2012 (7) TMI 336 - AT - Income Tax

DTAA between India and Germany - assessee contending that it is having a PE and its profit attributable to the PE is assessable as a business income as per Article 5 read with Article 7 whereas Revenue taxed gross total receipt as FTS taxable @ 10% - assessee further contended that DRP has not considered objections of the assessee and passed a non-speaking order - Held that - It is observed that in subsequent AY the AO himself accepted the case of the assessee that it is having a PE and its profit attributable to the PE is assessable as a business income as per Article 5 read with Article 7. Since DRP did not take cognizance of any of the objections raised by the assessee and passes a non-speaking order hence it deserves to be se aside. Accordingly we restore all these issues to the file of the DRP for re-adjudication.

Summary

Issues:
1. Assessment of income as business income under DTAA between India and Germany.
2. Claim for exemption of certain receipts not attributable to Permanent Establishment (PE) in India.
3. Disallowance of mobilization expenses and other administrative expenses.
4. Charging of interest under sec. 234B of the Income-tax Act, 1961.

Analysis:
1. The appellant contested the assessment order dated 15.09.2010, arguing that its income should be assessed as business income under Article 5 read with Article 7 of the DTAA between India and Germany, instead of being taxed as fee for technical services at 10% on the gross amounts. The appellant cited precedents where the existence of a PE and profit attributable to it were accepted, leading to a different assessment. The tribunal found merit in the appellant's arguments and remanded the case to the DRP for re-adjudication.

2. The appellant further contended that certain receipts were not attributable to its PE in India and should be exempt from taxation. The DRP's non-speaking order failed to address these objections adequately. The tribunal noted the lack of reasoning in the DRP's decision and emphasized the importance of recording reasons to ensure decisions are made lawfully. As the DRP did not consider the objections raised by the appellant, the tribunal set aside the order and directed a reevaluation by the DRP.

3. Regarding the disallowance of mobilization expenses and other administrative costs, the appellant argued that once the gross receipts were taxed at 10%, there was no justification for further disallowances. The tribunal found the Assessing Officer's decision to disallow these expenses questionable and directed the DRP to re-examine this issue along with others raised by the appellant.

4. Lastly, the appellant challenged the charging of interest under sec. 234B of the Income-tax Act, 1961. The tribunal deemed this issue premature for interference at that stage. The tribunal allowed the appeal for statistical purposes, setting aside the DRP's order and remanding all issues for reevaluation. The decision was pronounced on 22.06.2012.