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2019 (1) TMI 1720 - AT - Income TaxCondonation of delay - HELD THAT - As perused the facts stated by the assessee in its application for condonation of delay which is also supported by the affidavit of the authorised officer and it is apparent that no sooner did the assessee came to know about the assessment order it took immediate steps for filing of the appeal. It is also fact that assessee is not benefited by causing delay in filing of the appeal. As relying on MST. KATIJI AND OTHERS 1987 (2) TMI 61 - SUPREME COURT we condone the delay in filing the appeal. Existence of permanent establishment - Income accrued in India - taxability of offshore supply and disallowance of expenses on account of non deduction of tax - HELD THAT - Identical issue has been examined in case of the assessee with respect to the same contract by the coordinate bench in earlier years wherein it has been held that the assessee has a permanent establishment in India and the activities carried on to the extent of the project office of the assessee is required to be attributed as income accruing and arising to the assessee in India. To this extent, the order challenged by the assessee of the coordinate bench before the honourable High Court has been upheld. As relying on own case 2013 (12) TMI 1594 - UTTARAKHAND HIGH COURT it is apparent that for that assessment year also the existence of the permanent establishment was upheld and only for the purpose of the profit attribution the matter was set aside to the file of the learned assessing officer. Attribution of income where the learned assessing officer has upheld 25% of the gross revenue build by the appellant during the relevant previous year in respect of activity carried out outside India - HELD THAT - As in the earlier years the coordinate bench set aside the issue back to the file of the learned assessing officer as well as for assessment year 2007 - 08 and 2008 - 09 the issue has been set aside to the file of the learned assessing officer for the purpose of determining the profit attribution, we also respectfully following the decision of the coordinate bench as well as the honourable High Court set aside the issue back to the file of the learned assessing officer with a direction to the assessee to submit the profit attribution report with respect to assessment year 2009 - 10 and 2010 - 11 containing the exhaustive functions performed by the project office in relation to the offshore supply. The assessee is also directed to produce the site of the sale of goods with respect to the supply. Assessee is also directed to produce all the documents as decided by the learned assessing officer duly translated in English language along with the invoices and the nature of activities carried out by the assessee in accordance therewith. Accordingly ground number 4 and 5 of the appeal of the assessee is allowed with above direction. Disallowance under section 40 (a) (i) and (ia) - amount represents the reimbursement of the expenditure - HELD THAT - As the above amount is reimbursement there is no requirement of tax deduction at source on the above sum. Even otherwise the assessee is a non-resident however the recipient of the income is a resident company. Therefore if the recipient company has incorporated the above amount in its income and assessee fulfils the necessary condition as laid down under section 201 (1) of the income tax act the above amount cannot be disallowed. In view of this we set aside these disallowance back to the file of the learned assessing officer with a direction to the assessee to produce necessary detail with respect to the above company. The AO may examine the same and if the necessary conditions are satisfied in terms of the retrospective amendment made by the finance act 2012, the disallowance may be deleted. Amount paid to M/s Terras transporters PTE Ltd Singapore - assessee has claimed that is the recipient of the income is a resident of Singapore and according to article 8 of the double taxation avoidance agreement the income is chargeable to tax only in Singapore and not in India - HELD THAT - Assessee has not addressed article 24 of the double taxation avoidance agreement which is limitation of the benefit available to the resident of Singapore company. In view of this the disallowance with respect to above payment is also set aside to the file of the learned assessing officer with a direction to the assessee to prove before the assessing officer that recipient of the income is eligible for benefit of double taxation avoidance agreement with respect to article 8 and 24 of the double taxation avoidance of India and Singapore. Accordingly ground number 6 of the appeal of the assessee set aside to the file of the learned assessing officer. Adhoc disallowance of the expenditure incurred under the head construction expenses - HELD THAT - As assessee could not produce the bills, in the interest of the justice 1 more opportunities given to the assessee to produce the necessary bills as submitted by the learned authorised representative before the assessing officer. The learned assessing officer may examine the details in the bills produced by the assessee, if any, and then decide the whole issue afresh. Accordingly ground number 7 -8 of the appeal of the assessee are set aside to the file of the learned assessing officer. Accordingly these grounds are allowed with above direction.
Issues Involved:
1. Existence of Permanent Establishment (PE) 2. Attribution of Income 3. Disallowance under Section 40(a)(i)/(ia) of the Income Tax Act Detailed Analysis: 1. Existence of Permanent Establishment (PE): - Issue: Whether the assessee had a fixed place of business in India under Article 5(1) of the India-Korea Double Taxation Avoidance Agreement (DTAA) due to its project office in India. - Judgment: The Tribunal upheld the existence of a PE in India, referencing earlier decisions for assessment years 2007-08 and 2008-09. The assessee's project office in Mumbai, established for coordination and communication, was considered a PE. The Tribunal dismissed the assessee's argument that the project office's activities were merely preparatory and auxiliary. It was held that the project office played a significant role in the execution of the Vasai East Development Project (VED Project). 2. Attribution of Income: - Issue: Attribution of revenues from activities carried on outside India to the alleged PE in India. - Judgment: The Tribunal noted that the assessee failed to provide sufficient evidence to refute the attribution of income to the PE. The assessee's argument that no income should be attributed to the PE due to losses in outside India activities was not accepted. The Tribunal set aside the issue back to the Assessing Officer (AO) for a detailed examination, directing the assessee to submit a profit attribution report and relevant documents translated into English. The AO was instructed to determine the percentage of income attributable to the PE based on the functions performed by the project office. 3. Disallowance under Section 40(a)(i)/(ia) of the Income Tax Act: - Issue: Disallowance of expenses totaling INR 25,557,055 for non-deduction of tax at source. - Judgment: - Logistics Enterprise Pvt Ltd: The Tribunal found that the payment of INR 975,000 was a reimbursement of expenses, not subject to tax deduction at source. The issue was set aside to the AO to verify if the recipient company included the amount in its income. - Teras Transporters Pte Ltd: The Tribunal noted that the recipient, a Singapore-based company, could benefit from the Indo-Singapore DTAA, which exempts shipping profits from Indian taxation. The issue was set aside to the AO to verify the eligibility of the recipient for DTAA benefits under Article 8 and Article 24. Appeals for Assessment Years 2009-10 and 2010-11: - Assessment Year 2009-10: The Tribunal partly allowed the appeal for statistical purposes, setting aside issues related to profit attribution and disallowance of expenses back to the AO. - Assessment Year 2010-11: The Tribunal upheld the existence of the PE and set aside the attribution of income and disallowance of construction expenses back to the AO for re-examination. The appeal was partly allowed for statistical purposes. Conclusion: The Tribunal's judgment addressed the existence of a PE, the attribution of income to the PE, and the disallowance of expenses for non-deduction of tax at source. The appeals for assessment years 2009-10 and 2010-11 were partly allowed, with several issues remanded to the AO for further examination.
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