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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 (1)(1), Mumbai vs. Shri. Sandeep Dhirajlal Dhakan, Mumbai

In the result, this appeal filed by the Revenue stands dismissed

ITA 6755/MUM/2019[2009-10]Status: DisposedITAT Mumbai01 Mar 2022AY 2009-10

Bench: Ao Without Any Reasonable Cause & Despite Being Given Sufficient Opportunities?" (B) "Whether On The Facts & In Circumstances Of The Case & In Law, The Action Of The Ld. Cit(A) In Accepting Additional Evidence Is Not Correct As Per Judgment Of The Delhi High Court In Case Of M/S. Manish Build Well (P) Ltd. (204Taxmann 106(Delhi) 2. "Whether On The Facts & In The Circumstances Of The Case & In Law, The Ld. Cit(A) Erred In Holding That Addition U/S. 68 Of The I.T. Act, 1961 Cannot Be Made In This Case, Because The Ao Has Not Made Addition U/S. 68, But Has Made The Addition As An Unexplained Investment Which Is Subject Matter Of Section 69 Of The I.T. Act, 1 961 3. "Whether On The Facts & In The Circumstances Of The Case & In Law, The Ld. Cit(A) Erred In Holding That The Source Of Investment Amounting To Rs. 25.37 Crs. In M/S. Rajesh Exports Ltd. By The Assessee Lies In Dubai On 2 Shri Sandeep Dhirajlal Dhakan

Section 142Section 142(1)Section 147Section 68Section 69

recipient of such income, being a resident of a Contacting State., carries on business in the other Contracting State through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which ... income is paid is effectively connected, with such permanent establishment or fixed base. In such case, tile provisions of Article 7 or Article 14, as the case may be, shall apply. From the above it is clear that the sum cannot be assessed under Income Tax Act 1961 in India