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TMI Blog2021 (11) TMI 1137X X X X Extracts X X X X X X X X Extracts X X X X ..... ven in the hands of appellant. The Hon'ble DRP erred in further approving the same. 3. On the facts and in the circumstances of the case and in law, the Ld. AO erred in holding that the appellant has received revenue from cinema halls/theatres in India without producing any evidence in this regard. 4. On the facts and in the circumstances of the case and in law, the Ld. AO erred in concluding that the income has directly accrued and arisen in India without appreciating that the agreement is signed outside India and the legal rights are also enforceable outside India. 5. On the facts and in the circumstances of the case and in law, the Ld. AO erred in assessing the royal ty received by the appellant from Warner Bros. Pictures (India) Pvt. Ltd. as business income u/s 9(1)(i). 6. On the facts and in the circumstances of the case and in law, the learned AO as well as the Hon'ble DRP erred in holding that Warner Bros. Pictures (India) Pvt. Ltd. is a Dependent Agent permanent Establishment of appellant consciously ignoring Hon'ble DRP own directions for A.Y 2010-11 to A.Y 2012-13 and the binding orders of this Hon'ble Tribunal for A.Y 2006-07 in the case of appellant' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e income tax Act or India-USA DTAA (treaty). The assessee company has mentioned that the Hon'ble ITAT in assessee's own case for the A.Y 2007-08 to 2013-14 has allowed in favour of the assessee and the Hon'ble DRP in favour of the assessee for A.Y 2010-11, 2011-12 and 2012-13. But the A.O has issued show cause notice referring to the various points dated 18.11.2019 in respect of amount to be treated as business income following the precedence. The assessee has filed a letter referred at Para 4 of the assessment order. The A.O has dealt on the nature of income received by the assessee and the various facts which are emerging in the case. The A.O. observed that the revenue is contesting the decisions of ITAT for earlier years before the Honble Bombay High Court. Finally, the A.O has treated the receipts as business income considering the facts and various clauses on the issue at page 33 Para 22 as under: "21.1 Having decided that there is a DAPE in existence through which all distribution activities are carried out in India, the next stage is to determine the extent of prof it attribution. The same would have to be determined in accordance with the provisions of Rule 10 of the IT R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case for earlier A.Ys has considered all the facts in respect of DTTA, India and US relations and granted the relief. The A.O has not accepted the decision of Honble Tribunal for the earlier assessment years as the revenue has filed the appeal before the Hon'ble Bombay High Court. The Ld.AR supported the submissions with the decisions of Hon'ble ITAT and prayed for allowing the appeal. Contra, the Ld.DR relied on the orders of the Lower authorities. 6. We heard the rival submissions and perused the material on record. The sole crux of the disputed issue is with respect to taxability of income generated in India. The Ld. AR has substantiated the arguments with voluminous paper book and the facts that the income cannot be taxed in India. The Ld. AR referred to the provisions of international taxation and the sequence of transactions. We find the Hon'ble Tribunal in assessee's own case for the earlier years has allowed the claim in favour of the assessee. At this juncture, we considered it appropriate to refer to the orders of the Hon'ble Tribunal in assessee's own case from A.Y 2006-07 to 2014-15 as under: 1. ITA No. 3160/Mum2010, A.Y 2006-07 2. ITA No. 8734/Mum/2010, A.Y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee 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 Off icer 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 f indings 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 virtue of the agreement cannot be considered as Agency PE as the Indian assessee is not exclusively dealing with the assessee and referred to the receipts from another company 20th Century Fox to submit that the assessee is also dealing with the other Non Resident Companies, so assessee cannot be considered as Agency PE within the definition of Permanent Establishment. 11) We have examined this aspect also. As rightly held by the CIT (A) even if income arises to the Non-Resi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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