1999 (11) TMI 110 - AT - Income Tax

Summary

Issues Involved:
1. Taxation of revenues earned by the appellant in connection with its contract with HHI.
2. Determination of whether the appellant maintained a Permanent Establishment (PE) in India under the India-Netherlands DTAA.
3. Application of the tax rate applicable to a foreign company versus a partnership firm.
4. Levying of interest u/s 234B of the IT Act.
5. Initiation of penalty proceedings u/s 271(1)(c) of the IT Act for concealment of income and furnishing inaccurate particulars of income.

Summary of Judgment:

Issue 1: Taxation of Revenues Earned by the Appellant
The appellant, a partnership firm, executed a sub-contract with Hyundai Heavy Industries Co. Ltd. (HHI) for dredging and back-filling a trench for the Second Bassein Hazira Trunk Pipeline Project. The appellant filed a return of income on a cash basis, claiming the income as non-taxable under the India-Netherlands Double Tax Avoidance Agreement (DTAA) and declared Nil income. The AO, however, assessed the income as taxable in India, raising a demand of Rs. 57,320,631.

Issue 2: Permanent Establishment (PE) in India
The AO held that the appellant maintained a PE in India based on art. 5, sub-art. (2) of the DTAA, as it had a project office in Bombay. The CIT(A) upheld this view, rejecting the appellant's contention that the office did not constitute a PE. The Tribunal, however, found that the project office was of a preparatory or auxiliary character as per art. 5(4)(e) and that the activities did not exceed six months, thus not constituting a PE under art. 5(3). The Tribunal concluded that the appellant did not have a PE in India and allowed the appeal.

Issue 3: Tax Rate Application
The CIT(A) directed the AO to consider the appellant's claim regarding the applicable tax rate as per law. This issue was not further elaborated upon in the Tribunal's judgment.

Issue 4: Levying of Interest u/s 234B
The CIT(A) confirmed the AO's order that s. 234B applies even if the income is subject to tax deduction at source. However, the Tribunal did not address this issue separately as it became redundant after allowing the appellant's claim on the first two grounds.

Issue 5: Penalty Proceedings u/s 271(1)(c)
The CIT(A) found the initiation of penalty proceedings to be of a consequential nature and held that no interference was called for. This issue was not further addressed by the Tribunal.

Conclusion:
The Tribunal allowed the appeal, concluding that the appellant did not maintain a PE in India and thus the income was not taxable in India. The issue of levying interest u/s 234B was rendered redundant. The appeal was allowed in favor of the appellant.