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Issues: Whether the receipts for managerial and technical services were taxable in India as fees for technical services under domestic law or, in the absence of a specific FTS article in the India-UAE tax treaty, as business profits taxable only if the assessee had a permanent establishment in India.
Analysis: The receipts were examined in the context of the service agreement, the India-UAE DTAA, and the domestic deeming provision relating to fees for technical services. The assessee relied on the treaty position that, where the DTAA does not contain a specific FTS article, the receipts would fall within business profits under the treaty. The decisive factual question was whether the assessee had a permanent establishment in India, because treaty business profits could be taxed in India only if such a presence existed. The assessee did not establish, with evidence, the absence of a permanent establishment. In view of the competing treaty principles and the lack of conclusive material on permanent establishment, the matter required fresh factual examination by the assessing authority.
Conclusion: The issue was sent back to the assessing authority to determine whether the assessee had a permanent establishment in India and, depending on that finding, to decide the taxability of the receipts.
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