TMI Blog2019 (10) TMI 1543X X X X Extracts X X X X X X X X Extracts X X X X ..... establishment in India. Since the Indian company who obtained the rights is acting independently, Agency PE provisions are not applicable to the assessee company. The assessee relied on the decision of Ishikawajma-Harima Heavy Industries Ltd [ 2007 (1) TMI 91 - SUPREME COURT ] that incomes arising to a Non-Resident cannot be taxed as business income in India, without a PE. As the assessee does not have any permanent establishment in India, the incomes arising outside Indian Territories cannot be brought to tax. Therefore, there is no need to differ from the findings of the CIT (A) and accordingly the Revenue Appeal is dismissed. - I.T.A. No. 6479/Mum/2018 - - - Dated:- 14-10-2019 - HON BLE SHRI SAKTIJIT DEY, JM AND HON BLE SHRI MANOJ KU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2012 3. 2008-09 ITA No.8627/Mum/2011 22/02/2013 4 2009-10 ITA No.7553/Mum/2012 05/03/2014 5 2010-11 ITA No.1405/Mum/2014 (Cross-Appeals) 27/10/2016 6 2011-12 ITA No.1615/mum/2015 08/11/2016 7 2012-13 ITA No.4877/Mum/2015 (Cross-Appeals) 26/07/2017 8 2013-14 ITA No. 7635/Mum/2016 26/07/2017 3.1 Facts on record would reveal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the facts of the case and stated income directly accrued in India from exhibition of films in the cinema halls / TV channels in India. 3.2 Additionally, the stated income, in the opinion of Ld. AO, would be deemed to have accrued in India in terms of Section 9(1)(i) read with explanation 2(v) to Section 9(1)(vi) which deals with transfer of rights, interalia, in respect of films or video tapes for use in connection with television or tapes for use in connection with radio broadcasting but not including consideration of sale, distribution or exhibition of cinematographic films. Therefore, just because the consideration was excluded from the definition of royalty as per explanation-2 to Section 9(1)(vi), the same would still be deemed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since the department was under appeal in earlier years before Hon ble Bombay High Court, the view of Ld.AO was to be upheld. Resultantly, finally assessment order was passed on 04/10/2018, pursuant to the directions of Ld. DRP, assessing the income at Rs.16.16 Crores. Aggrieved, the assessee is under appeal before us. 5. As noted in the opening paragraphs, it is an admitted position that the issues stood squarely covered in assessee s favor by the lead decision of this Tribunal in assessee s own case for AY 2006-07, ITA No. 3160/Mum/2010 Co.No.17/Mum/2011 dated 30/12/2011 wherein the bench has concluded the matter by observing as under: - 9) We have considered the rival contentions and examined the facts on record. There is no dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he CIT (A) finding is that assessee has a business connection in India. However, he considered that there is no PE to the assessee, the fact of which was also accepted by the Assessing Officer as he has invoked only Article 12(2) and not considered the amounts business income as per PE proviso. It was the contention of the learned Departmental Representative that the assessee having business connection, the findings of which was given by the CIT (A), the amount cannot be excluded without examining PE proviso provisions of the DTAA. In this regard the learned Counsel s submission that under the Income Tax Act as well as under the provisions of DTAA the transaction between the assessee and Indian Company to whom license was granted by virtu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les of section 9(1)(i) will apply in the absence of inclusion under section 9(1)(vi) and relied on the two decisions of the Gujarat and Madras High Courts referred (supra). Even though the cross objection was raised on findings of CIT(A), in view of the observations given above, we are of the opinion that the issue is only academic and does not require any specific adjudication. This decision has subsequently been followed by various co-ordinate benches of the Tribunal in assessee s own case in subsequent years as tabulated above. Further, it is quite evident that Ld. DRP has dismissed assessee s objections only in view of the fact that the department, in earlier years, was in further appeal before Hon ble Bombay High Court. However, not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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