Australia / India · Article 5 · Australia–India 1991 Agreement

ARTICLE 5 Permanent Establishment (1) For the purposes of this Agreement, the term "permanent establishment" means a fixed place of business through which the business of an enterprise is wholly or partly carried on. (2) The term "permanent establishment" shall include especially: (a) a place of management; (b) a branch; (c) an office; (d) a factory; (e) a workshop; (f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources; (g) a warehouse in relation to a person providing storage facilities for others; (h) a farm, plantation or other place where agricultural, pastoral, forestry or plantation activities are carried on; (i) premises used as a sales outlet or for receiving or soliciting orders; (j) an installation or structure, or plant or equipment, used for the exploration for or exploitation of natural resources; (k) a building site or construction, installation or assembly project, or supervisory activities in connection with such a site or project, where that site or project exists or those activities are carried on (whether separately or together with other sites, projects or activities) for more than 6 months. (3) An enterprise shall be deemed to have a permanent establishment in one of the Contracting States and to carry on business through that permanent establishment if:

(a) substantial equipment is being used in that State by, for or under contract with the enterprise; (b) it carries on activities in that State in connection with the exploration for or exploitation of natural resources in that State; or (c) it furnishes services, including managerial services and those mentioned in subparagraphs (3) (h) to (k) of Article 12 but not those services in respect of which payments or credits that are royalties as defined in Article 12 are made, within one of the Contracting States through employees or other personnel, but only if those services are furnished within that State: (i) for a period or periods aggregating more than 90 days within any 12 month period; or (ii) for another enterprise if both enterprises are within either of the relationships described in subparagraphs (1) (a) and (b) of Article 9. (4) An enterprise shall not be deemed to have a permanent establishment merely by reason of: (a) the use of facilities solely for the purpose of storage or display of goods or merchandise belonging to the enterprise; (b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage or display; (c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise; (d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or of collecting information, for the enterprise; or (e) the maintenance of a fixed place of business solely for the purpose of advertising, for the supply of information, for scientific research, or for similar activities which have a preparatory or auxiliary character, for the enterprise. However, the preceding provisions of this paragraph shall not apply where an enterprise of one of the Contracting States maintains in the other Contracting State a fixed place of business for any purpose other than those specified in this paragraph. (5) A person acting in one of the Contracting States on behalf of an enterprise of the other Contracting State—other than an agent of an independent status to whom paragraph (6) applies—shall be deemed to be a permanent establishment of that enterprise in the firstmentioned State if:

(a) the person has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless the person's activities are limited to the purchase of goods or merchandise for the enterprise; (b) the person has no such authority, but habitually maintains in that State a stock of goods or merchandise from which the person regularly delivers goods or merchandise on behalf of the enterprise; (c) the person habitually secures orders in that State, wholly or principally for the enterprise itself or for the enterprise and other enterprises controlling, or controlled by or subject to the same common control as, that enterprise; or (d) in so acting, the person manufactures or processes in that State for the enterprise goods or merchandise belonging to the enterprise. (6) An enterprise of one of the Contracting States shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a broker, general commission agent or any other agent of an independent status, where that person is acting in the ordinary course of the person's business as such a broker or agent. However, when the activities of such a broker or agent are carried on wholly or principally on behalf of that enterprise itself or on behalf of that enterprise and other enterprises controlling, or controlled by or subject to the same common control as, that enterprise, the person will not be considered a broker or agent of an independent status within the meaning of this paragraph. (7) The fact that a company which is a resident of one of the Contracting States controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself make either company a permanent establishment of the other. (8) The principles set forth in the preceding paragraphs of this Article shall be applied in determining for the purposes of paragraph (5) of Article 11 and paragraph (5) of Article 12 of this Agreement whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of one of the Contracting States, has a permanent establishment in one of the Contracting States.

Source & edition

Income Tax (International Agreements) Amendment Act (No. 2) 1991, No. 214 of 1991, Schedule (inserted Schedule 35)

Official online text · named schedule Official source website ↗

SHA-256 bf8afdefeda20876ad24e267d5dce03c424250bb20703dac43472bd71b65a6e2

Digest scope: exact complete named published source-unit capture; not full statutory volume or PDF binary

Published source-unit scope

Complete inserted Schedule35 Australia–India1991Agreement, ending before Schedule36Australia–Poland. Entire parent1991amending Act capture retained complete.

Unit citation: Income Tax (International Agreements) Amendment Act (No. 2) 1991, No. 214 of 1991, Schedule (inserted Schedule 35)
Selected source unit: Complete named published schedule; exact retained-source slice
Parent statutory volume: Retained complete; only the named source unit is rendered here
Scope admission: Approved for noindex source-unit research preview; not a legal/currentness review

Source-scope approval receipt · Retained parent transport capture

Source language clause (not a claim of supplied translations): DONE in duplicate at CANBERRA this TWENTY-FIFTH day of JULY One thousand nine hundred and ninety-one, in the English and Hindi languages, both texts being equally authentic, the English text to be the operative one in any case of doubt.

Edition

1991 base Agreement, signed 25 July 1991; 2011 amending Protocol and MLI modifications not incorporated

Text available here

English

Review

Unreviewed; qualified human review pending

Current applicability

Not verified

Signature

1991-07-25

Languages recorded in source metadata: English. This is not a promise of available text or a translation.

Edition notes and known limitations

This is the unamended1991Agreement, not an assistant-generated consolidation.

Known Protocol signed16December2011 and MLI modifications are not incorporated or claimed acquired in this source.

Native ATO MLI publication and Indian CBDT HTML returned403. Treasury-linked AustLII reproduction also returned403; no denied source was used as an original.

English and Hindi are equally authentic according to the source closing; English is operative in a case of doubt. Only the published English manifestation is supplied.

Repeated statutory pagination headings remain separate publisher-pagination supplements.

Official statutory online text capture, not a verified Original PDF or original HTML transport-byte capture.

Only English manifestation supplied; no invented translation or cross-language alignment.

Publisher wording including spelling, dash duplication and any [Signatures omitted] notice is preserved as published.

Preamble, signature and structural material are retained as reader supplements and search_units; importer must render and index them.

No independent present legal applicability, full amendment chain, or human wording review claimed.

Source authority, text completeness and currentness still require human review.

The named published source unit is approved for this noindex research preview. The parent volume is retained separately; this reader covers only the named published source unit.