TMI Blog2019 (3) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... DELHI HIGH COURT]. - Decided in favour of assessee. - ITA No.6403/Del./2018, Stay No.82/Del/2019 (in ITA No.695/Del./2019), ITA No.695/Del./2019, Stay No.83/Del/2019 (in ITA No.697/Del./2019), ITA No.697/Del./2019, Stay No.84/Del/2019 (in ITA No.696/Del./2019), ITA No.696/Del./2019 - - - Dated:- 25-2-2019 - Shri Kuldip Singh, Judicial Member And Shri Anadee Nath Misshra, Accountant Member For the ASSESSEE : Shri Sachit Jolly, Advocate, Shri Aarush Bhatia, Advocate For the REVENUE : Shri G.K. Dhall, CIT DR ORDER PER BENCH : Since common questions of facts and law have been raised in the aforesaid appeals, the same are being disposed of by way of composite order to avoid repetition of discussion. 2. The appellant, M/s. GE Energy Parts Inc. (hereinafter referred to as the assessee ) by filing the present appeal, sought to set aside the impugned order dated 31.07.2018 passed by Ld. CIT (Appeals)-42, New Delhi qua the Assessment Year 2001-02 on the grounds inter alia that :- 1. That on the facts and in circumstances of the case and in law, the Commissioner of Income-tax (Appeals) [ CIT(A) ] erred in confirming the action of the Assessing Officer ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia that :- 1. That on the facts and circumstances of the case and in law, the Commissioner of Income-tax (Appeals) [ CIT(A) ] erred in confirming the action of the Assessing Officer ( AO ) in levying penalty of ₹ 20,85,540/- under Section 271(1)(c) of the Income Tax Act, 1961 ( the Act ) 2. That on the facts and circumstances of the case and in law, the Ld. AO erred in passing the penalty order under Section 271(1)(c) of the Act which are wholly without jurisdiction and clearly barred by limitation inasmuch as the same have been passed beyond the period of limitation prescribed under Section 275(1)(a) of the Act. 3. That on the facts and circumstances of the case and in law, the CIT(A) erred in upholding the initiation of penalty by way of issue of penalty notice under Section 274 of the Act without specifying whether the penalty is initiated for concealment of income or for furnishing of inaccurate particulars of income. 4. That on the facts and circumstances of the case and In law, the CIT(A) erred In alleging that the Appellant had concealed particulars of income, without appreciating that the Appellant made complete disclosure in the notes accom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed beyond the period of limitation prescribed under Section 275(1)(a) of the Act. 3. That on the facts and circumstances of the case and in law, the CIT(A) erred in upholding the initiation of penalty by way of issue of penalty notice under Section 274 of the Act without specifying whether the penalty is initiated for concealment of income or for furnishing of inaccurate particulars of income. 4. That on the facts and circumstances of the case and In law, the CIT(A) erred In alleging that the Appellant had concealed particulars of income, without appreciating that the Appellant made complete disclosure in the notes accompanying the return of income. 5. That on the facts and circumstances of the case and in law, the CIT(A) erred in upholding the levy of penalty, without appreciating that on identical facts, penalty had been deleted by the predecessor of the CIT(A) in the case of GE Caledonian Ltd. and GE Aviation Service Operation LLP for the A Y 2011-12. 6. That on the facts and circumstances of the case and in law, the CIT(A) erred in upholding the levy of penalty, without appreciating that the Hon'ble High Court having admitted the appeal of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of the case. 8. Undisputedly, assessment orders framed by the AO have been upheld by the ld. CIT (A) as well as by the Tribunal, who have held that GE Overseas entities have PEs in various forms and these are fixed place PE, Office PE, construction PE and agency PE and in case of oil and gas business, involves in installation and commissioning would also constitute construction PE and since the assessee has earned global profit of 10% on the sales made to the customer in India, the income chargeable to tax as attributable to the PE was computed at 3.5% of the sales made. It is also not in dispute that the findings returned by the Tribunal have been challenged before the Hon ble Delhi High Court in a batch of petitions bearing No. ITA 660/2017 Ors. and vide order dated 15.01.2018 , questions of law have been framed which are extracted for ready perusal as under :- (1) Did ITAT fell into error in its findings with respect to existence of a fixed place Permanent Establishment (PE) of the assessee in India; (2) Did ITAT fell into error in concluding that assessee/appellant's separately independent agent PE, was located in India; and, (3) Whether on the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X
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