9911796707
TMI Blog2023 (11) TMI 1322X X X X Extracts X X X X X X X X Extracts X X X X ..... suance to the directions of learned Dispute Resolution Panel (DRP). 2. The core issue arising in the present appeal is whether the assessee had a Permanent Establishment (PE) in India in terms of Article 5 of India - Switzerland Double Taxation Avoidance Agreement (DTAA) and in case there is a PE, attribution of profit to the said PE. 3. Briefly the facts are, the assessee is a non-resident corporate entity and a tax resident of Switzerland. The assessee has entered into certain contracts with certain Government undertakings in India for offshore supply of plants, equipments, goods etc. Before the Assessing Officer, the assessee pleaded that since offshore supplies were made from outside India and the sale event get completed outside Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether the assessee had a PE in India in the impugned assessment year, is identical to assessment years 2018-19 and 2019-20 as the departmental authorities, while coming to conclusion that the assessee had a PE in India, have entirely relied upon the assessment history of the assessee in assessment years 2018-19 and 2019-20. It is observed, while deciding identical issue of existence or otherwise of PE of the assessee in India, the Tribunal in ITA Nos. 2035 & 2036/Del/2022, dated 25.07.2023 has dealt with identical issue and held as under: "6. We have considered rival submissions and perused the materials on record. As discussed earlier, the short issue arising for consideration is whether the assessees had PE in India during the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted before us. The short issue arising for consideration is whether the assessee had a PE, either fixed place PE or dependent agent PE, in India during the year under consideration. No doubt, the past assessment history of the assessee reveals that existence of PE in India was upheld by the Tribunal and Hon'ble jurisdictional High Court in assessment years 2002-03 to 2006-07 and 2008-09. Perusal of facts on record including the discussion made by the Assessing Officer and learned DRP would reveal that the reason why the existence of PE was upheld in earlier assessment years are as under: (i) The assessee has an office premises at AIFACS building; (ii) Expatriates along with employees of GEIIPL have engaged themselves in the activities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of PE merely relying upon the past orders passed by them and higher appellate authorities. It is trite law, the existence or otherwise of PE has to be determined on year to year basis, as the existence of PE has to be decided based on the definition of PE in the relevant tax treaty. Merely because in one year, the assessee had a PE in India, that by itself cannot lead to the conclusion that the assessee must be having a PE in subsequent assessment year, without looking into the relevant facts. In this context, we refer to the decision in the case of M/s. Bentley Nevada Inc. (supra). Further, in case of E-Funds IT Solution Inc. (supra), Hon'ble Supreme Court has very clearly and categorically held that the onus is entirely on the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merely do a cut and paste job for reopening the assessment without independent application of mind or verification or investigation. The aforesaid ratio laid down by Hon'ble jurisdictional High court squarely applies to the facts of the present appeal, as the departmental authorities have merely followed the decision taken by them and higher appellate authorities in assessee's cases in past assessment years without independent application of mind to the facts brought on record by the assessee or making proper verification/investigation of the evidences. 14. Thus, essentially, the evidences brought on record by the assessee remain uncontroverted. When the evidences brought on record by the assessee are before the departmental authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enue to rebut the claim of the assessees that no PE existed in these years. 8. That being the factual position emerging on record, we hold that the decision taken in case of Nuovo Pignone International SRL Vs. DCIT (supra) would squarely apply to the facts of the present appeals. Accordingly, we hold that the assessees did not have any PE in India in the assessment years under dispute so as to attribute profit to such PE." 4. Due to parity of facts in the impugned assessment year, respectfully following the decision of the Coordinate Bench, we hold that the assessee had no PE in India in the year under consideration. Hence, no profit can be attributed to such nonexistent PE. The Assessing Officer is directed to delete the addition. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
