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2009 (4) TMI 505 - AT - Income TaxDTAA between India and South Korea - No PEs or Liaison Office - Survey - Reopening - The case of the assessee would have been covered under art. 5(4)(e) if the LO is maintained solely for the purpose of advertising, supply of information, scientific research or any other activity if it has a preparatory or auxiliary character in the trade or business of the enterprise - In the instant case, the LO is having a freedom to fix the sale price and to conclude the contract provided the sale prices are within the band of profit margin communicated by the head office - Held that: the AO was justified in holding that LO is a PE and therefore, income attributable to LO will be taxable as per art. 7 of the DTAA - The learned CIT(A) held that income of the non-resident assessee is not taxable under 9(1)(i) or under the DTAA and therefore has not decided the issue regarding validity of reopening of assessment and the quantum of profit attributable to the PE - as per DTAA, the profit attributable to the LO held as PE in India is taxable and therefore, the learned CIT(A) will have to adjudicate the issue on which he has not recorded his finding - Decided against the assessee
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