| COURT: | Delhi High Court |
| CORAM: | A. K. Chawla J, Ravindra Bhat J |
| SECTION(S): | Article 7, Article5 |
| GENRE: | International Tax |
| CATCH WORDS: | India-USA DTAA, Permanent Establishment |
| COUNSEL: | Sachit Jolly |
| DATE: | December 21, 2018 (Date of pronouncement) |
| DATE: | January 17, 2019 (Date of publication) |
| AY: | - |
| FILE: | Click here to view full post with file download link |
| CITATION: | |
| Law on what constitutes a "fixed place permanent establishment" under Articles 5(1) to 5(3) of India-USA DTAA explained after referring to all judgements and pronouncements from the OCED Commentary and eminent authors | |
GE’s overseas enterprises have a place of business in India, per Article 5(1) of the DTAA. The term “place of business” has been understood to mean any premises, facilities or installations used for carrying on the business of the enterprise – does not have to be exclusively used for that purpose [OECD Model Tax Convention on Income and on Capital, Commentary on Article 5 Concerning the Definition of Permanent Establishment, para. 4 (“OECD MTC”)], with even a certain amount of space at its disposal is sufficient to cause fixed place of business.1 Moreover, having space at disposal does not require a legal right to use that place – mere continuous usage is sufficient if it indicates being at disposal. (Ref Para 4.1 of OECD MTC)
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