2014 (1) TMI 385 - AT - Income Tax

Status of Assessee Taxability of Profits - Profits from the operation of ships to be taxable or not in India - Whether the assessee is having a Permanent Establishment in India OR not under Article 5 of AADT Held that - The AO has not at all considered the issue regarding PE and CIT (A) has considered the issue with reference to Article 5(6) - Technically, CIT (A) has decided the issue relating to PE and it can be considered with reference to the ground taken by the department - but, in order to have a complete holistic view, it is necessary that all the relevant Articles dealing with the issue are considered by the lower authorities before arriving at any conclusion The decision of Deputy Director of Income tax (International Taxation) v Thoresen Chartering Singapore (Pte) Ltd. 2008 (6) TMI 227 - ITAT BOMBAY-L followed order of the CIT(A) set aside and the matter restored to AO for fresh consideration Decided in favour of Revenue.

Summary

Issues:
1. Applicability of Article 8A of the AADT between India and Netherlands.
2. Existence of Permanent Establishment (PE) in India within the meaning of Article 5 of the AADT.

Analysis:
1. The department appealed against the CIT(A)'s decision regarding the applicability of Article 8A of the AADT between India and Netherlands. The department argued that the assessee was not eligible for treaty benefits as it did not own or charter ships during the relevant assessment years. The department contended that the hiring of containers by the assessee was not incidental to the operation of ships, thus making the income taxable in India. The AO also asserted that the presence of an agent in India established a PE for the assessee. However, the CIT(A) ruled in favor of the assessee, stating that the income from Indian operations cannot be taxed under Article 7 of the treaty due to the absence of a PE in India. The CIT(A) emphasized that the agent in India was of an independent nature, not constituting a PE for the assessee.

2. The department's second ground of appeal focused on whether the assessee had a PE in India, which would impact the taxation of profits under Article 7 of the DTAA. The department argued that the assessee's maintenance of containers in India constituted a fixed place of business, necessitating taxation of profits attributable to the PE in India. However, the CIT(A) held that the assessee, operating through an independent agent in India, did not have a PE as per Article 5(6) of the AADT. The department sought to support its argument with different reasoning, which the CIT(A) acknowledged. The issue of PE was raised before the AO, but no finding was given. Following the decision in a similar case, the matter was remanded to the AO for fresh consideration to ensure a comprehensive assessment of relevant treaty articles.

In conclusion, the ITAT Mumbai set aside the CIT(A)'s order and remanded the issues to the AO for fresh consideration in line with the previous decision and the provisions of the AADT between India and Netherlands. The appeals by the department and the cross objection by the assessee were addressed in detail, emphasizing the interpretation and application of relevant treaty provisions to determine the taxability of the assessee's income in India.