Dependent agent permanent establishment and section 234B interest: tribunal rejects PE attribution and advance tax liability for a non-resident

An Indian subsidiary is treated as a dependent agent permanent establishment under the India-Germany DTAA only if it habitually concludes contracts, maintains stock for regular deliveries, or habitually secures orders on behalf of the foreign enterprise; where contracts are negotiated and signed outside India, the subsidiary merely coordinates delivery and payment, and it is remunerated at arm's length, no PE or further profit attribution arises. The tribunal also applied the principle that section 234B interest is not leviable on a non-resident where the relevant income was subject to tax deduction at source and the assessee was not otherwise liable to advance tax under the pre-amendment regime.

---

---

Issues: (i) Whether the Indian subsidiary constituted a dependent agent permanent establishment of the foreign assessee under the India-Germany DTAA, so as to permit taxation of offshore supplies and attribution of profits in India; (ii) Whether interest under section 234B of the Income-tax Act, 1961 was leviable on the assessee.

Issue (i): Whether the Indian subsidiary constituted a dependent agent permanent establishment of the foreign assessee under the India-Germany DTAA, so as to permit taxation of offshore supplies and attribution of profits in India

Analysis: Article 5 of the DTAA deems a permanent establishment only where the person acting in India on behalf of the foreign enterprise habitually concludes contracts, habitually maintains a stock of goods from which deliveries are regularly made, or habitually secures orders wholly or almost wholly for the enterprise, and the exclusion for an independent agent must be respected. On the facts, the contracts were directly negotiated, concluded and signed by the foreign assessee outside India, the subsidiary merely coordinated delivery and payment, and the material on record did not establish habitual order securing, stock maintenance on behalf of the assessee, or economic dependence. The tribunal also noted that the subsidiary had been remunerated at arm's length for its functions, leaving no basis for further attribution.

Conclusion: The subsidiary was not a dependent agent permanent establishment and no further attribution of profits to India was warranted.

Issue (ii): Whether interest under section 234B of the Income-tax Act, 1961 was leviable on the assessee

Analysis: The levy of interest under section 234B depends on default in payment of advance tax. For non-resident assessees, where tax was deductible at source on the relevant income, the Supreme Court authority relied upon by the tribunal held that for years prior to the amended regime the assessee could not be treated as in default for advance tax purposes merely because the payer failed to deduct tax. Applying that principle, the tribunal held that section 234B could not be invoked on the assessee in the present case.

Conclusion: Interest under section 234B was not leviable against the assessee.

Final Conclusion: The assessee succeeded on the permanent establishment and attribution issues, and the Revenue's challenge to the deletion of section 234B interest also failed, leaving the assessee's appeal allowed and the Revenue's appeal dismissed.

Ratio Decidendi: A dependent agent permanent establishment arises only when the Indian agent habitually performs the treaty-specified contract-concluding, stock-delivery, or order-securing functions on behalf of the foreign enterprise and is not acting as an independent agent in the ordinary course of its business; where no PE exists and the agent is remunerated at arm's length, no further profit attribution is justified, and section 234B interest cannot be levied where the non-resident was not liable to advance tax in the relevant regime.

---