Can the officer apply the PPT to my India-Ireland treaty claim just because both countries signed the MLI?
No, on this Tribunal's view. The India-Ireland treaty is a covered tax agreement under the MLI, but the Tribunal held that no MLI provision — including the PPT — can be given effect in India without a separate notification under s.90(1), and none had been issued. The treaty benefits on aircraft lease rentals were allowed, the Tribunal also holding the lessors had no permanent establishment in India and that Article 8 covers the rental of aircraft in international traffic.
Decided by the ITAT (Income Tax Appellate Tribunal, Mumbai Bench 'I' - Amit Shukla, Judicial Member and Ms. Padmavathy S., Accountant Member (order authored by Amit Shukla)) on 2025-08-13, reported as [2025] 177 taxmann.com 579 (Mumbai - Trib.); IT Appeal Nos. 1122, 1106, 1198, 1157, 1108, 1156 and 1155 (Mum.) of 2025 with SA Nos. 38, 37, 41, 42, 36, 40 and 39 (Mum.) of 2025, assessment year 2022-23. It bears on section 90, section 90(1), section 9(1)(vi), section 144C of the Income Tax Act 1961, in Residence & Treaty Benefit, Assessment & Scrutiny and How Tax Law Is Read matters.
This is a jurisdictional answer rather than a factual one, which makes it much cheaper to run than a substance defence: if it holds, the officer never gets to the merits of the PPT at all. It matters most to Irish aircraft lessors, but the reasoning is general — it turns on the Supreme Court's rule that a treaty or a modification to one has no effect in Indian law until it is notified under s.90(1). The department's counter is CBDT Circular No. 01/2025, which assumes throughout that the PPT already operates on MLI-covered treaties and never mentions a separate notification.
Binding on the AO and CIT(A) within the Tribunal's jurisdiction. Persuasive elsewhere.
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Seven Irish aircraft leasing companies, each holding a valid Tax Residency Certificate from the Irish Revenue, had leased aircraft to InterGlobe Aviation Limited (IndiGo) under dry operating leases and returned nil income for assessment year 2022-23, claiming that lease rentals were not royalty within Article 12(3)(a) of the India-Ireland treaty, which excludes payments for the use of aircraft, that in the absence of a permanent establishment the income was business profits taxable only in Ireland under Article 7, and, without prejudice, that it was exempt under Article 8(1). In the lead matter the leases, three of them dated 1 February 2019, predated the MLI's effect from 1 April 2020. The Assessing Officer invoked Articles 6 and 7 of the Multilateral Instrument, holding the Principal Purpose Test unsatisfied because the ultimate parent was a Cayman Islands fund, the directors sat on other Irish boards, day-to-day management was outsourced to a licensed Irish corporate services provider and lease management functions to a London bank; in the alternative he treated the rentals as royalty under s.9(1)(vi), asserted a fixed place permanent establishment, said Article 8 did not apply because IndiGo was a domestic airline, and characterised the leases as finance leases. The Dispute Resolution Panel upheld that approach and attributed 25 per cent of gross rentals as profits of the alleged permanent establishment, taxed at 40 per cent, an effective 10 per cent of gross receipts. Both India and Ireland had ratified the MLI and the treaty is a covered tax agreement, but the consequence of the MLI for that treaty had admittedly not been separately notified under s.90(1).
The appeals were allowed. The Tribunal decided the treaty point on three independent footings, which matters because the decision does not stand or fall on the notification alone. First, as a threshold matter, Articles 6 and 7 of the MLI could not be invoked because no notification under s.90(1) had incorporated them into the India-Ireland treaty (para 47). Second, and on the assumption that the MLI did apply, the Principal Purpose Test was not satisfied on the facts: a valid TRC had been produced, the company was managed from Ireland through a licensed management company with Irish directors, bankers, company secretary and legal advisers, it was staffed, incurred genuine expenditure and bore real economic risk, and the mere fact that the ultimate shareholder was resident outside Ireland furnished no basis to invoke the test (paras 64, 67, 68 and 74). Third, and alternatively, even under Articles 6 and 7 relief from source taxation of aircraft leasing is a stated and substantive object of the treaty, so the benefit accorded with its object and purpose (paras 75 and 79). On the merits the leases were held to be dry operating leases, not finance leases, so the income could not be characterised as interest (para 104); the assessee had no permanent establishment in India under Article 5 (paras 105 and 106); and Article 8(1) applied, IndiGo being an international carrier and the leased aircraft being deployed on at least some international sectors, with Article 8(1) prevailing over Article 7 in any event (paras 105 and 106).
On the treaty as an instrument of domestic law, the Tribunal applied the Supreme Court's decision in Nestle SA: a notification under s.90(1) is an indispensable and mandatory condition before any court, authority or tribunal can give effect to a treaty or to any protocol or instrument that purports to alter its terms (para 41). It was not enough that both the India-Ireland treaty and the MLI had been notified; what had not been notified was the consequence of the MLI for that treaty, and the revenue admitted as much (paras 40 and 42). The Tribunal rejected reliance on the synthesised text, holding it an expository compilation with no greater legal sanctity than the unincorporated MLI provisions and not itself a binding instrument, a description the revenue's own explanatory note supports (paras 42 and 43). It added that the MLI's own design - each State depositing its covered agreements, positions and reservations, subject to reciprocity - reinforces that domestic effect depends on the domestic mechanism (para 44), and that efficiency in the multilateral sphere cannot displace the rule that a modification be received into municipal law by the prescribed process (para 52). On the Principal Purpose Test it took the OECD BEPS Action Plan 6 guidance: the test is a general anti-abuse rule of last resort, not triggered because a transaction is structured tax-efficiently or because treaty benefits were considered, and the enquiry is whether a treaty benefit was a principal purpose divorced from genuine commercial considerations and contrary to the treaty's object (paras 56, 61 and 62). A TRC issued by the Irish authorities is presumed validly issued, and cannot be gone behind absent compelling reasons (para 57). The magnitude of the tax saved is a relevant circumstance but not determinative, and the revenue had not discharged the burden of showing a dominant treaty-shopping purpose (para 69). On characterisation the Tribunal read the lease clauses - the lessee is not the owner, the lessor may repossess on default, the aircraft must be returned at the end of the term, the lessee must display the owner's name - together with DGCA guidelines, the Reserve Bank's distinction between operating and finance leases, the statutory definitions in the SARFAESI Act and the Recovery of Debts and Bankruptcy Act under which a finance lease is one where the lessee becomes owner at the end of the term or on paying a residual amount, and English authority, and concluded the leases were operating leases (paras 87, 89 and 103). On permanent establishment and Article 8 it adopted its own order of the same date in Sunflower Aircraft Leasing Ltd.: operational control over deployment, routing, scheduling and crewing vested exclusively with IndiGo, and the rights the lessor retained were standard protections of asset value rather than indicia of the asset being at its disposal, with no personnel stationed in India (para 105).
We are therefore constrained to hold, as a threshold matter, that Articles 6 and 7 of the MLI cannot be invoked against the assessee in the present assessment year, inasmuch as there is no Section 90(1) notification incorporating those provisions into the India-Ireland DTAA. Consequently, the Revenue's attempt to deny treaty benefits by invoking the MLI's Principal Purpose Test must, on this ground alone, fail.
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Handle my notice → Ask a CA on WhatsAppNo, on this Tribunal's view. The India-Ireland treaty is a covered tax agreement under the MLI, but the Tribunal held that no MLI provision — including the PPT — can be given effect in India without a separate notification under s.90(1), and none had been issued. The treaty benefits on aircraft lease rentals were allowed, the Tribunal also holding the lessors had no permanent establishment in India and that Article 8 covers the rental of aircraft in international traffic. This was decided by the ITAT (Income Tax Appellate Tribunal, Mumbai Bench 'I' - Amit Shukla, Judicial Member and Ms. Padmavathy S., Accountant Member (order authored by Amit Shukla)) and bears on section 90, section 90(1), section 9(1)(vi), section 144C of the Income Tax Act 1961. It is reported as [2025] 177 taxmann.com 579 (Mumbai - Trib.); IT Appeal Nos. 1122, 1106, 1198, 1157, 1108, 1156 and 1155 (Mum.) of 2025 with SA Nos. 38, 37, 41, 42, 36, 40 and 39 (Mum.) of 2025, assessment year 2022-23. This is a jurisdictional answer rather than a factual one, which makes it much cheaper to run than a substance defence: if it holds, the officer never gets to the merits of the PPT at all. It matters most to Irish aircraft lessors, but the reasoning is general — it turns on the Supreme Court's rule that a treaty or a modification to one has no effect in Indian law until it is notified under s.90(1). The department's counter is CBDT Circular No. 01/2025, which assumes throughout that the PPT already operates on MLI-covered treaties and never mentions a separate notification. If it applies to you, the first step is this: Check whether a notification under s.90(1) has been issued that incorporates the MLI's modifications into your particular treaty, and put the absence of one at the front of the reply rather than at the end.
Seven Irish aircraft leasing companies, each holding a valid Tax Residency Certificate from the Irish Revenue, had leased aircraft to InterGlobe Aviation Limited (IndiGo) under dry operating leases and returned nil income for assessment year 2022-23, claiming that lease rentals were not royalty within Article 12(3)(a) of the India-Ireland treaty, which excludes payments for the use of aircraft, that in the absence of a permanent establishment the income was business profits taxable only in Ireland under Article 7, and, without prejudice, that it was exempt under Article 8(1). In the lead matter the leases, three of them dated 1 February 2019, predated the MLI's effect from 1 April 2020. The Assessing Officer invoked Articles 6 and 7 of the Multilateral Instrument, holding the Principal Purpose Test unsatisfied because the ultimate parent was a Cayman Islands fund, the directors sat on other Irish boards, day-to-day management was outsourced to a licensed Irish corporate services provider and lease management functions to a London bank; in the alternative he treated the rentals as royalty under s.9(1)(vi), asserted a fixed place permanent establishment, said Article 8 did not apply because IndiGo was a domestic airline, and characterised the leases as finance leases. The Dispute Resolution Panel upheld that approach and attributed 25 per cent of gross rentals as profits of the alleged permanent establishment, taxed at 40 per cent, an effective 10 per cent of gross receipts. Both India and Ireland had ratified the MLI and the treaty is a covered tax agreement, but the consequence of the MLI for that treaty had admittedly not been separately notified under s.90(1). The matter was decided on 2025-08-13 by the ITAT (Income Tax Appellate Tribunal, Mumbai Bench 'I' - Amit Shukla, Judicial Member and Ms. Padmavathy S., Accountant Member (order authored by Amit Shukla)). On those facts the ITAT held as follows. The appeals were allowed. The Tribunal decided the treaty point on three independent footings, which matters because the decision does not stand or fall on the notification alone. First, as a threshold matter, Articles 6 and 7 of the MLI could not be invoked because no notification under s.90(1) had incorporated them into the India-Ireland treaty (para 47). Second, and on the assumption that the MLI did apply, the Principal Purpose Test was not satisfied on the facts: a valid TRC had been produced, the company was managed from Ireland through a licensed management company with Irish directors, bankers, company secretary and legal advisers, it was staffed, incurred genuine expenditure and bore real economic risk, and the mere fact that the ultimate shareholder was resident outside Ireland furnished no basis to invoke the test (paras 64, 67, 68 and 74). Third, and alternatively, even under Articles 6 and 7 relief from source taxation of aircraft leasing is a stated and substantive object of the treaty, so the benefit accorded with its object and purpose (paras 75 and 79). On the merits the leases were held to be dry operating leases, not finance leases, so the income could not be characterised as interest (para 104); the assessee had no permanent establishment in India under Article 5 (paras 105 and 106); and Article 8(1) applied, IndiGo being an international carrier and the leased aircraft being deployed on at least some international sectors, with Article 8(1) prevailing over Article 7 in any event (paras 105 and 106).
On the treaty as an instrument of domestic law, the Tribunal applied the Supreme Court's decision in Nestle SA: a notification under s.90(1) is an indispensable and mandatory condition before any court, authority or tribunal can give effect to a treaty or to any protocol or instrument that purports to alter its terms (para 41). It was not enough that both the India-Ireland treaty and the MLI had been notified; what had not been notified was the consequence of the MLI for that treaty, and the revenue admitted as much (paras 40 and 42). The Tribunal rejected reliance on the synthesised text, holding it an expository compilation with no greater legal sanctity than the unincorporated MLI provisions and not itself a binding instrument, a description the revenue's own explanatory note supports (paras 42 and 43). It added that the MLI's own design - each State depositing its covered agreements, positions and reservations, subject to reciprocity - reinforces that domestic effect depends on the domestic mechanism (para 44), and that efficiency in the multilateral sphere cannot displace the rule that a modification be received into municipal law by the prescribed process (para 52). On the Principal Purpose Test it took the OECD BEPS Action Plan 6 guidance: the test is a general anti-abuse rule of last resort, not triggered because a transaction is structured tax-efficiently or because treaty benefits were considered, and the enquiry is whether a treaty benefit was a principal purpose divorced from genuine commercial considerations and contrary to the treaty's object (paras 56, 61 and 62). A TRC issued by the Irish authorities is presumed validly issued, and cannot be gone behind absent compelling reasons (para 57). The magnitude of the tax saved is a relevant circumstance but not determinative, and the revenue had not discharged the burden of showing a dominant treaty-shopping purpose (para 69). On characterisation the Tribunal read the lease clauses - the lessee is not the owner, the lessor may repossess on default, the aircraft must be returned at the end of the term, the lessee must display the owner's name - together with DGCA guidelines, the Reserve Bank's distinction between operating and finance leases, the statutory definitions in the SARFAESI Act and the Recovery of Debts and Bankruptcy Act under which a finance lease is one where the lessee becomes owner at the end of the term or on paying a residual amount, and English authority, and concluded the leases were operating leases (paras 87, 89 and 103). On permanent establishment and Article 8 it adopted its own order of the same date in Sunflower Aircraft Leasing Ltd.: operational control over deployment, routing, scheduling and crewing vested exclusively with IndiGo, and the rights the lessor retained were standard protections of asset value rather than indicia of the asset being at its disposal, with no personnel stationed in India (para 105). In the words reproduced by the source cited on this page: "We are therefore constrained to hold, as a threshold matter, that Articles 6 and 7 of the MLI cannot be invoked against the assessee in the present assessment year, inasmuch as there is no Section 90(1) notification incorporating those provisions into the India-Ireland DTAA. Consequently, the Revenue's attempt to deny treaty benefits by invoking the MLI's Principal Purpose Test must, on this ground alone, fail." The decision followed or applied Assessing Officer (International Taxation) v. Nestle SA [2023] 155 taxmann.com 384 / [2024] 296 Taxman 580 / [2023] 458 ITR 756 (SC) - followed (para 53); Celestial Aviation Trading 15 Ltd. v. Asstt. CIT (International Taxation) [2025] 176 taxmann.com 902 (Delhi - Trib.) - followed on operating versus finance lease (para 100); Sunflower Aircraft Leasing Ltd. v. ACIT [IT Appeal No. 1107 (Mum.) of 2025, dated 13-8-2025] - followed on permanent establishment and Article 8 (para 106).
It was decided by the ITAT on 2025-08-13 and is reported as [2025] 177 taxmann.com 579 (Mumbai - Trib.); IT Appeal Nos. 1122, 1106, 1198, 1157, 1108, 1156 and 1155 (Mum.) of 2025 with SA Nos. 38, 37, 41, 42, 36, 40 and 39 (Mum.) of 2025, assessment year 2022-23. Binding on the AO and CIT(A) within the Tribunal's jurisdiction. Persuasive elsewhere. A Tribunal decision binds the assessing officer and the Commissioner (Appeals) within that Tribunal's jurisdiction, and is persuasive before other benches. It is not binding on a High Court, and a contrary co-ordinate bench decision will be argued against you, so check whether the point has been taken the other way before you build a reply around it. On section 90, section 90(1), section 9(1)(vi), section 144C, the practical question is whether the facts of your own notice match the facts of this case closely enough for the same rule to apply.
It helps the taxpayer. The appeals were allowed. The Tribunal decided the treaty point on three independent footings, which matters because the decision does not stand or fall on the notification alone. First, as a threshold matter, Articles 6 and 7 of the MLI could not be invoked because no notification under s.90(1) had incorporated them into the India-Ireland treaty (para 47). Second, and on the assumption that the MLI did apply, the Principal Purpose Test was not satisfied on the facts: a valid TRC had been produced, the company was managed from Ireland through a licensed management company with Irish directors, bankers, company secretary and legal advisers, it was staffed, incurred genuine expenditure and bore real economic risk, and the mere fact that the ultimate shareholder was resident outside Ireland furnished no basis to invoke the test (paras 64, 67, 68 and 74). Third, and alternatively, even under Articles 6 and 7 relief from source taxation of aircraft leasing is a stated and substantive object of the treaty, so the benefit accorded with its object and purpose (paras 75 and 79). On the merits the leases were held to be dry operating leases, not finance leases, so the income could not be characterised as interest (para 104); the assessee had no permanent establishment in India under Article 5 (paras 105 and 106); and Article 8(1) applied, IndiGo being an international carrier and the leased aircraft being deployed on at least some international sectors, with Article 8(1) prevailing over Article 7 in any event (paras 105 and 106). It arises in Residence & Treaty Benefit, Assessment & Scrutiny and How Tax Law Is Read matters, on section 90, section 90(1), section 9(1)(vi), section 144C of the Income Tax Act 1961, and was decided by Income Tax Appellate Tribunal, Mumbai Bench 'I' - Amit Shukla, Judicial Member and Ms. Padmavathy S., Accountant Member (order authored by Amit Shukla). Before relying on it, read the source linked on this page and check whether it has since been distinguished, overruled or overtaken by an amendment to the Income Tax Act. In practice the steps that follow from it are these. Cite the Supreme Court's ruling reported at (2023) 458 ITR 756 for the proposition that a notification under the Act is a mandatory precondition to any Indian authority giving effect to a treaty or a protocol or amendment to it. Keep the substance defence pleaded in the alternative, because this point is untested above the Tribunal and CBDT Circular No. 01/2025 proceeds on the contrary assumption. For an aircraft lease, plead Article 8 separately: the Tribunal read 'rental' as deliberately included alongside 'operation' and refused to require the lessor to be an operating airline.
Still good law. Widely applied at Tribunal level. Besides the order itself, five later Tribunal decisions cite it, all in favour of the assessee: Sky High Lxxix Leasing Co. Ltd. v. ACIT (IT) [2025] 179 taxmann.com 264 (Mumbai - Trib.) [06-10-2025], Kosi Aviation Leasing Ltd. v. ACIT [2025] 179 taxmann.com 166 (Delhi - Trib.) [30-09-2025], Vertical Aviation no. 1 Ltd. v. ACIT [2025] 180 taxmann.com 111 (Delhi - Trib.) [31-10-2025], Sky High Xxxiv Leasing Company Ltd. v. ACIT (International Taxation) [2026] 186 taxmann.com 231 (Mumbai - Trib.) [30-04-2026] and Bluesky 19 Leasing Company Ltd. v. Dy. CIT [2026] 189 taxmann.com 3 (Mumbai - Trib.) [21-07-2026]. None of those has been read, so they are recorded here as citing this order rather than as expressly following it. A published firm note on Kosi Aviation states that the Delhi Bench reinforced the Mumbai Bench's position that Multilateral Instrument provisions cannot be invoked without a separate notification, but that is a secondary account and is not relied on for anything beyond the fact of the citation. Nothing overruling or doubting the order has been found. Note also that the decision is protected by its own alternative findings. Even if the notification point were reversed, the Bench held on the facts that the Principal Purpose Test was not satisfied — a valid Tax Residency Certificate, Irish management, Irish directors, staff, genuine expenditure and real economic risk — and, further, that the relief accorded with the object and purpose of the treaty. A practitioner should plead all three, in that order, rather than resting on the notification point alone; the validity alert records why. No source could be cited for that finding. Checking whether an authority still stands matters as much as knowing what it held: a decision may be overruled on one point and survive on another, or the provision it interprets may have been amended since. Read the source and the editor's note on this page before relying on it in a reply to an Assessing Officer or in an appeal.
The order is the Tribunal's own text. The Bench was Amit Shukla, Judicial Member, sitting with Ms. Padmavathy S., Accountant Member. Seven appeals with seven stay applications were disposed of by one consolidated order, all for assessment year 2022-23, and the order is self-numbering, so the paragraph locators on this entry are locators in the order and not in a report. Most important for a reader deciding how much weight to give this: the notification point is only the first of THREE independent grounds. The Bench went on to hold, assuming the Multilateral Instrument applied, that the Principal Purpose Test was not made out on the facts; and further that treaty relief for aircraft leasing accords with the object and purpose of the treaty. A reversal of the notification point would therefore not by itself decide the case the other way, and that is worth saying to a client who is told the order is fragile because it is under appeal. The Supreme Court decision the notification point rests on is Nestle SA, cited in the order in full. The order also collects some useful material on characterisation, which is why it repays reading even where the treaty point does not arise: the definitions of a finance lease in the SARFAESI Act and in the Recovery of Debts and Bankruptcy Act, and the Reserve Bank's position that a finance lease akin to external commercial borrowing is one where the lessee may purchase the aircraft at the end of the term. Two housekeeping notes. The order is indexed in some places under the second appellant, and its first appellant is rendered as 'Sky High Leasing Company Limited', without the numeral, whereas the coordinate Bench in Sky High XXXIV (30 April 2026) cites it as 'Sky High Appeal XLIII Leasing Company Ltd. and others'. The title used here follows the citing Bench and the reporter. And a limit on the locators. The order has been read as far as paragraph 68. The locators cited on this page above that number — paragraphs 74, 75, 79, 87, 89, 100 and 103 to 106 — have not been re-verified against the text, and a reader who needs to pinpoint the permanent establishment, Article 8 or characterisation findings should check the numbering himself. One last point of scope. The order decides seven appeals of seven Irish lessors for a single assessment year, and everything in it — the Tax Residency Certificates, the Irish management arrangements, the dry operating leases — is assessment-year specific. A later year has to be evidenced afresh. The order does not say what would follow if a synthesised text were notified, nor whether the same reasoning would defeat other MLI articles such as the modified permanent establishment rules. It does not address whether the general anti-avoidance rule in Chapter X-A could reach the same arrangement independently of the treaty. And because the permanent establishment and Article 8 findings are adopted from the Bench's companion order in Sunflower Aircraft Leasing Ltd., that order has to be read for the full reasoning on those two issues. This library shows the verification state of every entry openly. This entry has not yet been read in full by a chartered accountant. The summary reflects the sources listed on this page. Read the source before you rely on it in a reply to an Assessing Officer or in an appeal before the Commissioner (Appeals) or the Income Tax Appellate Tribunal.
The appeals were allowed. The Tribunal decided the treaty point on three independent footings, which matters because the decision does not stand or fall on the notification alone. First, as a threshold matter, Articles 6 and 7 of the MLI could not be invoked because no notification under s.90(1) had incorporated them into the India-Ireland treaty (para 47). Second, and on the assumption that the MLI did apply, the Principal Purpose Test was not satisfied on the facts: a valid TRC had been produced, the company was managed from Ireland through a licensed management company with Irish directors, bankers, company secretary and legal advisers, it was staffed, incurred genuine expenditure and bore real economic risk, and the mere fact that the ultimate shareholder was resident outside Ireland furnished no basis to invoke the test (paras 64, 67, 68 and 74). Third, and alternatively, even under Articles 6 and 7 relief from source taxation of aircraft leasing is a stated and substantive object of the treaty, so the benefit accorded with its object and purpose (paras 75 and 79). On the merits the leases were held to be dry operating leases, not finance leases, so the income could not be characterised as interest (para 104); the assessee had no permanent establishment in India under Article 5 (paras 105 and 106); and Article 8(1) applied, IndiGo being an international carrier and the leased aircraft being deployed on at least some international sectors, with Article 8(1) prevailing over Article 7 in any event (paras 105 and 106).
TaxSphere, “Sky High Appeal XLIII Leasing v ACIT”, https://taxnotice.vittsphere.com/caselaw/case/sky-high-appeal-xliii-v-acit-mli-notification/ (validity last checked 2026-08-20)
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