TMI Blog2010 (12) TMI 1271X X X X Extracts X X X X X X X X Extracts X X X X ..... common order. 3. ITA No. 1796:- The issue raised is that Ld. Commissioner of Income Tax (Appeals) erred in holding that the assessee company was not an agent of the 13 technicians u/s 163 of the IT Act. 3.1 ITA No. 1797:- The issue raised is that Ld. Commissioner of Income Tax (Appeals) has erred in holding that the assessee company as not an agent of A.P. Molar Maersk A/S u/s 163 of the IT Act. 3.2 ITA No. 2598:- The issue raised is that Ld. Commissioner of Income Tax (Appeals) has erred in relying on its own decision holding that M/s Maersk Co. Ltd. cannot be treated as agent of M/s AP Moller Maersk AS. 4. Thus, from the above it is evident that these appeals revolved around common facts. We take up ITA No. 1796 first f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of income. Therefore, he held that M/s Maersk Company Ltd. was an agent of 13 technicians agents employees. Further, Assessing Officer observed to issue notice u/s 148 to all the 13 technicians treating M/s Maersk Company as agent. 5. Upon assessee s appeal Ld. Commissioner of Income Tax (Appeals) referred to the decision of this tribunal in assessee s own case in ITA No. 1347 to 1353 and 1355 to 1365/Del/2008 for A.Y. 200203 and 2003-04 dated 30.10.2009 wherein the tribunal has struck down the assessment on the basis that the Assessing Officer s primary action of treating the assessee as an agent of the employees itself was erroneous and therefore, the assessment made pursuant to the said action has been set aside. Following the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of MCL; that they were working on the PSV under the direct supervision and control of MCL; that MCL was responsible for making provision of crew to ONGC in terms of its contract with ONGC; and that therefore, the Assessing Officer had correctly treated, MCL as the agent of the expatriate personnel. 9. The question before us is as to whether the Ld. Commissioner of Income Tax (Appeals) is right in ratifying the aforesaid action of the Assessing Officer. Now, what is to be seen is as to whether the conditions of sec. 163(1) of the Act are fulfilled in the present case, so as to make MCL liable to be treated as the agent of the expatriate personnel. As per sec. 163(1) of the Act, for the purposes of the Income Tax Act, agent , in relatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permanent establishment in India. The income of the expatriate personnel was assessed in Denmark. That being so, Article 16(3) of the Indo Denmark DTAA was applied. The expatriate personnel were employees of RAPM. They were tax residents of Denmark. It has not been established by the department that their contention that it was MCL who was actually controlling the working of the expatriate personnel while on service in India, stands buttressed or substantiated by any material on record. It has also failed to prove that it was MCL which was responsible for the entire operation of the PSV. It has not been shown that MCL was having rights on the work produced and bearing the relative responsibility and risks of the service of the expatriate p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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