TMI Blog2017 (5) TMI 1054X X X X Extracts X X X X X X X X Extracts X X X X ..... nside India activities. Respondent No.1 is now directed to consider the matter afresh, and within a period of four weeks from today, issue a fresh certificate under Section 197(1) of the Act, accepting the alternative plea of the Petitioner, without prejudice to its right to contest the said deduction in accordance with law, that the ONGC would deduct tax @ 4% + surcharge+ education cess on the revenues in respect of only the inside India activities of the Petitioner - W.P.(C) 2117/2017 & CM No. 9268/2017 - - - Dated:- 9-5-2017 - S. MURALIDHAR CHANDER SHEKHAR JJ. Petitioner Through: Mr. Balbir Singh, Senior Advocate with Mr. Prakash Kumar, Ms. Rubal Maini Ms. Rashmi Singh, Advocates Respondents Through: Mr. Ruchir Bhatia, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to earlier contracts entered into between NPCC and ONGC and in respect of which NPCC had obtained a lower withholding of tax order under Section 197 (1) of the Act @ 4% + applicable surcharge and education cess. 4. The revenue earned by NPCC comprises revenues received earned from (a) outside India activities and (b) inside India activities. NPCC submits that under the Treaty, its business profits would be taxable in India only if it has a Permanent Establishment (PE) in India as per Article 5 of the Treaty. It is the consistent stand of NPCC that it has no PE in India. It is pointed out that the activities of fabrication and construction of platforms take place in Abu Dhabi. They are outside India activities that do not contribute to e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duction of TDS to amounts paid by ONGC to NPCC for the inside India activities. Today Mr Bhatia informed the Court that he had no instructions and that the Court may proceed with the matter on merits. 8. It may be noticed at this stage that by its judgment in National Petroleum Construction Co. v. Director of Income Tax (International Taxation), (2016) 383 ITR 648 (Del), for AYs 2007-2008 and 2008-2009, this Court held, in respect of similar contracts between NPCC and ONGC, that the project office of NPCC did not constitute a fixed place PE under Article 5(3)(e) read with Article 5(2)(c) and 5(1) of the Treaty. It was further held that since the site or the installation activity in India was less than the threshold of 9 months, such ..... X X X X Extracts X X X X X X X X Extracts X X X X
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