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TMI Blog2015 (5) TMI 829X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee for Assessment Years (AYs) 1999-2000 to 2004-05. Its grievance is that the ITAT erroneously examined the merits of the contentions and drew inferences in the assessee's favour which were entirely unwarranted. 2. This Court does not propose to discuss the facts in detail in view of the final order made. The assessee (Swedish company) is a subsidiary of LME. It entered into a contract with Indian telecom service providers during 1995-97 for supply of telecommunication equipments which comprise hardware and software components. It claimed that it was not liable to tax under the provisions of Income Tax Act, 1961 (hereinafter referred to as "the Act") and also relied upon a Double Taxation Avoidance Agreement (DTAA) between India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... much after the Order of the Special Bench of the Tribunal in assessee's own case for the A.Y. 1997-98. The Ld. CIT(A), without confronting the assessee or the Assessing Officer tried to make out a case that the facts are different in these years . He summarized the new facts/evidences at para 3.3 of his order at pages 6 to 11. The basis on which this summary is arrived is not stated. A perusal of this summary demonstrates that the Ld.CIT(A) has not indicated as to what is the documentary evidences are relied upon by him for coming to a conclusion, that the facts of the current years are different from that of the earlier years. General observations are made and vague conclusions are drawn. The documents were not put to the assessee, no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erial. Learned counsel pointed to the explanation of CIT (Appeals)'s powers under Section 251 of the Act that empowered it to not only set aside the AO's order but also pass such orders as may be appropriate after giving reasonable opportunity to the assessee in the circumstances as warranted. The ITAT ought to have remitted the matter to CIT (Appeals). 6. Learned senior counsel for the assessee, Mr. Percy Pardiwala, resisted the submissions of the Revenue and contended that the impugned order should not be disturbed. He argued that the findings with respect to the title of the goods passing in the high seas and, therefore, being outside the jurisdiction of India cannot be faulted with. He also submitted that the question in this appeal wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, that decision has to be seen in the light of the facts available to Court at that time. The question as to what was the material collected during the survey and what are the inferences drawn and whether the question of PE or any other issue would arise, is something this Court ought not to surmise. 8. In these circumstances, this Court deems it most appropriate to set aside the order of the ITAT and CIT (Appeals) and remit the matter to the CIT (Appeals) who shall give reasonable opportunity to the assessee, in the light of the materials collected during the survey conducted on 22.11.2007 for the assessment years in question i.e. 1999-2000 to 2004-05. It is open to the assessee to take all contentions including the submissions to be m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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