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Transaction between foreign enterprise and its Indian Permanent Establishment (PE) falls within transfer pricing provisions u/s 92B. ITAT held PE must be treated as distinct and separate enterprise per Article 7(2) of India-China DTAA. Transactions between foreign HO and Indian PE qualify as international transactions since both parties are non-residents, satisfying Section 92B(1) requirement. PE's functional independence is supported by OECD Model Tax Convention commentary. The underlying philosophy of transfer pricing provisions and Article 7(2) align in analyzing third-party behavior under uncontrolled conditions. ITAT rejected argument of conflict between Article 9 of DTAA and domestic transfer pricing provisions, directing ALP adjustment application to HO-PE transactions. Matter remanded to Division Bench for implementation.
Transaction between foreign enterprise and its Indian Permanent Establishment (PE) falls within transfer pricing provisions u/s 92B. ITAT held PE must be treated as distinct and separate enterprise per Article 7(2) of India-China DTAA. Transactions between foreign HO and Indian PE qualify as international transactions since both parties are non-residents, satisfying Section 92B(1) requirement. PE's functional independence is supported by OECD Model Tax Convention commentary. The underlying philosophy of transfer pricing provisions and Article 7(2) align in analyzing third-party behavior under uncontrolled conditions. ITAT rejected argument of conflict between Article 9 of DTAA and domestic transfer pricing provisions, directing ALP adjustment application to HO-PE transactions. Matter remanded to Division Bench for implementation.
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