TMI Blog2019 (2) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... o rewriting DTAA. When there is no option in a given case, the general Article 5(1) would get attracted which means that when there is an option [like in the present case], specific article will prevail. The establishment of PE in India is in respect of each assessment year only. Moreover, there is no bar in carrying on the activities year after year. The determination of existence of PE in India is to be made by reference to provision in DTAA. In our considered opinion, the ld. DR was trying to set up a new case which is not permissible by the decision of the Special Bench of the Tribunal in the case of Mahindra & Mahindra Vs. DCIT [2009 (4) TMI 207 - ITAT BOMBAY-H]. DR also contended that the matter should be sent back to the Assessing Officer for redetermination of the period of stay in India. Multiple opportunities are not permissible to any authority to experiment in setting up case as held in the case of Rajesh Babubhai Damania [2000 (6) TMI 5 - GUJARAT HIGH COURT]. Considering the facts of the case in totality, in the light of India UAE DTAA, we are of the considered opinion that there is no PE in India for the year under consideration. First grievance is accordingl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant company is engaged in providing grouting and precast solutions for subsea off-shore construction industry. It provides products and solutions to support and protect subsea pipelines, cables and structures. 6. The technicalities of grouting can be understood from the following: Grout is a neat cement and water mixture which is used in the Offshore Oil industry because the logistics of using multiple materials is not practical. Therefore, to inject shapes and forms like ULO providing Fabric Formwork, a neat cement and water mix (grout) is mixed and pumped under water into the shapes or forms to make the hardening structure which supports, protects and stabilizes subsea pipelines, cables and umbilicals. As the seabed is not uniform and corrosion occurs if two steel structures are touching each other under water, this is why ULO provides its Fabric Formwork to support pipelines, cables or umbilical, subsea to either support so that they do to default due to bending where spans occurs and or not touching at crossing situations where an electrolytic action could occur causing corrosion. The Offshore Oil industry has adopted this policy for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugro Engineers BV in ITA No. 2691/DEL/2017. The facts and findings of the Tribunal read as under: FEBV is a tax resident of Netherlands. During the relevant year, FEBV executed following contracts in India: Contract with Oil and natural Gas Limited ( ONGC ): The scope of work under the above contract involved soil investigation for two jack-up exploration drilling locations in the Godavari Delta region. The investigation included drilling and sampling of two bore holes, on board laboratory testing and specialized analysis through risk assessment techniques. FEBV s total presence in India for this contract was for a period of 13 days during the year. Contract with Cairn Enemy India Ptv Ltd ( Cairn ): The scope of work under this contract involved geophysical and geotechnical investigation in the Gulf of Khambat, off the west coast of India. An integrated site investigation approach was Contract with Ganesh Benzoplast Limited ( GBL ) for execution of work on ONGC's vessel Samudra Sarveshak : The scope of work under the above contract involved provision of geotechnical investigations and geotechnical services on board Samudra Sarveshak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for that period of time. The DRP is of the opinion that the assessee should be allowed benefit of limitation clause only when such activities are occasional but when such activities are carried on from year to year regularly and periodically, then it does raise a presumption that it is being done deliberatively to avoid establishment of PE in India. 13. In our considered opinion, it is the settled principle of interpretation in view of Vienna Convention of 1969, that DTAA needs to be interpreted uberrimae fidei which means with utmost good faith . It means that the Assessing Officer/DRP are rewriting DTAA. The contention of the ld. DR that the assessee deliberately manipulated length of projects to always keep it under 270 days is an ill-placed allegation only. 14. In our understanding of the facts, the observation by the Assessing Officer/DRP that grouting is not a simple masonry work and involves complex aspects does not take it out of the construction activities as mentioned in article 5(2)(h) of the India UAE DTAA because there is no bifurcation of simple and complex masonry/construction work under Article 5(2)(h) and any further classification [as done by the Revenu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is no option in a given case, the general Article 5(1) would get attracted which means that when there is an option [like in the present case], specific article will prevail. 17. There are few other DTAAs, namely, Australia, Thailand, Canada, USA, Denmark etc. where relevant PE clauses are so worded that there is a specific mention for application of aggregation principle on all, or even connected, sites, projects or activities for computation of threshold duration test. Whereas, India-UAE DTAA uses singular expressions a building, site or construction or assembly project and, therefore, in our understanding, aggregation of different projects is not allowed by conscious legislative scheme. 18. Before us, the ld. DR referred to records of several assessment years and on that basis, alleged that in the absence of reliable and authentic details regarding number of days spent in India Article 5(1) will apply instead of Article 5(2)(h). We would like to mention here that the DRP has concluded that 264 days were spent in India during assessment year 2007-08. In our considered opinion, the ld. DR, at this stage, cannot improve the findings of the DRP. 19. 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