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Characterisation of cross-border software receipts and existence of a permanent establishment (PE) under the India Canada tax treaty were determinative. The Tribunal applied the principle that the revenue bears the onus to prove a PE; since the tax authorities and DRP failed to discharge that onus, the finding of a PE was set aside. The licence in issue was held to be off the shelf software, not customised supplies giving rise to royalty; consequently treaty business profits principles and exclusion of a PE meant invocation of presumptive taxation for non residents was unwarranted and the assessment was set aside.
Characterisation of cross-border software receipts and existence of a permanent establishment (PE) under the India Canada tax treaty were determinative. The Tribunal applied the principle that the revenue bears the onus to prove a PE; since the tax authorities and DRP failed to discharge that onus, the finding of a PE was set aside. The licence in issue was held to be off the shelf software, not customised supplies giving rise to royalty; consequently treaty business profits principles and exclusion of a PE meant invocation of presumptive taxation for non residents was unwarranted and the assessment was set aside.
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