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2018 (11) TMI 200 - AT - Income TaxP.E. in India - fixed place of business in India - India-Mauritius DTAA - assessee as acting as a sub contractor with HHI and valentine Consortium for certain specialized job on ONGC Mumbai Uran terminal water projects - attribution of income - Held that:- The assessee was acting as a sub contractor with HHI and valentine Consortium for certain specialized job on ONGC Mumbai Uran terminal water projects. CIT (A) has held that work of the assessee is of transporting the already mined product to the uban plant for further processing. While deciding the issue of taxability of receipts u/s 44BB of the act, CIT (A) has held that the activities of the assessee are post mining and processes involving already mined products. Further while holding that assessee has a PE under article 5 (2) (f) of the DTAA, the CIT (A) has not at all examined that whether oil well or gas was the fixed place available to the assessee for carrying on its business. Without first giving that finding, the d CIT (A) has incorrectly assumed that assessee has a PE under that article. That oil well should have been proved that it is under the disposal of the assessee in the sense of having some right to use the premises for the purposes of its business and not solely for the purposes of the project undertaken on behalf of the owner of the premises. Here it is apparent that assessee even if has the above place it is for the purposes of the above project undertaken as subs contractor. Even otherwise the CIT (A) has not given any finding that such oil well is at the disposal of the assessee. We rest at that and state that unless that is proved first by revenue, the income cannot be charged under that article. - decided in favour of assessee.
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