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2015 (5) TMI 345 - AT - Income TaxEntitlement to the benefit granted under Section 9(1)(i) - procurement of goods for the purpose of exports - Assessing Officer treating the Tesco International Sourcing Limited - India Liaison Office as PE of the assessee - Held that - Respectfully following the decisions of the Hon'ble Karnataka High Court ( 2015 (4) TMI 505 - KARNATAKA HIGH COURT) and that of the co-ordinate bench of this Tribunal in the assessee's own case for Assessment Years 2003-04 to 2007-08 2014 (1) TMI 799 - ITAT BANGALORE by taking into account all the aspects of the facts and circumstances of the issue as deliberated upon above and also in consonance with the judicial views (supra), we are of the view that Explanation 1(b) to s. 9(1)(i) of the Act is clearly applicable to the assessee s case and, thus, no income was derived by the assessee in India through its operations as LO in India. - Decided in favour of assessee.
Issues Involved:
1. Determination of whether the activities of the Liaison Office (LO) of Tesco International Sourcing Ltd., Hong Kong in India constitute a Permanent Establishment (PE) under Section 9(1)(i) of the Income Tax Act, 1961. 2. Attribution of profits to the LO in India and the applicability of Explanation 1(b) to Section 9(1)(i) of the Act. 3. Consideration of judicial precedents in similar cases, specifically the decisions in the cases of Nike Inc. and Jebon Corporation India. Issue-wise Detailed Analysis: 1. Determination of PE Status: The primary issue was whether the activities of Tesco International Sourcing Ltd., Hong Kong's Liaison Office (LO) in India constituted a Permanent Establishment (PE) under Section 9(1)(i) of the Income Tax Act, 1961. The Assessing Officer (AO) concluded that the LO's activities were not confined to the purchase of goods in India for export purposes but included supply chain management activities for Tesco Hong Kong. Therefore, the AO determined that the LO's activities were not covered by the exception in Explanation 1(b) to Section 9(1)(i) of the Act, attributing significant income to the LO's operations in India. 2. Attribution of Profits and Applicability of Explanation 1(b): The AO attributed profits to the LO based on the premise that its activities contributed significantly to earning commission income. The AO passed draft assessment orders determining the incomes of the assessee for various assessment years. The assessee filed objections before the Dispute Resolution Panel (DRP), which accepted the assessee's contentions, relying on the Tribunal's decision in the assessee's own case for earlier assessment years (2003-04 to 2007-08). The DRP held that the LO's activities were confined to procurement for export, thus falling under the exception provided in Explanation 1(b) to Section 9(1)(i). 3. Consideration of Judicial Precedents: The Revenue appealed against the DRP's orders, arguing that the DRP erred in relying on the decision in the Nike Inc. case instead of the Jebon Corporation India case. The Tribunal noted that the co-ordinate bench had considered both cases while deciding the assessee's case for earlier assessment years and found the facts of the Nike Inc. case more applicable. The Tribunal upheld the DRP's reliance on the Nike Inc. decision, which held that activities confined to the purchase of goods for export do not constitute a PE. The Tribunal also referenced the Mumbai Bench's decision in M. Fabrikant and Sons Ltd., which supported the view that activities prior to purchase are covered by Explanation 1(b) to Section 9(1)(i). Conclusion: The Tribunal, after considering the submissions and judicial precedents, held that the LO's activities were confined to procurement for export and thus fell under the exception in Explanation 1(b) to Section 9(1)(i) of the Act. Consequently, no income was deemed to accrue or arise in India through the LO's operations. The Tribunal dismissed the Revenue's appeals and the assessee's cross-objections as infructuous, affirming the DRP's orders for the assessment years in question.
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