TMI Blog2011 (10) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... d Vashisth for the Appellant. S.K. Post for the Respondent. ORDER 1. Heard Shri Arvind Vashistha, the learned counsel for the appellants and Shri S.K. Posti, the learned counsel for the respondent-assessee. 2. The present appeal has been filed by the Revenue u/S 260-A of the Income Tax Act, 1961 for the assessment year 1994-95. The facts, in brief, is that the assessee is a partnership firm consisting of Boskalis International B.V. and Hollansche Aanneming Maatschappij B.V. (BKI/HAM) incorporated under the laws of Netherlands on 24th November, 1993 with a limited liability. During the assessment year 1994-95, the assessee entered into a sub-contract for dredging and back filling works with Hyundai Heavy Industries in respect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessment year 1995-96, in which it was concluded that the assessee had a permanent establishment in India and hence was taxable in India. The assessment order for the assessment year 1995-96 placed reliance on Article 5 (2) of the treaty. The Assessing Officer, on the basis of the assessment order for the assessment year 1995-96, passed the assessment order for the assessment year 1994-95 holding that the assessee had a permanent establishment in India. 5. The assessee, being aggrieved by the assessment order under Section 148 of the Act, filed an appeal before the Commissioner of Income Tax (Appeals). The learned Commissioner by an order dated 4th February, 2002 allowed the appeal and held that no permanent establishment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of a permanent establishment, as per the provision of 5 (1) of the treaty, was completely absent in the Bombay Office of the assessee and that the facts of the case for the assessment year 1994-95 was the same as that of assessment year 1995-96 and since the contract spilled over two assessment years, the finding of the Tribunal for the assessment year 1995-96 was equally applicable for the assessment year 1994-95. 7. The revenue, being aggrieved by the aforesaid order, filed an appeal before the Tribunal which was dismissed by an order dated 23rd June, 2006. The revenue, being aggrieved by the said order, filed the present appeal u/s 260 A of the Act which was admitted on the following substantial question of law:- "1. Whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness through which the business of the enterprise is wholly or partly carried on. (2) The term "permanent establishment" includes especially : (a) a place of management; (b) a branch ; (c) an office; (d) a factory; (e) a workshop; (f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources; (g) a warehouse in relation to a persons providing storage facilities for others: (h) a premises used as a sales outlet; (i) an installation or structure used for exploration of natural resources provided that the activities continue for more than 183 days. (3) A building site or construction, installation or assembly project constitutes a permanent establishment only where such site or p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s-conceived. The Tribunal in the assessment order 1995-96 as well as the appellate authority in the assessment order 1994-95 have categorically given a finding of fact that the entire duration of the contract was from 27th December, 1993 till 26th June, 1994, i.e., less than six months. Article 5 (3) of the treaty provided that in order to constitute a permanent establishment such site or project should continue for a period of more than six months. Such site or project, in our opinion, is provided under Article 5 (2) of the treaty and, therefore, the site or project provided under Article 5 (2) should continue for a period of more than six months in order to constitute a permanent establishment. Since a categorical finding of fact has been ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
