Supreme Court’s Verdict on PE of MNCs having their Business Operations in India
- 9 Min Read
- By Taxmann
- Last Updated on 15 June, 2022
2. Facts of the case – E-funds IT Solutions Inc.:
E-Funds Corporation and E-Funds IT Solutions Inc. (collectively known as ‘Taxpayers’) were incorporated and were tax residents of the United States of America (‘USA’). The Taxpayers were engaged in the following business operations outside India: – ATM management services, which covered the business of ATM deployment, management and branding services; – Electronic payment management comprising the provision of payment processing software and electronic payment processing services; – Decision support and risk management provided risk management-based data and products to financial institutions, retailers, etc.; and – Global outsourcing services and professional services, which involved Information technology and business process outsourcing services to support electronic payment businesses. E-Funds International India Private Limited (‘E-funds India’)was an Indian company and wholly owned indirect subsidiary of E-Funds Corporation. E-funds India supported the Taxpayers as its back office and carried out Information Technology (‘IT’) and IT-enabled services in respect of the above overseas businesses of the Taxpayers. The Taxpayers had seconded two employees in India to oversee the work of E-funds India. During the course of the tax audit proceedings, the Tax Officer concluded that the Taxpayers had established a business presence in India under the provisions of the Income-tax Act, 1961 (‘the Act’). Further, the Taxpayers also constituted a Fixed Place PE in India under Article 5 of the India-US DTAA. Accordingly, income attributable to the Taxpayers should be taxed in India. The Commissioner (Appeals) [First Appellate Authority]dismissed the appeal of the Taxpayers, holding that the Taxpayers constituted a Fixed Place PE, a Service PE, and an Agency PE in India. The Tax Tribunal [Second Appellate Authority]upheld the order of the Commissioner (Appeals) on the constitution of a Fixed Place PE and a Service PE of the Taxpayers in India. However, it did not adjudicate the issue as to whether the Taxpayers constituted an Agency PE in India, or not as the same was not argued by the Revenue. Furthermore, the Tribunal adopted a different calculation formula in comparison with the formula adopted by the Commissioner (Appeals), and arrived at a nil figure of income attributable to the PE. The Taxpayers as well as the Revenue appealed to the High Court against the ruling of the Tribunal. The High Court passed a detailed order and held as the following: – E-funds India was providing information and details to the Taxpayers for the purpose of entering into contracts with third parties. Relying on the ratio of the earlier Apex Court’s decisions, in the cases of R.D. Aggarwal and Company  56 ITR 20 and Ishikawajma-Harima Heavy Industries Ltd. v. DIT  288 ITR 408/158 Taxman 259 (SC) a business connection of the Taxpayers existed in India. However, the Taxpayers were eligible to opt for the beneficial provisions of the India-US DTAA. – E-funds India did not constitute a PE of the Taxpayers in India under the India-US DTAA. The High Court dismissed the findings and appeals of the Tax Officer and concurred with the Tribunal on the calculation of the profits attributable to the PE, which resulted in nil taxation.
3. Arguments before the Apex Court:
3.1 Contentions of the Revenue:
3.1.1 Fixed Place PE:
3.1.2 Service PE:
3.1.3 Agency PE:
3.1.4 Other key contentions:
3.2 Contentions of the Taxpayers:
3.2.1 Fixed Place PE:
3.2.2 Service PE:
3.2.3 Agency PE:
The aspect of Agency PE was never argued before the Tribunal and no factual foundation for the same had been provided.
3.2.4 Other key contentions:
4. Ruling of the Apex Court :
4.1 Fixed Place PE:
There was no specific finding in the tax audit order or the appellate orders that any place in India had been put at the disposal of the Taxpayers. Further, the reliance placed by the revenue on the filings made by the Taxpayers in the USA was also misplaced. The Apex Court concurred with the noting of the High Court that factors like economic dependence, the close association between parties, low risks with the Indian affiliate, and the use of the Taxpayers’ intangible property free of cost by the Indian affiliate in the process of rendering services, etc., were not relevant or criteria for determining the exposure of Fixed Place PE. The Apex Court examined in detail the factual reports on the various business segments of the Taxpayers and the related involvement of E-funds India. On this basis, the Apex Court accepted the contentions of the Taxpayers that no part of the main business or revenue-earning activity of the Taxpayers was carried on through a fixed business place in India, which would not give rise to a Fixed place PE in India.
4.2 Service PE:
For the constitution of a service PE it is necessary that the foreign enterprise must provide services “within India” through employees or other personnel. In the current case, none of the customers of the Taxpayers were located in India nor had they received any service in India. Infact, only the auxiliary operations of the overseas services were carried out in India by E-funds India. Hence, this test was not satisfied.
On the role of deputed employees, the Apex Court noted in particular the observations of the High Court that the employees were deputed towards the development of domestic work in India. The deputed employees were working under the control and supervision of E-funds India and their remuneration was borne by E-funds India only. Based on the above, the Apex Court accepted the contentions of the Taxpayers that they had not created a Service PE in India.
4.3 Agency PE:
4.4 Other key observations:
The burden of proving the fact that a foreign enterprise has a PE in India and must therefore suffer tax from the business generated from such a PE initially falls on the Revenue. The Apex Court placed reliance on the principle laid down in the case of the Morgan Stanley (supra) ruling, which held that since the arm’s length principle had been satisfied in the present case, no further profit would be attributable, even if the Taxpayers constituted a PE in India. In relation to the resolution passed during the MAP proceedings for the earlier years, the Apex Court took note of the OECD Manual, which states that MAP resolutions cannot be considered precedents for either the taxpayer or the tax administrations regarding adjustments or issues relating to subsequent years, or for MAP discussions on the same issues for other taxpayers. Accordingly, the Apex Court accepted the ruling of the High Court that the MAP agreement between the parties cannot be considered as a precedent for subsequent years; based on previous MAP proceedings, it cannot, therefore, be concluded that E-funds India constituted a PE of the Taxpayers in India.
The concept of PE has been defined extensively in various places, but the interpretation of the same continues to be complex and subjective. The distinct nature of each transaction makes the interpretation of the law and the judicial precedents worth noting. Although determination of the PE is a contentious issue, yet the arm’s length transaction restricts the scope of further attribution to the PE. The decision of the Apex Court in the case of Formula One (supra) was far-reaching in many ways, but it was nonetheless given in the context of specific facts. The judgment in the case of the E-Funds group deals with a fact pattern that is widespread in general. It shall serve as guidance for determining the taxable presence of multinationals which have outsourced their business operations to India. Hence, the principles applied in this judgment could have a far greater practical impact.
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