TMI Blog2021 (7) TMI 1440X X X X Extracts X X X X X X X X Extracts X X X X ..... iness as enunciated of the judgment of Hon'ble Supreme Court in the case of Morgan Stanley Co. [ 2007 (7) TMI 201 - SUPREME COURT] The claim of the assessee that they did not have a place at their disposal cannot be accepted in view of the judgment of Hon'ble Supreme Court in the case of Formula One World Championships Ltd. [ 2017 (4) TMI 1109 - SUPREME COURT] in the case of Azadi Bachao Andolan [ 2003 (10) TMI 5 - SUPREME COURT] and also E-funds IT Solutions [ 2017 (10) TMI 1011 - SUPREME COURT] The facts on record undisputedly prove that the premises AHL are at the disposal of the assessee for conduct of their business. While coming to the issue of at the disposal in the premises is available for the assessee for running o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordingly restored to the file of Assessing officer for deciding in the light of the direction of the Tribunal in AY 2013-14, as reproduced above. Appeal of the assessee is allowed partly for statistical purposes. - Shri Kul Bharat, Judicial Member And Shri O.P. Kant, Accountant Member For the Appellant : Sh. Ajit Jain, CA. For the Respondent : Sh. Bhaskar Goswami, CIT. ORDER PER O.P. KANT, AM: The present appeal by the assessee is directed against the order dated 28.07.2017 passed by the Assistant Commissioner of Income Tax, Circle-2(1)(1), International Taxation, New Delhi (hereinafter referred to as the Assessing Office ) under section 144C(13) r.w.s. 143(3) of the Income-tax Act, 1961 (in short the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leged PE of the Appellant in India inspite of entity level operating losses 2. Without prejudice to Ground No. 1 above, on the facts and circumstances of the case and in law, the AO / DRP erred in arbitrarily adopting 25 percent of the gross receipts as taxable income attributable to the Appellant s alleged PE in India under Article 7 of the Tax Treaty without appreciating that (i) the entire activities are not carried on from India; (ii) there are no profits attributable to the alleged PE in India; (iii) even if it is held that profits are attributable then the same should be restricted to only in relation to activities carried out in India; (iv) the Appellant has incurred overall losses during the calendar year ended 31 December 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear 2013-14. 3. The learned DR has not disputed the factual position. 4. We have heard both the parties through Video Conferencing facility and perused the relevant material on record. We find that identical issue raised in the present appeal has 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: 4. 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. 56. We find that from the concurrent reading of the Strategic Oversight Agreements (SOA), the assessee has been technically operating the ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the enterprise. It is sufficient to have certain amount of space at their disposal to conduct their business operations. Further, the place of business may also be situated in the business facilities of any other enterprise too. Thus, it can be said that the assessee who is running the business operations at the premises available for constant disposal in the hotel can be said to be a place of business. The availability of an office premises to a foreign company in the premises of the contracting party in order to ensure that both the parties comply with their obligations to the contract for a long period of time will constitute a permanent establishment. As long as, the premises is at the disposal of the assessee and having the right to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve that the premises AHL are at the disposal of the assessee for conduct of their business. While coming to the issue of at the disposal in the premises is available for the assessee for running of their business even for a limited time it constitutes a PE . 4.1 Accordingly, following the finding of Tribunal (supra), the Ground No. 1 of the appeal is decided against the assessee. The Ground No. 1 is accordingly dismissed. 5. As regards the grounds No. 2 3 of the appeal of the assessee, the learned counsel for the assessee further submitted that this identical issue has been restored to the AO by the order of the Co-ordinate Bench of the ITAT for assessment year 2013- 14. 6. The learned DR has not disputed the factual posit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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