2011 (4) TMI 515 - AT - Income Tax

Assessment order made u/s 143(3) read with section 144C - The assessee had not furnished the copy of the consortium agreement neither before the Assessing Officer nor before DRP - The assessee has not given the details of expenditure incurred relating to the report prepared by the visiting employees in respect of preparation of Detailed Project Implementation Report - Held that the assessee has not furnished details necessary for arriving at the issue relating to PE - Therefore set aside the matter to the file of the Assessing Officer with the direction to examine the case of the assessee and make a fresh reference to DRP for deciding the issue afresh on merits - The assessee is also directed to supply the copies of consortium agreement and other details necessary for arriving at the conclusion whether there is PE in India or not - Hence appeal filed by the assessee is allowed for statistical purposes.

Issues:
Confirmation of draft order by Dispute Resolution Panel (DRP) under section 144C of the Act.

Analysis:
The appeal by the assessee for the assessment year 2007-08 was made against the order of assessment under section 143(3) read with section 144C of the Act. The grounds of appeal challenged the directions issued by Dispute Resolution Panel-II (DRP-II) and the subsequent assessment order, claiming them to be bad in law and facts. The appellant argued that the assessment order erred in re-computing the tax on a gross basis by assuming the existence of a permanent establishment, contending that the amount in question should only be taxed as technical services. The appellant also disputed the conclusions reached by DRP-II, alleging violations of natural justice and failure to consider objections raised and relevant facts submitted. Moreover, the appellant argued that the order wrongly attributed all profits to an assumed permanent establishment in India without considering evidence supporting services rendered overseas. The appellant further contended that the order failed to acknowledge expenditure directly related to providing services and wrongly imposed interest and proposed penalties without proper justification.

The main issue for consideration was the confirmation of the draft order of the Assessing Officer by the Dispute Resolution Panel (DRP) under section 144C of the Act. The facts revealed that the assessee received a substantial amount under a project consultancy agreement, claiming it as fees for technical services without a permanent establishment in India. However, the Assessing Officer determined the existence of a permanent establishment in India before the project office was established, leading to the conclusion that the consideration received was connected to activities within India. The Assessing Officer assessed the income under section 44DA and forwarded the draft assessment order to DRP. The appellant raised objections before DRP, emphasizing that the services were rendered outside India, and there was no permanent establishment in India due to the short duration of employee visits. Despite the appellant's arguments, DRP found the lack of essential details and documents provided by the assessee to ascertain the existence of a permanent establishment, leading to the conclusion that the receipts were taxable as business income. The Assessing Officer then assessed the income accordingly.

During the proceedings, the appellant contended that DRP did not consider the issue properly and requested a remand for fresh adjudication based on relevant legal precedents. After hearing both parties, the tribunal noted the lack of crucial documents and expenditure details provided by the assessee to determine the permanent establishment issue accurately. Consequently, the tribunal set aside the matter to the Assessing Officer for a fresh examination and directed the assessee to supply necessary documents for a comprehensive review. As a result, the appeal filed by the assessee was allowed for statistical purposes.

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