Delhi ITAT rejects PE-constitution in India for Samsung Electronics (a Korean company- assessee) through the seconded expatriate employees operating from the premises of Samsung India (assessee’s subsidiary) for AYs 2004-05 to 2009-10; Based on the statements of employees recorded during the survey conducted at Samsung India’s premises, ITAT notes that the expat employees’ activities relate to the business of Indian subsidiary and communication between assessee, its Indian subsidiary and expat employees relates to stock verification, specificity of the products, their designs according to the preferences of the Indian consumers, the market strategies to be adopted, etc; Holds that by way of such seamless communication, the expatriate employees were only discharging the duties of the subsidiary company towards the holding company, remarks that “Whatever the benefits that are derived by the Indian subsidiary by such communication are offered to tax in India.”, thus holds that activities of expat employees do not constitute a PE under Article 5(4) of Indo-South Korea DTAA ; Further, observes that there is no proof as to any management activity of assessee being conducted in India, also holds that even if the activities of seconded employees amount to rendering of services to subsidiary by assessee, no question of Service PE would still arise absent specific service PE clause in India-South Korea DTAA:ITAT
taxofindia 