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2018 (8) TMI 270 - AT - Income TaxInstallation PE in India - Gulf of Kuchch (GOK) Project - Held that:- These grounds had been adjudicated by this tribunal in assessee’s own case for the Asst Years 2012-13 and 2013-14 [2018 (7) TMI 1808 - ITAT KOLKATA] wherein it was held that the assessee herein constituted Installation PE in India. Further it was held that no attribution can be done on receipts from Offshore supply of equipment and Offshore provision of services. Only the profits attributed to the activities carried out in India shall be taxable and accordingly, only the onshore supply of equipment and onshore services rendered by the assessee, would have to be considered for taxing the onshore receipts at 10%. Tax the AMC fee received as business profits attributable to an Installation PE in terms of Article 5(3) of the India-Netherlands DTAA - Held that:- We find that this tribunal had considered the same issue in assessee’s own case for the Asst Years 2010-11 , 2011-12 , 2012-13 and 2013-14 and had held that the AMC services provided post completion of installation actvities at the site of the customer, cannot lead to carrying out installation activities for the purpose of constitution of an Installation PE in India. Further, it was also held that the presence of an Indian Contractor to which the assessee has sub-contracted the whole AMC work on principal – to- principal basis , does not create any virtual presence of the assessee in India. It was held that since no business activities were carried out by the assessee in India, it is unreasonable to conclude that the assessee has any PE 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.
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