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2015 (11) TMI 806 - HC - Income TaxTaxability of income in India - whether income of an assessee arising from contract, in India, be treated as taxable in India as PE of an assessee exists in terms of article 5(2)(A) (B) (C) beside 5(2)(J) of DATA with USA? - Whether interest income earned in India can be treated as Business Income for taxation and can be not taxed as per DATA with USA? - review petition - Held that:- It is not in dispute that the Assessing Officer, in this case, proceeded on the basis of Article 5(2)(j). In other words, Article 5(2) (a), (b) & (c) was not in issue. Before the first appellate authority, before whom the assessee carried the matter in appeal, the finding was confirmed with reference to Article 5(2)(j), for the Assessment Year 2002-2003; whereas, in respect of other two years, which are subject matter of other two appeals, the appeals of the assessee were allowed with reference to Article 5(2)(j) and this gave rise to appeals by the Revenue and by the assessee before the Tribunal. Before the Tribunal, we notice that the issue was sought to be raised by the Revenue and the following appears to be the reasoning of the Tribunal in declining to consider the question of Permanent Establishment with reference to Article 5(2) (a), (b) & (c) The Respondent, in fact, would submit that finding of this nature does not even give rise to a substantial question of law. That is to say, according to him, the argument was raised, for the first time, before the Tribunal and there are no facts on record to back-up the plea raised under Article 5(2) (a), (b) & (c). We notice that, in fact, the Revenue did not move any application for admission of additional evidence, as is noted. As we have already noted, a review can be successfully premised in an appeal under Section 260A of the Income Tax Act only on the review petitioner establishing that there is an error apparent on the face of the record. We are unable to perceive any error apparent on the face of the record in the judgment sought to be reviewed. - Decided against revenue.
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