TMI Blog2014 (11) TMI 1173X X X X Extracts X X X X X X X X Extracts X X X X ..... gree with Mr. Irani that this Appeal does not raise any substantial question of law. However, we do not find any basis for the submission made by Mr. Singh that the Tribunal should have examined the matter in the light of applicability of Article 5(1)(2) of the DTAA. The departmental representative has given up that because there was no finding rendered by the Assessing Officer. The Tribunal as rightly held was not obliged to go into the same. Even on this ground the Tribunal's order cannot be faulted. - IT Appeal No. 1648 of 2012 - - - Dated:- 15-11-2014 - S.C. Dharmadhikari And A.A. Sayed, JJ. Tejveer Singh for the Appellant. F.V. Irani and Sameer Chitnis for the Respondent. JUDGMENT 1. This Appeal challenges th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessee before the Dispute Resolution Panel (DRP). After receiving directions from this DRP, the Assessing Officer passed his order, which was challenged before the Tribunal by the Assessee and leading to the impugned order. 4. Mr. Singh submits that the Assessing Officer was right in the conclusion that he has reached, and in that regard para 4.10 of the Assessing Officer's order at running page 27 has been brought to our notice by Mr. Singh. He submits that the factual position as brought out in this order would indicate that the case falls under Article 5(1) of the Double Taxation Avoidance Agreement (DTAA). All the ingredients or components of this Article are satisfied. If this was the position and the Assessing Officer ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consider something which is expressly given up. Therefore, the factual findings on Article 5(5), Article 5(6) of the DTAA and as rendered in the present case do not raise any substantial question of law. Mr. Irani therefore submits that the Appeal may be dismissed. 7. In the present case, the Revenue proceeded on the footing that the presence of the Assessee in India is through an agent. How that agent works and functions and whether the business of the Assessee being carried out through an Indian agent would establish its permanent presence in India is a matter which fell for determination and consideration of the Tribunal. The Tribunal has clarified that it may have referred to the DTAA Articles or parts thereof, but the decision is co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g State an authority to conclude contracts on behalf of the enterprise, unless, his activities are limited to the purchase of goods or merchandise for the enterprise; or (b) he has not such authority, but habitually maintains in the first-mentioned Contracting State a stock of goods or merchandise from which he regularly delivers goods or merchandise on behalf of the enterprise. 6. An enterprise of one of the Contracting States shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other Contracting State through a broker, general commission agent or any other agent of an independent status, provided that such persons are acting in the ordinary course of their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en, the business of an enterprise is wholly or partly carried out within the meaning of Article 5(5) and the said enterprise has a permanent establishment in India. Insofar as Article 5(5) and para 6 is concerned, there is a deeming fiction, and by virtue of that, the enterprise of one of the Contracting States is deemed not to have permanent establishment in other Contracting State merely because it carries on business in that other Contracting State through broker, general commission agent or any other agent of an independent status, provided that such persons are acting in ordinary course of their business. Then comes the provision, whether activities of an agent who may be an agent of independent status but devoted wholly or almost whol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d circumstances peculiar to the Assessee's case and for the particular assessment year, then, we agree with Mr. Irani that this Appeal does not raise any substantial question of law. However, we do not find any basis for the submission made by Mr. Singh that the Tribunal should have examined the matter in the light of applicability of Article 5(1)(2) of the DTAA. The departmental representative has given up that because there was no finding rendered by the Assessing Officer. The Tribunal as rightly held was not obliged to go into the same. Even on this ground the Tribunal's order cannot be faulted. 11. As a result of the above discussion, this Appeal fails. It is accordingly dismissed. No order as to costs. - - TaxTMI - TMITa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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