods, Possesses The Requisite Expertise & Experience By Virtue Of Having Several Qualified Personnel In Its Employment. During The Course Of Verification Conducted Us

For Appellant: Shri Ajay Rotti, CA
Section 195Section 201(1)

business profits of a non-resident are taxable in India only if the non-resident has:  Business Connection in India under the Act or  Permanent Establishment ("PE") in India under the relevant DTAA (in the present case, under the Indo-UK DTAA). 19. It was submitted that J&P COats ... does not have a Business Connection in India under the Act or a Permanent Establishment ("PE") in India as per the provisions of Indo-UK DTAA. In the absence of a PE or a business connection in India, it was submitted that the receipts pertaining to the recoveries of data

ACIT (Ltu)-2, Mumbai vs. M/S Reliance Industrial Ltd., Mumbai

In the result, the appeal filed by the revenue stands dismissed

ITA 5688/MUM/2019[2018-19]Status: DisposedITAT Mumbai19 May 2022AY 2018-19

Bench: Shri Amit Shukla, Jm & Shri Amarjit Singh, Am आयकरअपीलसं./ I.T.A. No. 5688/Mum/2019 (निर्धारणवर्ा / Assessment Year: 2018-19) M/S Reliance Acit (Ltu-2), Industries Ltd. 29Th Floor, Centre-1, बिधम/ Maker Chamber Iv, World Trade Center, 3Rd Floor, 222, Vs. Cuffe Parade, Nariman Point, Mumbai-400 005 Mumbai-400021 स्थायीलेखासं./जीआइआरसं./ Pan No. Aaacr5055K (अपीलाथी/Appellant) (प्रत्यथी / Respondent) : अपीलाथीकीओरसे/ Appellant : Shri Milind Chavan, Ld. Dr By प्रत्यथीकीओरसे/Respondent : Shri Nimesh Vora, Ld. Ar By सुनवाईकीतारीख/ : 11.05.2022 Date Of Hearing घोषणाकीतारीख / : 19.05.2022 Date Of Pronouncement आदेश / O R D E R Per Amit Shukla: The Aforesaid Appeal Has Been Filed By The Revenue Against The Impugned Order Dated 27.06.2019, Passed By Ld. Cit(A)-57

For Appellant: Shri Milind ChavanFor Respondent: Shri Nimesh Vora, Ld
Section 195Section 195(1)

also filed the tax residency certificate of PTAI which was tax resident of USA and it was also stated that PTAI did not had permanent establishment in India, therefore, it was in the nature of business income of PTAI and hence not taxable in India. The payment was purely commercial