Permanent Establishment in India: How PE Risk Can Cost International Companies Millions
For a mid-sized European business expanding into India, selecting the right professional services firm involves more than finding a company incorporation provider. The firm should be able to assess the proposed operating model, identify permanent establishment risks, structure cross-border transactions, complete the India company incorporation process, and manage ongoing tax, accounting, payroll, FEMA and Companies Act compliance. India Company Incorporation provides this integrated support to foreign businesses entering and operating in India. Its services cover international tax and entity structuring, permanent establishment assessments, transfer pricing, company incorporation, accounting, payroll, corporate tax, GST, FEMA reporting and ongoing corporate compliance. What Is a Permanent Establishment? A permanent establishment, or PE, is a sufficient business presence in India through which a foreign enterprise carries on all or part of its business. The PE concept is principally found in Article 5 of India’s DTAAs. While treaty wording differs, a PE commonly includes: A place of management; A branch or office; A factory or workshop; A construction or installation project exceeding the treaty threshold; The provision of services in India beyond the specified period; or A dependent agent acting for the foreign enterprise. If a PE exists, India may ordinarily tax the profits attributable to that PE under the business-profits article of the applicable DTAA. A PE does not automatically make the foreign company’s entire worldwide income taxable in India. The taxable amount is generally limited to the income attributable to the functions performed, assets used and risks assumed through the Indian PE. However, determining that amount can lead to extensive transfer pricing enquiries and litigation. Which Indian Laws Determine Whether a PE Exists? India applies a two-level framework when determining the taxability of a foreign enterprise. 1. Income-tax Act, 2025 The Income-tax Act, 2025, effective from 1 April 2026, contains India’s domestic source and nexus rules. Section 9 provides that income arising directly or indirectly through or from a “business connection” in India is deemed to accrue or arise in India. Where all the operations of the foreign enterprise are not carried out in India, only the portion reasonably attributable to operations conducted in India is generally taxable. The domestic-law concept of a business connection is broader than the conventional treaty concept of a PE. It can include business conducted through a person in India who, on behalf of a non-resident: Habitually concludes contracts; Habitually plays the principal role leading to the conclusion of contracts; Habitually maintains stock from which goods are delivered; or Habitually secures orders mainly or wholly for the non-resident or certain related non-residents. Section 9 also recognises a significant economic presence in India as a form of business connection. This can potentially apply to digital and remote businesses even where they do not maintain a physical office in India. Accordingly, a foreign business may have a domestic-law business connection even if it does not have a PE under the applicable treaty. 2. The applicable DTAA India has entered into DTAAs with numerous countries, including the UK, Germany, France, the Netherlands, Belgium, Ireland, Italy, Spain, Sweden, Switzerland and other European jurisdictions. Section 159 of the Income-tax Act, 2025 provides the legislative basis for applying these tax treaties. Where a DTAA applies, the foreign taxpayer may generally rely on the provision that is more beneficial Indian domestic law or the treaty subject to specified anti-avoidance provisions and eligibility requirements. Therefore, the correct analysis is: Determine whether a business connection exists under Section 9; Examine whether a PE exists under Article 5 of the relevant DTAA; Check whether the DTAA has been modified by the MLI; Apply the more beneficial provision where legally available; and Attribute the appropriate income or profits to the Indian activities. A foreign company claiming treaty protection must ordinarily establish its treaty residence and satisfy the applicable documentation requirements, including obtaining a Tax Residency Certificate. 3. The Multilateral Instrument The Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting, commonly called the MLI, may modify the operation of an existing Indian DTAA. The effect of the MLI is not identical for every treaty. It depends on whether India and the other country have both listed the treaty as a covered tax agreement and whether their respective reservations and notifications match. Relevant MLI provisions may: Expand dependent-agent PE rules; Address commissionaire and similar arrangements; Restrict preparatory or auxiliary activity exemptions; Prevent fragmentation of connected business activities; and Counter the artificial splitting of construction contracts. The original DTAA should therefore not be read in isolation. The treaty, relevant protocol, MLI positions and synthesised treaty text must be examined together. What Types of PE Can Arise in India? Fixed-place PE A fixed-place PE may arise where a foreign enterprise has a sufficiently permanent place of business in India through which it conducts its business. The usual tests are: Is there a place of business in India? Is that place fixed or sufficiently permanent? Is the place at the disposal of the foreign enterprise? Is the foreign enterprise carrying on its business through that place? Are the activities substantive rather than merely preparatory or auxiliary? Potential examples include an office, project site, workshop, warehouse or dedicated premises within an Indian subsidiary’s or customer’s office. A home office used by an employee may also require examination. Remote working from India does not automatically create a PE, but the risk increases where the arrangement is continuing, commercially necessary and effectively required or accepted by the foreign employer. Dependent-agent PE A foreign company may create a dependent-agent PE even without maintaining premises in India. This risk commonly arises where an Indian employee, consultant, distributor or group company acts on behalf of the foreign enterprise and: Habitually concludes contracts; Habitually negotiates essential contractual terms; Plays the principal role leading to contracts; Regularly secures orders for the foreign company; Maintains and delivers goods on its behalf; or Works almost exclusively for the foreign enterprise without genuine independence. Merely arranging for contracts to be signed outside India may not prevent a PE … Read more