TaxTMI 
TaxTMI 
TaxTMI 
2019 (2) TMI 700
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....manent establishment - 1. For the purposes of this Agreement, the term "permanent establishment" means a fixed place of business through which the business of an enterprise is wholly or partly carried on. 2. The term "permanent establishment" includes especially : (a) a place of management; (b) a branch ; (c) an office (d) a factory; (e) a workshop; (1) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources; (g) a farm or plantation; (h) a building site or construction or assembly project or supervisory activities in connection therewith, but only where such site, project or activity continues for a period of more than 9 months; (i) the furnishing of services including consultancy services by an enterprise of a Contracting State through employees or other personnel in the other Contracting State, provided that such activities continue for the same project or connected project for a period or periods aggregating more than 9 months within any twelve-month period." 4. The bone of contention is in relation to the applicability of general clause or special clause (h). 5. Briefly stated, the facts of the case are that t....
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....work, precast concrete, grout bags & grouting solutions for offshore or onshore pipelines." 7. In the light of the aforementioned grouting activities, the appellant strongly contended that the grouting activities carried out in India fall within construction activity contemplated in specific provision of Article 5(2)(h) whereas the Revenue authorities are of the firm belief that Article 5(1) squarely applies on the facts of the case. 8. There is no dispute in so far as number of days spent in India during the year under consideration is concerned. The DRP has determined the same at 264 days. The appellant contends that assuming yet not accepting the number of days determined by the DRP, the same is still less than the stipulated period of 9 months/duration test in India as per Article 5(2)(h) India-UAE DTAA. Therefore, no PE comes into existence. It was further contended that services having been rendered to different unrelated third party customers in India, and contracts not being inter connected, therefore, it cannot be said that the appellant has a PE in India. 9. The Revenue has strongly relied on the decision in the case of Fugro Engineers BV in ITA No. 2691/DEL/2017. The....
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....the case whereas in the case in hand, specific Article 5(2)(h) squarely applies. It is a settled legal principle in latin maxim "generalia specialibus non deroganf', which means a general provision would not be applicable when specific provision is there. 11. The Assessing Officer and the DRP strongly stated that by keeping the number of days less than nine months, the assessee has circumvented the provision of the Act by manipulating the stay of number of day in India. 12. The DRP was of the opinion that the equipment of the assessee was in India for at least 264 days on which work for execution of construction was carried on. Thus, the assessee has equipment PE in India. This finding of the DRP finds no place in India UAE DTAA and the concept 'Equipment PE' in India is nowhere mentioned. The DRP further observed that even movables place of business may constitute a PE even if they are temporary in location but permanent in time. A place of business would constitute a PE even if it exists only for a very short period, if time and nature of business is such that it is carried on for that period of time. The DRP is of the opinion that the assessee should be allowed benefit of ....
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....y between paras 1 and 2 of Article 5 of the India UAE DTAA, or to resolve any conflict therein, as made out by the Applicant, since the services rendered by the Applicant are not covered by any of the sub paras of para 2 of Article 5or any other para. If at all, and if a broad view is taken, namely that the activities undertaken by the Applicant are considered as being in connection with extraction of mineral oil, then the closest provision in the India UAE DTAA would be Article 5(2)(f), wherein there is no mention of any duration, and hence does not come to the help of the Applicant. 6.3.10 In this view of the matter, we have no option but to go back to paragraph 1 of Article 5, which provides an overarching definition of "permanent establishment". As we have seen above, in this para all the ingredients necessary to constitute a permanent establishment find place in the nature of services undertaken by the applicant through its vessels and equipments under its agreement with ONGC, with no qualification of duration." 16. It can be seen from the above that when there is no option in a given case, the general Article 5(1) would get attracted which means that when there is an opt....