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2020 (7) TMI 63 - AT - Income TaxRectification u/s 254 - PE in India or not? - tribunal directing the Assessing Officer to verify assessee's claim regarding stay of employees/ personnel in India for rendering service during the previous year - contention of the assessee that during the relevant previous year, assessee's employees/personnel were in India for rendering services for a period of less than 90 days, to be precise, 42 days - HELD THAT:- Neither the AO nor learned DRP have given any factual finding on the assessee's claim that during the previous year relevant to the assessment year under dispute, employees/personnel of the assessee were in India for only 42 days and not more than 90 days. While deciding assessee's ground raised on the issue of existence of PE, the Tribunal following its decision in assessee's own case for the assessment year 2012-13 has accepted in principle that the expression "any 12 month period" as mentioned in Article-5(2)(k)(i) of the India-U.K. Tax Treaty would mean the previous year or financial year as per section 3. Finding that assessee's claim regarding stay of its employees/personnel in India for rendering services for an aggregate period of 42 days has not been factually verified either by the AO or by DRP, the Tribunal while allowing the ground raised by the assessee has issued a direction to the AO to factually verify assessee's claim regarding stay of its employees/personnel in India for an aggregate period of 42 days during the previous year relevant to the assessment year under dispute. There cannot be any mistake in the aforesaid direction of the Tribunal as assessee's claim, though, was made before the Revenue authorities, however, neither the AO nor DRP has recorded any factual finding regarding the aforesaid claim of the assessee. In the aforesaid factual position, it becomes imperative to factually verify assessee's claim regarding the stay of its employees/personnel in India. In case, assessee's claim regarding stay of its employees/personnel in India is found to be correct, then it has to be held that during the year under consideration, the assessee did not have any PE in India. No mistake, much less, a mistake apparent on the face of record as envisaged under section 254(2) of the Act. What the assessee wants by filing this application is a decision from the Tribunal in a particular manner and to its own liking. This cannot be the intent and purpose of section 254(2) of the Act which is only for rectifying mistake apparent on the face of record. Tribunal after considering all relevant facts has taken a conscious decision of directing the Assessing Officer to verify assessee's claim regarding stay of employees/ personnel in India for rendering service during the previous year relevant to the assessment year under dispute. That being the case, there is no mistake in the decision of the Tribunal. No merit in the present application filed by the assessee.
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