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2019 (12) TMI 380 - HC - Income TaxPE in India - only supplying aero-engines and spare parts to the Indian customers on principal to principal basis - Whether PE of assessee was in fact liaison office of RRIL in India, which is separately assessed to tax in India and its profit and taxability now has attained finality in the form of agreement under MAP. ? - HELD THAT:- As seen that the finding returned by the ITAT-that RRIL constituted the PE of the appellant is primarily a finding of fact based on the appreciation of evidence. No change in the factual matrix is pointed out by the appellant, and the finding returned does not raise a substantial question of law. Submission of Mr. Billimoria is that the amendment incorporated in the second explanation in section 9(1) of the Income Tax Act with effect from 1st April, 2019 would not have retrospective application. This submission has no merit. This is for the reason that while determining the issue whether RRIL constituted the PE of the appellant-assessee, the authorities have not relied upon the said explanation at all, and the determination of the said issue was undertaken dehors the said explanation, upon appreciation of the evidence unearthed during the survey. The explanation may, or may not, be prospective. In any event, the same would certainly not have the effect of nullifying the determination made on the issue of PE on the basis of the evidence collected and the pre existing law as prevalent prior to the amendment of Section 9(1) with effect from 1st April, 2019. That, clearly, is not the purport of the substituted Clause (a) of Explanation-2 to Section 9(1) of the Act, with effect from 1st April, 2019. Another argument advanced by Mr. Billimoria is that the income of the assessee, on the basis that RRIL constituted its PE, has already been subjected to tax in the hands of PE i.e. RRIL, and the revenue is seeking to tax the same again. This submission has no merit. Firstly, this aspect does not raise a substantial question of law, since it is clearly a factual issue. Secondly, the order of the CIT(A) dated 15th February, 2009 was available when this Court rendered its decision on 30th August, 2011 in the case of the assessee, as taken note of hereinabove. No such plea was raised then. It is not open to the appellant to raise it now.
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