TMI Blog2022 (6) TMI 959X X X X Extracts X X X X X X X X Extracts X X X X ..... n categories. We have gone through the order of the Tribunal. Tribunal has elaborately discussed the evidence produced through documents impounded during the survey. The Tribunal noted the documents exchanged by the persons co-ordinating in the activities carried out at the site and the list of messages, including fax and radio messages. Tribunal referred to the employees at this office and examined the roles performed by each of the employees. The Tribunal found that the role of employee Mr.Tarkar was only logistic and coordination, whereas Mr.Rodrigues looked after arranging meetings. Two other employees were only looking after communications. Tribunal, having considered this material, recorded a finding that none of the document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1998-99 challenging the order passed by the Commissioner of Tax (Appeals). Income Tax Appeal No.4028/2002 was filed by the Appellant- Revenue, and Income Tax Appeal No.4434/2002 was filed by the Assessee before the Income Tax Appellate Tribunal. By a common order dated 6 May 2006, the appeal filed by the Revenue was dismissed by the Tribunal, whereas the appeal filed by the Assessee was allowed. 3. Such a joint appeal against the disposal of two appeals ought not to have been filed by the Appellant- Revenue. The learned counsel for the Respondent- Assessee submitted that such a combined appeal ought not to have been filed but contends that assuming it to be permissible, there is no merit in either of the appeals. Therefore, we have proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. According to the Revenue, what the Assessee has its office at this premises is as per Article 5 of the Agreement for Avoidance of Double Taxation and Prevention of Fiscal Evasion with Mauritius (Indo Mauritius Tax Treaty) and, therefore, the Respondent-Assessee has a permanent establishment as defined in Article 5(2)(c) of the Treaty. The Tribunal has upheld the contention of the Assessee. 6. Article 5 of the Treaty reads thus: ARTICLE 5 - Permanent establishment - 1. For the purposes of this Convention, the term permanent establishment means a fixed place of business through which the business of the enterprise is wholly or partly carried on. 2. The term permanent establishment shall include- (a) a place of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for similar activities, which have a preparatory or auxiliary character for the enterprise. 4. .. .. .. .. .. .. .. 5. .. .. .. .. .. .. .. 6. .. .. .. .. .. .. .. 7. The learned counsel for the Appellant- Revenue sought to contend that there was a survey carried out under section 133A of the Income Tax Act, 1961 on 10 August 2000, wherein it was found that the Assessee kept the office of the Company at Dubai for its business. It was contended that the Assessee did not have any functional office in Mauritius, and the office at Andheri, Mumbai, was used for the project implemented by the Assessee company. The learned counsel for the Appellant contended that since it was an admitted position that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after communications. The Tribunal, having considered this material, recorded a finding that none of the documents showed any business done from the office. The documents such as the departmental paper-book and daily progress report, which were examined, showed that the work provided backend operations. It was not established by the Appellant- Revenue that any substantial business has been done from the office. After considering these documents, the Tribunal found that the concerned place of business was only for the supply of information having preparatory or auxiliary character. Accordingly, the Tribunal concluded that the same would fall under Article (5)(3)(e)(ii). This finding of fact, recorded by the Tribunal after due consideration o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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