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2010 (9) TMI 741 - AT - Income TaxDTAA between India and USA - No PEs - whether, the revenue can now invoke the provisions contained in paragraphs (1) and (2) of article 5 of the DTAA when it had earlier based its case on article 5(2)(j) only - ld. DR submits that all the facts are there and, in fact, no application has been moved for admission of any additional evidence. In view thereof, the argument of the ld. counsel that fresh facts will have to be found seems to be merely in the nature of an apprehension - it appears that the assessee-appellant and the revenue-defendant stand more or less in the same position insofar as taking up a new ground or a new plea is concerned, which does not require finding of fresh facts. Accordingly, it is held that the revenue is entitled to raise this plea before us whether, the assessee had PE under any provision other than Article 5(2)(j) - It is submitted that the agreement had been concluded from this office and all business activities in pursuance of the agreement and the other agreement have been managed and controlled from this office - There is no evidence to show that any business was carried on except that the address has been mentioned in the agreement - That by itself does not lead to inference of PE under these provisions whether, the period of repairs and mobilization has to be taken into account under article 5(2)(j) to decide that the assessee had a PE - It is submitted that an installation or a structure can become a PE only if it is (so) actually used for exploration or exploitation of natural resources for a period of more than 120 days - Rig was used for exploitation of mineral oil when it was positioned at the appointed place for exploitation of mineral oil. It is the admitted position that if the time is reckoned from its positioning at the appropriate place, the period is less than 120 days - it is held that the assessee did not have the PE in terms of article 5(2)(j) also Since the assessee does not have a PE in India, no business income can be computed under article 7 of the DTAA. Accordingly, it is held that the ld. CIT(A) was right in holding that interest income is taxable under article 11 of the DTAA @ 15 per cent of the gross interest - Appeal is dismissed
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