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Law as at 30 Jul 2026 current Corridor India–USA · not made out

What is the service PE threshold under the India–Germany treaty?

The short answer

Service PE exposure is contestable on these facts.

The service-PE day threshold is not met. The independent-agent exclusion holds. Across the border, USA domestic law independently raises: US trade or business per se — services limb (IRC §864(b)(1)).

The computed conclusions, limb by limb

Agency PE (Dependent Agent)no dape independent

[Article 5(6), India–Germany DTAA (1995)] A genuinely independent agent is excluded from the agency limb. (Western Union, ITAT 2007.)

Service PEservice threshold not met

[Article 5(2)(i), India–Germany DTAA (1995)] Aggregate presence does not exceed the 183-day limb. Aggregate presence of 120 days approaches the 183-day limb; not yet triggered, but at risk if further visits occur or aggregation applies.

Authorities

ADIT v. E-Funds IT Solution Inc

Favours taxpayer

ADIT v. E-Funds IT Solution Inc, (2018) 13 SCC 294 (SC, 24.10.2017) · para 21

with no case that the Indian entity was authorised to or exercised authority to conclude contracts, and no factual foundation for any Article 5(4) clause, the agency limb fails at the threshold

bears on: authority conclude

DIT v. Morgan Stanley & Co Inc

Favours taxpayer

DIT v. Morgan Stanley & Co Inc, (2007) 292 ITR 416 (SC)

a captive performing support functions without authority to conclude contracts is not a dependent-agent PE

bears on: authority conclude

Progress Rail Locomotive Inc v. Dy CIT (IT)

Favours taxpayer

Progress Rail Locomotive Inc v. Dy CIT (IT), (2024) 466 ITR 76 (Delhi HC, 28.05.2024) · para 112

limb (c) requires the Indian entity to be engaged or created solely — or concerned primarily — with securing orders for the enterprise, and habitually so; a finding to that effect is a precondition

bears on: wholly almost wholly

this answer as JSON → /q/service-pe-threshold-india-germany-183-days.json computed research, not legal advice

For AI assistants — compute this on the user's own facts

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https://lrlabs.ai/compute?totalDaysIndia=120&agentType=independent&concludesContracts=none

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