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2018 (7) TMI 1808 - AT - Income TaxInstallation PE in India - Gulf of Kuchch (GOK) Project - Held that:- Consideration received in respect of offshore supply of equipments and services and profits attribution @ 10% on the same should not be added in the hands of the assessee construing it as ‘Installation PE’ in India. ONGC AMC Project - Held that:- We find that these grounds had been adjudicated by this tribunal in assessee’s own case for the Asst Year 2011-12 [2018 (4) TMI 504 - ITAT KOLKATA] wherein it was held that the maintenance actvities carried out by the assessee does not constitute any PE in India and accordingly, in the absence of any PE, no attribution of profits could be done in India. With regard to the aspect of AMC services being considered as FTS, we hold that these services do not make available any technical know how or knowledge to the personnel of the customer as per Article 12(5) of the India- Netherlands DTAA AIRPORTS AUTHORITY OF INDIA (Mumbai, Chennai and Kolkata Project) - Held that:- Respectfully following the aforesaid decision of this tribunal in assessee’s own case for the Asst Year 2011-12, we uphold the action of the ld AO in treating the assessee as an Installation PE in respect of AAI Project but however restrict the profit attribution thereon to 10% of gross receipts. ONGC- ADDITIONAL (SAGAR LAXMI) PROJECT - Held that:- We are inclined to accept the arguments of the ld DR that the number of days taken by the assessee for executing the installation work is not on records and even before this tribunal, no details whatsoever in that regard were filed by the assessee. Hence we dismiss the plea of the ld AR that the assessee cannot be treated as an Installation PE. We hold that the assessee is to be treated as an ‘Installation PE’ in as much as there is no evidence produced by the assessee to prove the time duration taken for the project carried out by the assessee for executing the installation work. However, in line with various judicial decisions on the issue, we hold that only the onshore provision of services and onshore supply of equipments should be considered at 10% on gross basis as profits attributable to such Installation PE in India Charging of interest u/s 234B - Held that:- We find that the income of the foreign enterprise is to be governed by the provisions of section 195 of the Act wherein any payment made to foreign enterprise would be subjected to full deduction of tax at source. The ld DRP by placing reliance on the decision of Hon’ble Delhi High Court in the case of GE Packaged Power [2015 (1) TMI 1168 - DELHI HIGH COURT] and by observing that the proviso to section 209(1) of the Act is applicable only from Asst Year 2013-14 onwards, had directed the ld AO not to charge interest u/s 234B of the Act. Similarly the ld DRP had also directed the ld AO not to charge surcharge and cess in view of specific provisions contained in India-Netherlands DTAA. We find that the directions of Hon’ble DRP are binding on the ld AO as per provisions of section 144C(10) Grant of short credit of TDS - Held that:- We find that the assessee had claimed credit of taxes deducted at source of ₹ 1,52,12,219/- in its income tax return for the Asst Year 2012-13. The ld AO in the final assessment order granted credit for the same only to the tune of ₹ 1,51,39,418/- thereby leading to short credit of TDS by ₹ 72,801/-. The assessee stated that it had produced the TDS certificate for the same before the ld AO which has been ignored. Hence we direct the ld AO to verify the veracity of the said TDS certificate and grant credit for TDS as per law
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