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2022 (6) TMI 959 - HC - Income TaxIncome accrued in India - PE in India - as per revenue as detected at the time of survey u/s. 133A wherein the Assessee has carried out all the business activities from the Liaison office - Whether ITAT is correct in holding that the Assessee's case does not constitute the "PE" as per Article 5(2)(c) of Indo-Mauritius DTAA? - HELD THAT:- The argument advanced by Appellant based on Article 5(2)(c) of the Treaty overlooks Clause (3) of Article 5, wherein it is stated that notwithstanding Clause (2), the term "permanent establishment" will not include certain categories. Article 5(3)(e) excludes certain categories. We have gone through the order of the Tribunal. Tribunal has elaborately discussed the evidence produced through documents impounded during the survey. The Tribunal noted the documents exchanged by the persons co-ordinating in the activities carried out at the site and the list of messages, including fax and radio messages. Tribunal referred to the employees at this office and examined the roles performed by each of the employees. The Tribunal found that the role of employee Mr.Tarkar was only logistic and coordination, whereas Mr.Rodrigues looked after arranging meetings. Two other employees were only looking after communications. Tribunal, having considered this material, recorded a finding that none of the documents showed any business done from the office. The documents such as the departmental paper-book and daily progress report, which were examined, showed that the work provided backend operations. It was not established by the Appellant- Revenue that any substantial business has been done from the office. After considering these documents, Tribunal found that the concerned place of business was only for the supply of information having preparatory or auxiliary character. Accordingly, the Tribunal concluded that the same would fall under Article (5)(3)(e)(ii). This finding of fact, recorded by the Tribunal after due consideration of the material on record, cannot be considered as perverse. The view taken by the Tribunal is a possible view, and that being the position, the question of law (a) sought to be presented as a substantial question of law is a factual question, and the Commissioner (Appeals) and the Tribunal having recorded concurrent findings on the factual issue, we hold that it does not arise for consideration.
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