TMI Blog2014 (3) TMI 1109X X X X Extracts X X X X X X X X Extracts X X X X ..... wing the same reasoning, we uphold the order of CIT(A) on the issue. - Decided against revenue - ITA No.513/PN/2013 - - - Dated:- 20-3-2014 - SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI G.S. PANNU, ACCOUNTANT MEMBER For The Appellant : Shri A.K. Modi For The Respondent : Prashant Maheshwari and Bhavin Shah ORDER PER SHAILENDRA KUMAR YADAV, J.M: This appeal has been filed by the revenue against the order of Commissioner of Income Tax (Appeal)-IT/TP, [short CIT(A)] Pune, dated 20.12.2012 for A.Y. 2007-08 on the following grounds. 1. Whether on the facts and in the circumstances of the case, the Ld. CIT(A)-IT/TP, Pune erred in holding that assessee does not have a Permanent Establishment (PE) in India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r appeal, the assessee has declared receipt of income ₹ 12,69,52,154/-. It also filed revised return showing income from Kalyani unit totaling to ₹ 2,28,79,151/- which was not shown in the return of income. Thus, the total income of ₹ 14,92,60,305/- was declared as under: Sr No Particulars Amount (Rs) 1 Receipt of Royalty 52,66,930 2 Receipt from information technology services 3,56,70,257 3 Receipt from Product marketing services 3,89,16,285 4 Interest received on ECB Loans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ITAT, Pune in assessee s own case for A.Y. 2002-03 and 2006-07 has held that the assessee company does not have a fixed PE in India. However, during a particular year, whether PE existed or not is a question of fact. During the year under appeal, the Assessing Officer has neither identified such fixed place nor brought material on record to suggest that the assessee s business was carried out in India through fixed location and income thereby to such PE from such business. In the absence of new facts during the year, the decision of ITAT will hold good as held in A.Y. 2002-03 and 2006-07. Accordingly, the CIT(A) has rightly held that the assessee company does not has fixed PE in India. A similar view has been taken by ITAT in assessee s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee is allowed. 2.2 Nothing contrary was brought to our knowledge on behalf of revenue. Facts being similar, so following the same reasoning, we are not inclined to concur with the finding of DRP. We are of the view that the assessee did not have any PE in India, much less a PE to which subject royalties and fees for technical services could be attributed. In terms of India-German DTAA, India does not have right to tax these receipts as business profit under Article 7. In the light of above finding that no revenue earned by the assessee could be said to be attributable to PE, even if one was to come to the conclusion that a PE existed, no taxability could arise under Article 7. The assessee has offered the royalties and fees fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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