Mumbai tribunal affirms territorial nexus as essential in determining attributable profits

International Tax Review is part of Legal Benchmarking Limited, 1-2 Paris Garden, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Mumbai tribunal affirms territorial nexus as essential in determining attributable profits

Sponsored by

logo.png
India map 600 x 375

The Mumbai Income Tax Appellate Tribunal (tribunal) has held that a territorial nexus is necessary for determining profits attributable to operations carried out in India. Agency commission accrued, or arising, outside of India is not taxable under domestic laws.

Under the provisions of the Income-tax Act of 1961, income that has arisen directly or indirectly from a business connection is considered taxable in India. In business cases where not all operations are carried out in India, the income deemed taxable is considered 'reasonably attributable' to operations carried out in India. The applicability of this provision has been upheld in several judicial precedents.

In the case dealt with by the tribunal, the taxpayer is a foreign company (tax resident of Hong Kong) and is appointed by a television channel as an agent to:

  • Sell advertising air-time on the channels;

  • Distribute the channels in the territories where the channels are broadcast; and

  • Procure syndication revenues from the content on the channels.

In a particular year, the taxpayer earned agency commission on advertising services in India, as well as outside India. However, at that particular time, India did not have a tax treaty with Hong Kong.

It appears that the foreign company had a business connection in India and income attributable to the business operations. As a result, the taxpayer was compensated with an amount equal to the profit earned by the channel companies and overseas entities that had merged into an Indian group entity.

Profit attribution was determined on sound transfer pricing (TP) principles and by applying a global profitability percentage.

The tax authorities accepted the TP methodology and profit margin. However, the tax authorities made an adjustment on the amount taxable by the taxpayer (i.e. commission received towards services rendered outside India). It was also argued that under the Act, certain offshore income earned by a non-resident (i.e. by way of interest/royalty/fees for technical services) is taxable in India, irrespective of the place of rendition of the services or the presence of a business connection in India.

Subsequently, the tribunal rejected the position of the tax authorities. In this case, reliance on the provisions relating to the taxation of certain offshore income was not applicable to the agency commission earned by the taxpayer.

The tribunal held that the income taxable in India will only be part of the income as 'reasonably attributable' to the operations carried out in India. The income which could be said to be taxable in India should have a 'territorial nexus'.

Since the commission fee was paid to the taxpayer outside India for services rendered outside India, the tribunal held that it was not attributable to operations in India and hence not taxable in India.

more across site & shared bottom lb ros

More from across our site

Canadian Prime Minister Mark Carney and US President Donald Trump have agreed that the countries will look to conclude a deal by July 21, 2025
The firm’s lack of transparency regarding its tax leaks scandal should see the ban extended beyond June 30, senators Deborah O’Neill and Barbara Pocock tell ITR
Despite posing significant administrative hurdles, digital services taxes remain ‘the best way forward’ for emerging economies, says Neil Kelley, COO of Ascoria
A ‘joint understanding’ among G7 countries that ‘defends American interests’ is set to be announced, Scott Bessent claimed
The ‘big four’ firm’s inaugural annual report unveiled a sharp drop in profits for 2024; in other news, Baker McKenzie and Perkins Coie expanded their US tax benches
Representatives from the two countries focused on TP as they met this week to evaluate progress under a previously signed agreement – it is understood
The UK accountancy firm’s transfer pricing lead tells ITR about his expat lifestyle, taking risks, and what makes tax cool
Dolphin Drilling intends to discuss the final liability amount and manner of settlement with HM Revenue and Customs
Winning the case against the 20% VAT imposition was always going to be an uphill challenge for the claimants, UK tax advisers argue
A ‘paradigm shift’ in Chile’s tax enforcement requires compliance architecture built on proactive governance, strategic documentation and active monitoring of judicial developments
Gift this article