TMI Blog2018 (4) TMI 634X X X X Extracts X X X X X X X X Extracts X X X X ..... us at 2.6% as has been held by this Tribunal in assessee’s own case in the group concern. Levy of interest under section 234B - Respectfully following the decision of this Tribunal in case of GE Energy Parts Inc. vs ADIT(supra), we allow this ground raised by the assessee. - ITA No.1318/Del/2015 - - - Dated:- 9-4-2018 - SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SMT. BEENA A. PILLAI, JUDICIAL MEMBER For The Appellant : Sh. Sachit Jolly, Advocate Sh. Sidharth Josh, Advocate For The Respondent : Sh. G. K Dhall, CIT (DR) ORDER PER BEENA A. PILLAI, JUDICIAL MEMBER Present appeal has been filed by assssee against order dated 30/12/14 passed by Ld. ACIT, Circle 1 (3) (1), international taxation, New Delhi unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d technical in nature, unlike off the shelf retail product, the pre-sale and sale of an equipment manufactured by the Appellant involves extensive and continuous discussions and evaluations among multiple engineers and technicians with specializations in various technical aspects and therefore could not have been undertaken by expatriate employees of GE International Inc ( GEII ) located in India and employees of GE India Industrial Private Limited ( GEIIPL ). 1.6 That the AO and the DRP, on the facts and circumstances of the case and in law, failed to appreciate the submissions/contentions raised before it and further erred in making several allegations, observations and assertions based on mere conjectures and surmises, which ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that payment received by the Appellant in relation to offshore supply of spare parts and offshore repair services outside India were taxable in India under both Section 9(1 )(i) of the Income Tax Act, 1961 ( the Act ) and Article 5 r/w Article 7 of the Tax Treaty. 2.2 That the AO and DRP erred in assessing the total income of the Appellant under the provisions of the Act and the Tax Treaty without appreciating that income of the Appellant: (a) had not accrued/arisen in India under Section 5(2) of the Act; (b) could not be deemed to have accrued/arisen in India under Section 9 of the Act; and (c) was not taxable in India under the Tax Treaty. 2.3 That the AO and the DRP erred in holding that the Appellant have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IIPL are of a preliminary and auxiliary nature and there is no evidence/document on record which establishes that the employees of GEIIPL as the alleged agent has exercised any authority to conclude contracts or secured orders for/ on behalf of the Appellant. 3. That the AO and the DRP erred in not appreciating that GEIIPL was only providing market support in the capacity of an independent service provider to the Appellant and GEII expatriate employees were neither working under the control or supervision nor reporting to the Appellant. 4. That the AO and the DRP further erred in not appreciating that no part of the income from supply of equipment and repair services were attributable to the alleged business connection/PE of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red, on the facts and circumstances of the case and in law in not allowing deduction of expenses in computing income assessable in the hands of alleged PE of the Appellant in India 3. Miscellaneous 3.1 That the AO and the DRP erred in levying interest under Section 234A, 234B and 234C of the Act. 3.2 That on the facts and circumstances of the case and in law the AO erred in initiating penalty proceedings under Section 274 read with Section 271 (l)(c) of the Act. The grounds of appeal made herein above are without prejudice to each other. The Appellant craves leave to alter, amend and/or withdraw all or any of the grounds of appeal herein or add any further grounds as may be considered necessary and to submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in assessee s own case in the group concern. 4. In respect of Ground No. 3 regarding levy of interest under section 234B by observing that the issue stands settled in favour of assessee by the decision of Hon ble Delhi High Court in assessee s own case for assessment year 2001-02 to 2006-07. It has been submitted that the facts and circumstances of the case before us are similar. Accordingly respectfully following the decision of this Tribunal in case of GE Energy Parts Inc. vs ADIT(supra), we allow this ground raised by the assessee. 5. In Ground No. 3.2 is released against initiation of penalty proceedings. As this ground is consequential in nature, the same do not require any adjudication at the stage. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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