TMI Blog2020 (7) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... ee were in India for only 42 days and not more than 90 days. While deciding assessee's ground raised on the issue of existence of PE, the Tribunal following its decision in assessee's own case for the assessment year 2012-13 has accepted in principle that the expression any 12 month period as mentioned in Article-5(2)(k)(i) of the India-U.K. Tax Treaty would mean the previous year or financial year as per section 3. Finding that assessee's claim regarding stay of its employees/personnel in India for rendering services for an aggregate period of 42 days has not been factually verified either by the AO or by DRP, the Tribunal while allowing the ground raised by the assessee has issued a direction to the AO to factually verify ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no mistake in the decision of the Tribunal. No merit in the present application filed by the assessee. - M.A. NO. 513 (MUM.) OF 2019 - - - Dated:- 14-2-2020 - Saktijit Dey, Judicial Member And Rajesh Kumar, Accountant Member For the Appellant : Soli E. Dastur and Niraj Seth For the Respondent : Michael Jerald ORDER SAKTIJIT DEY, JUDICIAL MEMBER By way of this application, the assessee seeks rectification of the LinkLaters LLP v. Dy. CIT, (International Taxation) [2019] 111 taxmann.com 198 (Mum.) 2. Shri S.E. Dastur, leaned Sr. Counsel for the assessee submitted, while deciding ground no. 2 raised by the assessee relating to existence of Permanent Establishment (PE) in India, the Tribunal following it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LLP v. Dy. CIT [International Taxation) [MA no.238 (Mum.) of 2019, dated 12-3-2018] 3. The learned Departmental Representative strongly opposing the contentions raised on behalf of the assessee submitted, the Tribunal having considered all material facts, since, has taken a conscious decision to restore the issue to the Assessing Officer for factual verification, no mistake can be found in the said decision of the Tribunal. He submitted, in the garb of rectification the assessee actually wants review of the order passed by the Tribunal. Therefore, he submitted, the application filed by the assessee being devoid of merit should be dismissed. 4. We have considered rival submissions and perused the material on record. The issue arising f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve given any factual finding on the assessee's claim that during the previous year relevant to the assessment year under dispute, employees/personnel of the assessee were in India for only 42 days and not more than 90 days. While deciding assessee's ground raised on the issue of existence of PE, the Tribunal following its decision in assessee's own case for the assessment year 2012-13 has accepted in principle that the expression any 12 month period as mentioned in Article-5(2)(k)(i) of the India-U.K. Tax Treaty would mean the previous year or financial year as per section 3 of the Act. Finding that assessee's claim regarding stay of its employees/personnel in India for rendering services for an aggregate period of 42 days ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the facts of the present case, the Tribunal after considering all relevant facts has taken a conscious decision of directing the Assessing Officer to verify assessee's claim regarding stay of employees/ personnel in India for rendering service during the previous year relevant to the assessment year under dispute. That being the case, there is no mistake in the decision of the Tribunal. As regards the decision of Tribunal, Mumbai Bench, in case of LinkLaters LLP (supra) cited by the leaned Sr. Counsel for the assessee, on careful reading we found it to be not applicable to the facts of the present case, as it has been decided on the basis of its own peculiar facts. The Tribunal has recorded a finding of fact that the details of income ..... X X X X Extracts X X X X X X X X Extracts X X X X
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