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TMI Blog2024 (1) TMI 1408X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the following grounds of appeal in ITA No. 2377/ Del/2022 : 1. The order of the Ld. AO is contrary to the facts & circumstances of the case and the legal provisions and is, therefore, bad in law. 2. That on the facts and the circumstances of the case and in law, the Ld. AO has erred in making an addition amounting to 710,46,33,420 to the returned income, addition being 3.75 % of 2279,02,24,548 ( i.e. 5 % of revenue from India multiplied by an ad- hoc attribution rate of 75 %) received by the Appellant on account of offshore supplies) from its customers in India. 2.1 That the Ld. AO has erred in holding that the Appellant has a Permanent Establishment ('PE') in India in terms of Article 5 (2) of India- France Double Taxation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. That the Ld. AO has erred on facts and in law in levying interest under section 234 A, 234 B and 234 C of the Act 5. That the Ld. AO has erred on facts and in law in initiating the penalty proceedings under section 270 A of the Act 3. At the outset, the ld. Counsel for the assessee and the ld. DR stated that the issue in all three appeals are squarely covered in assessee's favour vide order dated 11.11.2022 in ITA Nos.4404 to 4406 & 8818/Del/ 2019 for the assessment years 2011 -12, 2013 -14 to 2015-16 in assessee' s own case. 4. We have considered the submissions of both the parties and perused the material available on the record. In the present case, it is noticed that an identical issue having similar facts was a subject matter o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, supervision of maintenance, supply of spares and operation and maintenance manuals. 4. Before the Assessing Officer, in different assessment years, the assessee claimed that the amounts received from services rendered under the contracts in India are taxable in India. However, insofar as, the amount received towards off- shore supply of equipments, it was submitted by the assessee that the amount is not taxable in India. The Assessing Officer, however, did not accept assessee' s claim. Relying upon the assessment orders passed for assessment years 2006-07,2008-09 and 2010-11, the Assessing Officer held that the assessee had a f ixed place PE in India in terms with Article 5 (1) of the Tax Treaty and 1 % of the revenue earned by the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of contracts, either before the Tribunal or before the Assessing Officer so that facts can be properly appreciated to come to a definite conclusion, whether the assessee had a PE in India or not. In this context, he drew our attention to the application f i led under rule 29 of the Income Tax (Appellate Tribunal) Rules, 1963 seeking permission to furnish additional evidences. Alternatively, he submitted, the matters may be restored back to the Assessing Officer for deciding afresh after examining the contracts and the scope of work as well as the apportionment of work between the members of the consortium. 6. Learned Departmental Representative submitted, when the assessee had opportunity to furnish the contracts before the Assessing Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examine the contracts thoroughly. Considering the fact that while deciding the issue relating to existence of PE, the departmental authorities have simply relied upon decision taken in earlier assessment years without verifying the factual position qua contracts executed in these assessment years, in our view, the assessee must be given an opportunity to furnish the relevant contracts before the departmental authorities to establish its case that in the assessment years under consideration the assessee did not have any PE in India so as to bring to tax the income from off- shore supplies. 8. In view of the aforesaid, we are inclined to restore the matters back to the Assessing Officer for fresh adjudication after thoroughly examining the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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