TMI Blog2005 (6) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... tification of certain mistakes said to have crept in Tribunal's order dt. 26th Feb., 2004. 2. By way of this rectification petition, the assessee/applicant points out that the Tribunal's aforesaid order is vitiated by a mistake apparent on record inasmuch as the said order holds that the provisions of art. 7 of the Indian Mauritius DT AA are not applicable on the facts of this case whereas the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent conclusion. As held by Hon'ble Calcutta High Court in the case of R.L. Rajgarhia VS. ITO (1977) 107 ITR 347 (Cal), the Tribunal is not entitled or competent to enlarge the controversy and decide an issue not before the Tribunal. In the case before us, the AO as well as the CIT(A) have held that the provisions of art. 7 are applicable. Their case, however, was that even though provisions of ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat, in case his case fails on the touchstone of art. 8 and accordingly, provisions of art. 7 are to be applied, the income is to be taxed on net basis and only in case the assessee can be said to have a Permanent Establishment (PE) in India. It was also the assessee's contention that the assessee did not have any PE in India in terms of the definition of that expression under the India Mauritius ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndian IT Act, as per s. 44B r/w s. 5(2) of the Act." We are of the considered view that it is at this stage that the Tribunal indeed committed a mistake apparent on record which needs to be rectified. It was not open to the Tribunal to hold that provisions of art. 7 do not apply to the facts of this case when it was an uncontested position before the Tribunal. What was really required to be examin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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