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2018 (9) TMI 231 - BOMBAY HIGH COURTPermanent Establishment in India - AO non discharging the burden of proving that the Appellant had a PE in India - Held that:- Permanent establishment for the purpose of convention meant a fixed business through which the business of the enterprise was wholly or partly carried on. Assessee was not having fixed place of business in India. Hence, the First Appellate Authority rightly held that the provisions of Article 5 (1) were inapplicable. Tribunal still deems it fit and proper to remand the case. If there was indeed no material on record, then, the above conclusion was impossible to be reached. There ought to be some predictability and when given facts and circumstances give rise to certain legal principles which parties assert are applicable, then, as a last fact finding authority, the Tribunal could have summoned all records and thereafter should have arrived at a categorical conclusion whether the First Appellate Authority was right or the Assessing Officer. Admittedly not been done, we are of the firm opinion that the Tribunal failed to act as a last fact finding authority. It failed to discharge its duty and function expected of it by the law. Answering question nos.1 and 2 as reproduced above in favour of the Assessee and against the Revenue.
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