However, at a certain point this activity may create a tax presence.
A tax presence means that the local tax authorities consider your business as local enough to tax you — even if you have no legal entity, branch, or registration. In tax treaties this is called a permanent estabishment, but the concept is broader.
If your activities create a tax presence, this can trigger obligations such as:
corporate income tax on locally attributable profits
local bookkeeping and reporting requirements
registration with tax authorities
penalties or retroactive tax assessments if risks are missed
The difficulty is that tax presence is not always obvious.
Many companies assume that “no company” automatically means “no tax”, which is not always correct.
Tax presence risks often arise when a company:
has employees or directors working from another country
uses local sales agents or representatives
carries out long-term projects or on-site activities
operates warehouses or fixed facilities
manages local operations from a home office
Whether these activities create a tax presence depends on how authorities apply these tax rules in practice.
Tax presence (permanent establishment) questions in India are handled in a litigation-heavy environment. The primary actors are the Income Tax Department (CBDT/Assessing Officers), the Transfer Pricing Officer (TPO) and Dispute Resolution Panel (DRP) for larger cases, with appeals moving to the Income Tax Appellate Tribunal (ITAT), High Courts and ultimately the Supreme Court of India.
In practice, India’s approach is strongly substance-based and people-focused. Once a PE is asserted, the next fight is usually profit attribution, often with transfer pricing methods and extensive documentation.
A permanent establishment is a treaty concept used to decide whether India may tax business profits of a foreign enterprise. The Income Tax Department’s DTAA library shows how Article 7 (business profits) links to the PE threshold (link).
India is known for close factual scrutiny of onshore activities, contract reality, and operational control. PE disputes often arise even where contracts are signed offshore, particularly in turnkey projects, services, and where local teams drive outcomes.
A major Supreme Court decision is Formula One World Championship Ltd (26 April 2017). The Court held a fixed place PE existed because the foreign enterprise had sufficient control and disposal over the circuit during the event, even though the event was short in duration (link).
The practical lesson is that India can treat “control and disposal” as decisive, even where presence is time-bound, if the place is used to carry on core business activities in India.
In DIT (International Taxation) v Morgan Stanley (9 July 2007), the Supreme Court addressed when a foreign enterprise can have a PE through an Indian captive/service setup, and how attribution interacts with arm’s length remuneration (link).
This case is frequently relied on for the point that back-office/captive services do not automatically create a PE of the foreign principal, but the factual line can shift where senior personnel, stewardship, or decision-making functions are actually performed in India.
In ADIT v E-Funds IT Solution Inc (24 October 2017), the Supreme Court reiterated that a fixed place PE requires (i) a specific, identifiable place and (ii) that the place is at the disposal of the foreign enterprise, and it rejected PE findings on the facts before it (link).
For practical structuring, E-Funds is often cited to argue that an Indian subsidiary providing services, and occasional visits for oversight/quality control, do not by themselves mean the foreign enterprise has a place “at its disposal” in India.
In Ishikawajima-Harima Heavy Industries Ltd v Director of Income Tax (4 January 2007), the Supreme Court addressed taxability in cross-border project structures and how treaty concepts interact with offshore supply and onshore activities (link).
While later legislative changes and subsequent jurisprudence have evolved parts of the broader “offshore supply” debate, the case remains a key reference point in India for analysing how closely India links taxing rights to the existence and role of onshore activities.
A widely cited High Court decision is Nortel Networks India International Inc (Delhi High Court, 4 May 2016), which is often referenced in discussions on whether an Indian entity’s role in project execution and contracting activities can support a PE assertion for the foreign enterprise (link).
The practical takeaway is that India’s PE analysis in complex contracts is highly factual: authorities and courts examine whether the India-based entity is merely supporting, or actually discharging key obligations of the foreign enterprise under the relevant contracts.
A recent and important Supreme Court decision is Hyatt International Southwest Asia Ltd (24 July 2025). The Court examined whether “strategic oversight” and continuous involvement in hotel operations in India created a fixed place PE under the India–UAE treaty, and upheld PE findings on the facts (link).
This case is particularly relevant for groups providing recurring management, operational oversight, brand standards, or embedded governance services into India-based operations without incorporating locally.
For service PE clauses, the Delhi High Court decision in Commissioner of Income Tax (International Taxation) v Clifford Chance Pte Ltd (4 December 2025) is a concrete example of how Indian courts can scrutinise treaty day-count thresholds and what qualifies as “services rendered” for counting purposes (link).
For companies delivering professional services into India, the operational implication is that India will examine travel calendars, role descriptions, billing narratives, and whether “business development” days are actually service days under the treaty language.
Even when a PE is established, the major dispute often shifts to how much profit is attributable to India. The Income Tax Department published a committee report on profit attribution to PEs in India, which is useful for understanding the policy direction and attribution frameworks used in practice (link).
Scrutiny typically increases where India-based teams negotiate or effectively finalise commercial terms, where project managers or technical teams in India discharge core contractual obligations, where “oversight” becomes continuous operational control, where service delivery days in India approach treaty thresholds, or where business processes in India are essential to revenue generation.
If a PE is asserted, India may assess business profits attributable to India, often alongside transfer pricing reviews and detailed documentation requests. Disputes can move through DRP/ITAT and courts, and retroactive years may be reopened depending on facts and procedural posture.
In India, incorporation often becomes the cleaner option once people-based activity is intended to be ongoing, when India-based teams are commercially decisive, when operational oversight becomes continuous, or when recurring services push toward treaty day thresholds. At that stage, incorporation typically provides clearer operational boundaries and more predictable compliance.
Across tax systems, the assessment of tax presence typically follows a consistent set of underlying principles:
Substance over legal form
Actual business activities and economic reality carry more weight than contractual labels or formal structures.
People and decision-making
Where key individuals work, negotiate, manage operations or make decisions is often decisive.
Continuity and regularity
Ongoing or recurring activities are treated differently from occasional or incidental involvement.
Economic value creation
Where value is created, managed or controlled is a central factor in tax attribution.
These principles explain why the absence of a legal entity does not automatically eliminate tax exposure.
Tax presence risk is most commonly associated with the following types of activities:
Employees or directors working structurally from another jurisdiction
Sales personnel or agents with decision-making authority
Long-term or recurring on-site projects
Fixed places of business such as offices, warehouses or workshops
Home offices used as a regular base for business operations
The decisive factor is rarely a single activity, but rather the combination, duration and functional role of these activities.
Certain activities are widely regarded as preparatory or auxiliary and typically do not, on their own, create tax presence:
Occasional business travel
Pure marketing or promotional activities
Independent agents acting in the ordinary course of their business
Short-term presence without operational continuity
Supporting functions without decision-making authority
Risk may still arise when these activities evolve or are combined with more substantive functions.