Post existence of PE, expense incurred by PE can be set off against connected income

SIS Live Vs ACIT (ITAT Delhi)

ITAT Delhi held that as Permanent Establishment (PE) exists, interest income being connected to the PE, has to be treated as business profit under Article 7 of the treaty. Accordingly, expenses incurred has to be set off against the interest income.

Facts- The core issue arising for consideration is whether the assessee has a Permanent Establishment (PE) in India so as to entitle the assessee to claim certain expenses as well as other benefits.

Notably, the assessee is a non-resident partnership firm incorporated under the laws of United Kingdom (UK) and is a tax resident of UK. As a consequence of the contract with Prasar Bharti, the assessee has set up a Project Office (PO) in India in 2010, which constitutes a Permanent Establishment (PE) in terms of Article 5 of India – UK Double Taxation Avoidance Agreement (DTAA), and started filing its return of income offering income to tax.

Conclusion- Once it is held that the PE of the assessee exists, then in terms of Article 12(6) of India – UK DTAA, the interest income being connected to the PE, has to be treated as business profit under Article 7 of the treaty. That being the case, expenses incurred by the PE has to be set off against the interest income.

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