A foreign enterprise is not taxed on ordinary business profits merely because it earns from India; domestic nexus and the applicable treaty’s permanent-est
Finin2min summary
A foreign enterprise is not taxed on ordinary business profits merely because it earns from India; domestic nexus and the applicable treaty’s permanent-establishment threshold must be analysed together.
Source review date: 4 July 2026. Read with the official text and the facts of the transaction.
Legal anchors
- Domestic business-connection and source provisions
- Relevant DTAA Article 5 and Article 7
- CBDT guidance and binding judgments
How to analyse it
- Test fixed place, service, construction, installation, agency and digital nexus separately.
- Assess disposal, permanence and business activity at the Indian location.
- Review authority to conclude contracts and the principal role leading to contracts.
- Attribute only profits economically connected with the Indian nexus, using defensible records.
Practical illustration
A foreign engineering company sends specialists to India for repeated project visits. Travel days, project duration, site control, subcontracting and treaty-specific service-PE language may alter the result.
What can go wrong?
- Counting days without treaty-specific rules
- Treating a subsidiary as an automatic PE
- Ignoring attribution after concluding that a PE exists
Evidence pack
- Travel calendar
- Organisation and reporting lines
- Office/site access evidence
- Contracts and revenue attribution working
Decision workflow
- Freeze the facts and effective date.
- Identify the controlling Act, rule, notification, circular and jurisdictional overlay.
- Prepare a calculation or exposure note.
- Collect the evidence pack before filing, payment, signing or response.
- Record reviewer conclusion and assumptions.
Quick Q&A
Is the result automatic?
No. Test fixed place, service, construction, installation, agency and digital nexus separately.
What is the most important control?
Attribute only profits economically connected with the Indian nexus, using defensible records.
What should be escalated?
Counting days without treaty-specific rules, especially where money, deadlines, enforcement, personal liability or irreversible transaction steps are involved.
Official source trail
Secondary commentary may help interpretation, but it is not the source of law.