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2015 (11) TMI 806 - UTTARAKHAND HIGH COURT

2015 (11) TMI 806 - UTTARAKHAND HIGH COURT - TMI - Taxability of income in India - whether income of an assessee arising from contract, in India, be treated as taxable in India as PE of an assessee exists in terms of article 5(2)(A) (B) (C) beside 5(2)(J) of DATA with USA? - Whether interest income earned in India can be treated as Business Income for taxation and can be not taxed as per DATA with USA? - review petition - Held that:- It is not in dispute that the Assessing Officer, in this case, .....

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e and by the assessee before the Tribunal. Before the Tribunal, we notice that the issue was sought to be raised by the Revenue and the following appears to be the reasoning of the Tribunal in declining to consider the question of Permanent Establishment with reference to Article 5(2) (a), (b) & (c)

The Respondent, in fact, would submit that finding of this nature does not even give rise to a substantial question of law. That is to say, according to him, the argument was raised, for t .....

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le to perceive any error apparent on the face of the record in the judgment sought to be reviewed. - Decided against revenue. - Income Tax Appeal No. 6, 7, 8 of 2011, Review Application No. 101,103, 105 of 2015 - Dated:- 14-9-2015 - K.M. Joseph and V.K. Bist, JJ. For The Appellant : Mr. H.M. Bhatia, Advocate For The Respondent : Mr. Tapas Ram Misra and Mr. S.K. Posti, Advocates These Review Petitions being connected, we are disposing of the same by this common order. 2. The Revenue is the appell .....

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per DATA with USA? 3. It would appear that, against the judgment sought to be reviewed, SLPs were carried before the Hon ble Apex Court; but the same came to be withdrawn with liberty to file review petitions and it is, thereafter, that the present Review Petitions have been filed. 4. We had condoned the delay in filing the Applications for Review. We have heard the learned counsel for the appellant / review petitioner and the learned counsel for the respondent / assessee. 5. According to Mr. H. .....

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ng that, unless the rig is actually used for a period of 120 days, it would not be sufficient to attract Article 5(2)(j) of the Agreement. It was not found sufficient that the rig was entered for maintenance and it is ready for use. 7. We have already held that, in an appeal under Section 260A of the Income Tax Act, a review can be filed on an error apparent on the face of record. We see no error apparent as such on the face of record so as to warrant interference in review. 8. The learned couns .....

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not formulated by it, if it is satisfied that the case involves such question. 9. He would, therefore, submit that the Court has not answered the substantial question of law, which was formulated, insofar as it has not given its finding in regard to the availability of a Permanent Establishment in India on the basis of the provisions contained in Clauses (a) (b) & (c) of Article 5(2) of the Agreement. 10. Article 5(2) provides that the term permanent establishment includes especially (a) a p .....

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ars. 12. It is not in dispute that the Assessing Officer, in this case, proceeded on the basis of Article 5(2)(j). In other words, Article 5(2) (a), (b) & (c) was not in issue. Before the first appellate authority, before whom the assessee carried the matter in appeal, the finding was confirmed with reference to Article 5(2)(j), for the Assessment Year 2002-2003; whereas, in respect of other two years, which are subject matter of other two appeals, the appeals of the assessee were allowed wi .....

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he ld. DR is based solely on the Mumbai address of the assessee mentioned in agreement with Petrom SA. It has been mentioned earlier that the assessee has been described as a contractor , a body corporate established under the laws of USA, having its office at 1101, Phil Tower Building, City of Tulsa, Oklahoma, USA, and also having its India office at 501, Balaram, Bandra-Kurla Complex, Bandra (East), Mumbai-400051. It is submitted that the agreement had been concluded from this office and all b .....

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idence to show as to whether it was only an address given in the agreement for correspondence with Saipem SA or an office from which business activities were carried on. In this connection, our attention has been drawn towards paragraph numbers 11, 12, 36 and 37 of the OECD commentary. According to paragraph no. 11, activities to prepare the fixed place for conducting business is to be excluded. According to paragraph 12, various illustrations given in paragraph 5(2) have to be seen in the backg .....

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