Dependent agent permanent establishment requires independent examination before attributing software licence income; prior fixed place findings were insufficient.

A dependent agent permanent establishment issue could not be treated as covered by earlier findings on a fixed place permanent establishment, because the two questions were distinct. The Dispute Resolution Panel had not independently examined the DAPE issue on its own facts and had proceeded on an erroneous assumption that the matter was already decided. As the attribution of software licence income depended on that unresolved point, the assessment could not be sustained on that basis. The matter was remanded to the Dispute Resolution Panel for fresh consideration after hearing the assessee, and the consequential assessment order was set aside.

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Issues: Whether the question of existence of a dependent agent permanent establishment and the consequential attribution of software licence income required fresh examination by the Dispute Resolution Panel.

Analysis: The dispute concerned the assessee's India tax exposure on software licence receipts and the Tribunal noted that the earlier year findings related to a fixed place permanent establishment, not the distinct question of a dependent agent permanent establishment. The Dispute Resolution Panel had not independently adjudicated the DAPE issue on merits and had proceeded on an erroneous assumption that the point stood covered by earlier orders. Since the DAPE question remained unexamined on its own facts, the impugned assessment could not be sustained on that basis and the matter required reconsideration after hearing the assessee.

Conclusion: The issue of DAPE was remanded to the Dispute Resolution Panel for fresh consideration, and the consequential assessment order was set aside.

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