9911796707
TMI Blog2012 (8) TMI 729X X X X Extracts X X X X X X X X Extracts X X X X ..... as the sentence "PE or no PE, since entire repairs and overhauling is carried outside India, the profits arising to assessee from such repairs can be taxed in India" ought to have been "PE or no PE, since entire repairs and overhauling is carried outside India, the profits arising to assessee from such repairs cannot be taxed in India" (emphasis supplied to highlight the error). ii. There is an inherent contradiction in the findings of the Tribunal and the directions of the Tribunal inasmuch as while Tribunal has given a categorical finding to the effect that "consideration for use of replacement components is distinct and separate and the same can perhaps be neatly segregated from overall receipts", the Tribunal has also directed the CIT( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion which confines the scope of taxability of profits attributable to the PE. While the observations made by the Tribunal donot affect the outcome of the appeal, inasmuch as it finally concluded that there is no PE and as such profit attribution exercise is uncalled for on the facts of this case, the observations made by the Tribunal seem to be incorrect......." 3. Learned counsel vehemently opposed the initiative taken by the bench suo motu for rectification of mistake believed to be apparent from record, and submitted that when none of the parties have raised this aspect of the matter, it cannot be open for the Tribunal to raise this aspect of the matter on its own either. On merits, he also submitted the Tribunal has given a categorica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of attraction rule and bring to tax all the profits of a foreign enterprise whether or not they relate to the PE" is clearly a mistake apparent from record which was not even relevant to determination of issue in appeal before us as there was a categorical finding by us that, on the facts of the case, the assessee did not have a PE in India. No two views are possible on the issue that the import of words 'directly or indirectly' in Article 7(1) was not taken into account, that this finding was not necessary to decide the appeal, and that a finding on this issue was thus clearly a mistake apparent on record. Therefore, even as we agree with the learned counsel that this mistake has no bearing on outcome of the appeal, we deem it appropria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same can perhaps be neatly segregated from the overall receipts, and, therefore, "non-taxability under Article 7 will still mean that application of Article 13 is to be considered and adjudicated upon". It is for this purpose that the matter has been remitted to the file of the CIT(A) for fresh adjudication and no limitations have been placed in the scope of adjudication by the CIT(A) while dealing with the remitted matter. 9. Learned counsel contents that our observations to the effect that the consideration for use of replacement components is distinct and separate is in contradiction with our direction to the CIT(A] to consider the matter afresh for taxability under Article 13, and in not limiting such an examination for taxability ..... X X X X Extracts X X X X X X X X Extracts X X X X
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