9911796707
TMI Blog2017 (10) TMI 1254X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal read as under:- "Based on the facts and circumstances of the case, Swiss Reinsurance Company Ltd (hereinafter referred to as 'SRCL' or the 'the Appellant') craves leave to prefer an appeal against the order passed by the Deputy Commissioner of Income-tax (International Taxation) Range - 4(2)(2), Mumbai (hereinafter referred to as the 'learned AO') under section 143(3) read with section 144C(13) of the Income-tax Act, 1961 (Act) and the Corrigendum thereto, in pursuance of the directions issued by the Hon'ble Dispute Resolution Panel - 2, Mumbai (hereinafter referred to as the 'Hon'ble DRP') on the following grounds, each of which are without prejudice to and independent of the others: 1. Gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... render services to the Appellant, since SRSIPL has been remunerated by the Appellant at a cost plus mark-up and such costs include the cost of the employees of SRSIPL. The learned AO has further erred in holding that SRSIPL, being a captive service provider, carries out the primary and core business of the Appellant in India. The learned AO has, therefore, also erred in holding that SRSIPL constitutes a Service PE of the Appellant in India. 2.3 The learned AO has, on the facts and in the circumstances of the case and in law, and based on the directions of the Hon'ble DRP, erred in holding that the services provided by SRSIPL to the Appellant are technical and core reinsurance services like risk assessment and business facilitation t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s length price without giving any detailed reasons thereof. 3. Ground 3 The learned AO has, on the facts and circumstances of the case and in law, and based on the directions of the Hon'ble DRP, erred in not following the decision of the Hon'ble Income-tax Appellate Tribunal (ITAT), Mumbai in the Appellant's own case, on the same facts, for AY 2010-11, wherein it was held that the Appellant neither has a business connection in India in light of Explanation 2 to section 9(1) of the Act nor does it have a PE in India under the provisions of IS tax treaty; therefore, no income earned by the Appellant from cedents would be taxable in India. Ground 4 The learned AO has, on the facts and circumstances of the case and in la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vary, omit, substitute or amend any or all of the above grounds of appeal, at any time before or at, the time of the appeal, so as to enable the Hon'ble Income-tax Appellate Tribunal to decide this appeal according to law." 3. At the outset in this case the learned Counsel of the assessee submitted that the issue in this case is squarely covered in favour of the assessee by the decision of ITAT Mumbai Benches in assessee's own case. He submitted that this has been duly acknowledged by the Dispute Resolution Panel in its order as well as the Assessing Officer in his order. 4. Per contra, the learned Departmental Representative did not dispute the proposition that the issue is covered in favour of the assessee by the decision of the IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ai ITAT in paragraphs 5.2 to 5.06 of its order held that the assessee does not have service PE in India and respectfully following the said order the DRP has held that the SRSIPL is not an agent of the assessee in India and it neither concludes any contracts on behalf of the assessee nor solicit any orders for the assessee. Further, the services provided by SRSIPL to the assessee are merely preparatory and auxiliary in nature. Further, the Hon'ble ITAT has also relied on Article 5(4) of the DTAA which specifically excludes the reinsurance business from constituting a PE in India. Accordingly, SRSIPL does not constitute a PE of the assessee in India under Article 5(5) of the DTAA and no question of attributing any profits to the PE arises." ..... X X X X Extracts X X X X X X X X Extracts X X X X
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