AB Sciex Pte Ltd v. ACIT (Delhi)(Trib) (UR)

S. 9(1)(i) : Income deemed to accrue or arise in India-Business connection-Sales transaction on principal-to-principal basis for resale-transaction between parties was accepted to be at arm’s length by TPO-attribution of profit to PE in India could not be sustained – DTAA-India – Singapore.[Art. 5(8), 5(9)]

Assessee based at Singapore was engaged in the business of manufacturing and sale of scientific research instruments and peripheral. The products sold by assessee required maintenance, calibration, which involved servicing, repairing and supply of spares. Assessee earned revenue  under Annual Maintenance Contract (AMC), however, did not offer any income in India. AO treated DHR Holding India Ltd. as assessee’s PE in India and thus attributed profit to PE. Tribunal held that  the assessee did not have a warehouse or sales outlet in India to constitute a fixed place PE in India. Thus, there cannot be any PE under Article 5(8) and 5(9) of DTAA between India-Singapore. Even more assuming that assessee had a PE in India, no further attribution of profit could be made to PE as transaction between assessee and DHR India was accepted to be at arm’s length by TPO, both in case of assessee and DHR India. Accordingly, additions made by AO by way of attribution of profit to PE in India could not be sustained. ([ITA No.406 to 410/Del/2023, dated 17/03/2023) (AY. 2013-14 to 2016-17, 2020-21)