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The ITAT held that the taxpayer's liaison office (LO) in India did not constitute a permanent establishment (PE) under Article 5 of the India-Netherlands DTAA, read with the MLI, because the LO's activities were preparatory or auxiliary and no cohesive business operation was carried out in India by a subsidiary or the LO that would attribute income to the taxpayer. The Tribunal found no evidence that LO personnel had authority to conclude contracts or that information collected was used by an active PE in India; the revenue's expectation to prove a negative was untenable. Consistent with SC precedent, the adhoc income addition premised on a PE finding was deleted.
The ITAT held that the taxpayer's liaison office (LO) in India did not constitute a permanent establishment (PE) under Article 5 of the India-Netherlands DTAA, read with the MLI, because the LO's activities were preparatory or auxiliary and no cohesive business operation was carried out in India by a subsidiary or the LO that would attribute income to the taxpayer. The Tribunal found no evidence that LO personnel had authority to conclude contracts or that information collected was used by an active PE in India; the revenue's expectation to prove a negative was untenable. Consistent with SC precedent, the adhoc income addition premised on a PE finding was deleted.
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