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TMI Blog2021 (7) TMI 1440X X X X Extracts X X X X X X X X Extracts X X X X ..... ct') in pursuance to the direction of Dispute Resolution Panel, New Delhi. The grounds raised by the assessee are as under: Ground No. 1 - Alleged Permanent Establishment ('PE') in India of the Appellant under Article 5(1) and 5(2)(T) of the India - UAE Tax Treaty ('Tax Treaty') 1. On the facts and circumstances of the case and in law, the Assessing Officer ('AO') erred in concluding and the Dispute Resolution Panel ('DRP') erred in holding that the Appellant has a PE in India under Article 5(1) and 5(2)(i) of the Tax Treaty without appreciating that (i) the Appellant has no fixed place of business or presence in India; (ii) its personnel in India were not on secondment but for rendering services to third party customers and their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 31 December 2014. The Appellant prays that the conclusion reached by the AO / DRP with respect to attribution of profits to the alleged PE in India under Article 7 of the Tax Treaty is erroneous, unwarranted and be reversed. Ground No. 3 - Erroneous alternative taxation of India source income as 'Royalty' under Section 9(l)(vi) of the Income Tax Act, 1961 ('the Act') and Article 12 of the Tax Treaty 3. Without prejudice to Ground No. 1 and 2 above, on the facts and in the circumstances of the case and in law, the AO / DRP erred in equating rendering of consultancy services to be in the nature of 'Royalty' under the Tax Treaty and the Act on the contention that it relates to provision of' know-how, skill, experience, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ging to the owners namely, Asian Hotels Ltd. (AHL) through the employees who are recruited by them. The hotel premises have been at the disposal of the assessee during their period of stay. The employees has stayed for a period of 158 days as per the assessee in India while rendering the services. In terms of OECD commentary on Article 5(1) the assessee can be said to be having a permanent establishment owing to existence of a place of business i.e. a facility such as premises, and that place was fixed and established as a distinct place with certain degree of permanence and the foreign enterprise (the assessee) is carrying the business through this fixed place i.e. the premises of the hotel. The assessee can be said to be dependent on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remises for the purpose of the assessee's business on behalf of the party to the agreement can constitute a fixed place PE. We also find that the physical criteria (existence of a geographical location), subject to criteria (right to use the place) and the functional criteria (carrying on the business through that place) as mentioned in the OECD principles with relation to the existence and determination of PE as held by the Mumbai Tribunal in the case of Air Lines Rotables vs. JDIT 131 TTJ 385 have been found to be met by the assessee before us, so as to treat them as having a PE in India. Though, it was argued that the assessee has got no right to use the premises and no premises of AHL was at their disposal, we find on going to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position. 7. We find that the identical issue raised in the present appeal, has already been adjudicated in ITA No. 727/Del/2017 for Assessment Year 2013-14. The relevant portion of the order of Tribunal (supra) is reproduced as under: "7. For the sake of ready reference and convenience, operative part of the order dated 04.12.2019 in ITA No. 579/Del/2013, 779/Del/2014, 1762/Del/2015 and 957/Del/2016 is being reproduced herewith. "60. Based on the clauses of the Strategic Service Agreement and Strategic Oversight Agreements, we hold that the revenue's earned by the assessee are taxable under Article 12 of the DTAA. Regarding the determination of the profit, taken up at ground No. 4 by the assessee, we hereby hold th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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