Non-resident person: FBR expands scope of definition of ‘Permanent Establishment’

ISLAMABAD: The Federal Board of Revenue (FBR) has expanded the scope of definition of Permanent Establishment in Pakistan of non-resident person under the Finance Bill 2023.

A tax expert explained that the term Permanent Establishment (PE) is amended to remove the words fixed where ever mentioned and service provided through another entity will now be considered as PE of the Non-Resident person. The scope of definition is being enhanced.

To strengthen the taxation of the PE of a non-resident person in Pakistan the definition clause provided under sub-section 41 of Section 2 of the Income Tax Ordinance, 2001 has been changed by the federal government through budget 2023-2024 to broaden the tax net in Pakistan and delete the word “Fixed” in place of business and inducted the term “entity” in the definition clause.

The federal government has introduced vital changes in the definition clause and the word “Fixed Place” of business in Pakistan has been changed with any place of business in Pakistan and the furnishing of services, including consultancy services, by any person through employees or other personnel engaged by the person for such purpose, a new word “entity” has been inducted in the definition of PE in Pakistan.

As per current prevailing law in Pakistan in the light of sub-section 41 of Section 2 of the Income Tax Ordinance, 2001, “permanent establishment” in relation to a person, means a [fixed] place of business through which the business of the person is wholly or partly carried on, and includes;

(a) a place of management, branch, office, factory or workshop, [premises for soliciting orders, warehouse, permanent sales exhibition or sales outlet,] other than a liaison office except where the office engages in the negotiation of contracts (other than contracts of purchase);

(b) a mine, oil or gas well, quarry or any other place of extraction of natural resources; [(ba) an agricultural, pastoral or forestry property;]

(c) a building site, a construction, assembly or installation project or supervisory activities [connected] with such site or project [but only where such site, project and its [connected] supervisory activities continue for a period or periods aggregating more than ninety days within any 12-month period];

(d) the furnishing of services, including consultancy services, by any person through employees or other personnel engaged by the person for such purpose;

(e) a person acting in Pakistan on behalf of the person (hereinafter referred to as the “agent other than an agent of independent status acting in the ordinary course of business as such, if the agent [(i) has and habitually exercises an authority to conclude contracts on behalf of the other person or habitually concludes contracts or habitually plays the principal role leading to the conclusion of contracts that are routinely concluded without material modification by the person and these contracts are? (a) in the name of the person; or (b) for the transfer of the ownership of or for the granting of the right to use property owned by that enterprise or that the enterprise has the right to use; or (c) for the provision of services by that person; or”] (ii) has no such authority, but habitually maintains a stock in-trade or other merchandise from which the agent regularly delivers goods or merchandise on behalf of the other person; or Explanation.—For removal of doubt, it is clarified that an agent of independent status acting in the ordinary course of business does not include a person acting exclusively or almost exclusively on behalf of the person to which it is an associate; or

(f) any substantial equipment installed, or other asset or property capable of activity giving rise to income;

(g) a fixed place of business that is used or maintained by a person if the person or an associate of a person carries on business at that place or at another place in Pakistan and (i) that place or other place constitutes a permanent establishment of the person or an associate of the person under this sub-clause; or (ii) business carried on by the person or an associate of the person at the same place or at more than one place constitutes complementary functions that are part of a cohesive business operation. Explanation.—For the removal of doubt, it is clarified that (A) the term ”cohesive business operation” includes an overall arrangement for the supply of goods, installation, construction, assembly, commission, guarantees or supervisory activities and all or principal activities are undertaken or performed either by the person or the associates of the person; and (B) supply of goods include the goods imported in the name of the associate or any other person, whether or not the title to the goods passes outside Pakistan.

Copyright Business Recorder, 2023