India's position w.r.t Permanent Establishment
i. Section 92F of the Income Tax Act
One of the most important aspects of a treaty-based law or Double Taxation Avoidance Agreement (DTAA) is the existence of a Permanent Establishment (PE). As per general parlance, a non-resident taxpayer is not required to pay income tax on its business profits unless it has a Permanent Establishment in the source country and the profits are attributing from such PE. Usually, as per Section 90(2) of the Income Tax Act, while ascertaining the tax liability of a non-resident, the provisions of the Income Tax Act and the DTAA are taken into consideration and whichever is more beneficial shall apply. The term Permanent Establishment can be defined by making reference to Section 92F(iiia) read along with Section 92F(iii) of the Income Tax Act. Section 92F(iii) defines enterprise which includes the definition of PE and the same is explained further by Section 92F(iiia)1 which substantiates the definition further by stating that PE includes a fixed place of business through which the business of the enterprise is wholly or partly carried on.
In Samsung Heavy Industries Co. Ltd.2, it was held that the assessee had a fixed PE in India as it was carrying on core business activities in India. Further, in the case of Motorola Inc v. DCIT3, Motorola US had a right to use the offices of Motorola India. The ITAT held that the use of offices of Motorola India by the employees of Motorola US gave rise to Motorola US's fixed place PE in India.4
ii. Business Connection as defined under Section 9
The domestic laws of India recognize business connection under Explanation 2 of Section 9(1)(i) of the Income Tax Act. This is explained by emphasizing the definition of business connection which is explained in a very clear manner. It has to be read in consonance with Section 5 of the Act5 which states that a non-resident company is liable to pay tax in India on income received or is deemed to be received in India, or accrues or arises or is deemed to accrue or arise in India, on income that is accrued through business connection in India. Business connection can sometimes be interchangeably used with PE, though it is much wider in connotation and it is the Indian equivalent of PE.
iii. Payment of Minimum Alternate Tax as per 115JB of the Income Tax Act
If foreign companies have a place of business or PE in India then they have to pay Minimum Alternate Tax (MAT) under Section 115JB of the IT Act. If a foreign company is an independent agent and it does not have PE or place of business in India, then it is not required to pay MAT.
After the Finance Act, 2015 was introduced, the IT Act was amended by inserting clauses (fb) and (iid) to Explanation 1 to subsection (2) to Section 115JB and foreign companies were not required to pay MAT. Reliance can be placed on AP Shah Committee Report, Press Release, and CBDT Instruction wherein it was mentioned that only a foreign company with a place of business/PE in India is liable to pay MAT. In a Press Release6, the Government of India clarified that if the foreign company is a resident of a country having DTAA with India and does not have a PE within the definition of the term in the relevant DTAA then with effect from 01.04.2001 the provisions of section 115JB won't be applicable to that company.
The rulings of AAR in The Timken Company v. Director of Income Tax (International Taxation)7and Praxair Pacific Limited v. Director of Income Tax (International Taxation)8 explicitly held that if foreign companies have any place of business in India then such companies will be liable to pay MAT as per 115JB.
As clarified in A. P. Shah Committee Report and in the Press Release9, the amendment of section 115JB is applicable only to FIIs/FPIs that have any PE in India, even if it had retrospective operation. The report did not express any view on the issue of FIIs/FPIs without PE in India.10 As per the Taxation Laws (Amendment) Ordinance, 2019 the tax rate under section 115JB of the Income Tax Act has been reduced from 18.5% to 15%.
Interpretation of Permanent Establishment under OECD and UN Conventions
The United Nations Model Double Taxation Convention between Developed and Developing Countries (the UN Model Convention) forms part of the continuing international efforts aimed at eliminating double taxation. These efforts were begun by the League of Nations and pursued in the Organisation for Economic Co-operation and Development (OECD) as well as in the United Nations, and have in general found concrete expression in a series of model or draft model bilateral tax conventions.11 Article 5 of the OECD Model Convention12 defines PE. As such, Article 5 is not a substantive provision. Rather, it is a definitive provision. For the purposes of this Convention, the term "permanent establishment" means a fixed place of business through which the business of an enterprise is wholly or partly carried on.
The official commentary13 on the OECD model explains the criterion for the existence of PE on the existence of a place of business, fixed place of business and carrying on of the business. In the landmark case CIT v. Vishakhapatnam Port Trust14 on the subject of the permanent establishment, the Andhra Pradesh observed that to qualify as PE it should have a fixed place of business and there should be a virtual projection of foreign company in the host country.
In Ericsson Radio Systems A.B v. DCIT15, Ericsson was a tax resident of Sweden. It was observed that Ericsson's employees had used the office facilities of Ericsson India during their business visits to India. It was held by the ITAT that although Ericsson's employees had used Ericsson India's office facilities during their business visits, it could not be substantiated the office space provided to Ericsson could be used as a matter of right. Therefore, it was held that Ericsson could not be regarded as having a fixed place PE in India.16
The definition of PE as encompassed under the United Nations Model Convention contains several significant differences from the OECD Model which are as follows: -
- There is a six-month test for a building or construction site constituting a permanent establishment, rather than the twelve-month test under the OECD Model Convention, and it expressly extends to assembly projects, as well as supervisory activities in connection with building sites and construction, assembly or installation projects (paragraph 3 (a));
- the furnishing of services by an enterprise through employees or other personnel results in a permanent establishment where such activities continue for a total of more than 183 days in any twelve-month period commencing or ending in the fiscal year concerned (paragraph 3 (b));
- Article 14 (Independent personal services) has been retained, whereas in the OECD Model Convention, Article 14 has been deleted, and Article 5 addresses cases that were previously considered under the "fixed base" test of that Article. As noted below (in paragraph 15.1 and thereafter), while the United Nations Model Convention has retained Article 14, the present Commentary provides guidance for those countries not wishing to have such an article in their bilateral tax agreements;
- in the list of what is deemed not to constitute a permanent establishment in paragraph 4 (often referred to as the list of "preparatory and auxiliary activities") "delivery" is not mentioned in the United Nations Model Convention but is mentioned in the OECD Model Convention. Therefore, a delivery activity might result in a permanent establishment under the United Nations Model Convention, without doing so under the OECD Model Convention;
- the actions of a "dependent agent" may constitute a permanent establishment, even without having and habitually exercising the authority to conclude contracts in the name of the enterprise, where that person habitually maintains a stock of goods or merchandise and regularly makes deliveries from the stock (paragraph 5 (b));
- there is a special provision specifying when a permanent establishment is created in the case of insurance business; consequently, a permanent establishment is more likely to exist under the United Nations Model Convention approach (paragraph 6).
DTAA versus General provisions of Income Tax Act
In CIT v. VR.S.R.M. Firm,17 it was asserted: "Tax treaties are for that matter considered being mini legislations containing themselves all the relevant aspects or features which are at variance with the general taxation laws of the respective countries. Such variations are in some cases in addition to the existing local tax laws and in other cases in lieu thereof." When the definition of PE is given in DTAA, the definition of PE in any other legislation will not be applied.
In a CBDT Circular18 the legal position for the tax authorities is made clear when there is a difference between provisions of DTAA and ITA: "The correct legal position is that where a specific provision is made in the double taxation avoidance agreement, that provisions will prevail over the general provisions contained in the Income-tax Act."
Numerous decisions of various Courts in India have been applied to the above circular. In DCM Ltd. v. ITO,19 it was held that: "The laws in force in either country continue to govern the assessment and taxation of the income in the respective countries except where provisions to the contrary have been made in the agreement." It was further reiterated in CIT v. R.M. Muthiah20. Likewise, in CIT v. Hindustan Paper Corp. Ltd. 21 it was reasserted that: "It is by now well-settled that wherever there is a conflict between a DTA and the specific provisions contained in the Income-tax Act, the provisions of DTA will prevail over the statutory provisions contained in the said Act."
The same position was supported in numerous other cases like CIT v. Davy Ashmore Ltd.22, ITO v. Degremont International23 and Elkem Spigerverket v. ITO.24 From the above circular and cases, it is evident that the DTAA will prevail over those of the Income Tax Act whenever there is a conflict. When the definition of PE is clearly given in the DTAA, which will be applicable to the petitioner by virtue of its residence, the same will apply. A slightly different opinion was also expressed in Nagarjuna Fertilizers and Chemicals Limited vs. ACIT (ITAT Hyderabad) (Special Bench)25 wherein it was held by the Hon'ble ITAT that in their opinion, it, therefore, cannot be said that the provisions of section 206AA, despite the non-obstante clause contained therein, would override the provisions of DTAA to the extent they are more beneficial to the assessee and it is the beneficial provision of treaty that will override the machinery provisions of section 206AA.
Overall, after analysing the various precedents so far it can be made out that every matter has to be considered carefully after looking at the facts in hand and the DTAA or the general provisions of the Income Tax Act whichever are more beneficial to the assessee would be made applicable26.
- DR. AMAR MEHTA, PERMANENT ESTABLISHMENT IN INTERNATIONAL TAXATION 2(2012).
- Available at https://economictimes.indiatimes.com/news/economy/policy/dtaa-provisions-if-beneficial-to-tax-payer-will-override-some-sections-of-income-tax-act-tax-tribunal/articleshow/57451535.cms
- Committee on Direct Tax Matters, Report on Applicability of Minimum Alternate Tax (MAT) on FIIs/FPIs for the Period Prior to 01.04.2015, 24(2015).
- Pg 2, Update of the UN Model Double Taxation Convention between Developed and Developing Countries - Permanent Establishment, Committee of Experts on International Cooperation in Tax Matters, Eighteenth session, 28th March, 2019
- OECD Model Tax Convention on Income and on Capital, July 15, 2014
1. (iiia) "permanent establishment", referred to in clause (iii), includes a fixed place of business through which the business of the enterprise is wholly or partly carried on;
2. Samsung Heavy Industries Co. Ltd. v. ADIT 13 taxmann.com 14 (ITAT Delhi)
3.  95 ITD 269 (Delhi) (SB)
4. CIT v. Vishakhapatnam Port Trust  144 ITR 146
5. Income Tax Act, 1961 (As amended by the Finance Act, 2018)
6. Press Release issued by Ministry of Finance dated September 24, 2015
7. (2010) 326 ITR 193 (AAR)
8. (2010) 326 ITR 276 (AAR)
9. Press Release issued by Ministry of Finance dated September 01, 2015
10. Supra note 15, at 68.
11. pg 5, UN Model Double Taxation Convention between Developed and Developing Countries, 2017
12. OECD (2017), Model Tax Convention on Income and on Capital: Condensed Version 2017
13. ¶ 2 of Art.5(1) of the Commentary of the OCED Model
14. (1983) 144 ITR 146 (AP)
15.  95 ITD 269 (Delhi) (SB).
16. 1981 AIR 1922
17.  208 ITR 400 (Mad.)
18. CBDT Circular No. 333 dated 2-4-1982
19.  Taxation 92(4)-16(Delhi - Trib.)
20.  202 ITR 508 (Kar.)
21.  77 Taxman 450 (Cal.)
22.  190 ITR 626 (Chd.)
23.  11 ITD 564 (Jp. - Trib.)
24.  32 TTJ (Cal. - Trib.)
25. I.T.A No.s 1187 & 1188/H/2014
26. supra note at 1
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.