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2018 (12) TMI 1321 - AT - Income TaxCharacterization of income earned - Income accrued in India - existence or otherwise of a Permanent Establishment (PE) or a fixed place of business in India - appellant is a company incorporated in United Kingdom and is also a tax resident of United Kingdom - Held that - Since the facts and circumstances in this year remain the same as in the past years, which has been considered by the Tribunal, we find no reason to distract from the earlier decision of the Tribunal. Pertinently, it is also not the case of the Revenue that there is any change in the nature of the income being earned by the assessee from TCL than that considered by the Tribunal in its order dated 14.07.2017 (supra). Therefore, following the precedent in assessee s own case for Assessment Years 2000-01 to 2005-06, the stand of the assessee has to be approved. Before parting, we may make a mention of the discussion sought to be made by the DRP in the impugned order regarding the inapplicability of the ratio of the decision of the AAR in the case of ISRO Satellite Centre 2008 (10) TMI 15 - AUTHORITY FOR ADVANCE RULINGS . In this context, we find that this aspect of the controversy has been expressly considered by our coordinate Bench while rendering its decision earlier. Therefore, we find no reason to uphold the stand of the Revenue in this year following the precedent in the assessee s own case We find that the assertions of the assessee qua the activity of the assessee and liaison office as well as the significance of the use of SSMS equipment located in India qua the services provided to VSNL clearly establishes that the same could not be construed to constitute a PE in India. The DRP, in our view, has also not referred to any specific instances in the functioning of the liaison office to point out that it was rendering services which could be construed as being a PE in India. Considering the orders of the authorities below as well as the material led by the assessee before the lower authorities, in the present case, it is safe to deduce that the Revenue has failed to discharge its burden of proving that the activities of the liaison office were such as to construe it to be a PE in India. On the aspect of use of SSMS equipment also, we find that there is no reason to hold that it could be construed as a PE in India. So far as the reference to the LES made by the DRP in Assessment Years 2010-11 to 2012-13 is concerned, the same, in our view, is quite misplaced. The DRP itself notes that the LES is owned by the LESO, i.e. VSNL. It is also a feature of assessee s agreement for providing services that it is the LESO, i.e. VSNL, who has the full right and responsibility with regard to the LES. In any case, it is undeniable that the LES is not owned by the assessee, an aspect which the DRP itself has noted in its order. Therefore, considering the matter in its entirety, we find it erroneous on the part of the Assessing Officer to hold that there exists a PE of the assessee in India. Thus, assessee succeeds on this aspect also. Insofar as Ground as relates to income computed by the Assessing Officer, which can be attributable to the PE of the assessee in India. Since we have upheld the primary stand of the assessee that there does not exit any PE of the assessee in India, the dispute in Ground of appeal no. 5 is rendered academic and is dismissed as infructuous.
Issues Involved:
1. Determination of Total Income. 2. Classification of Receipts as Royalty. 3. Adherence to Advance Ruling. 4. Existence of Permanent Establishment (PE). 5. Ad-hoc Profitability Rate. 6. Interest under Section 234B. 7. Credit for Tax Deducted at Source (TDS). 8. Initiation of Penalty Proceedings under Section 271(1)(c). Issue-wise Detailed Analysis: 1. Determination of Total Income: The assessee contested the Assessing Officer's (AO) determination of total income at ?19,18,27,475, asserting that the AO should consider the income as returned by the appellant. 2. Classification of Receipts as Royalty: The primary dispute revolved around whether amounts receivable from Tata Communications Limited (TCL) were 'royalty' as defined under Section 9(1)(vi) of the Income Tax Act and Article 13(3) of the India-UK DTAA. The AO and DRP classified these receipts as royalty, while the assessee argued they were 'business profits' under Article 7 of the India-UK DTAA, not taxable in India due to the absence of a PE. The Tribunal, referencing its previous decision for Assessment Years 2000-01 to 2005-06, disagreed with the Revenue's stand, concluding that the nature of receipts was not royalty. 3. Adherence to Advance Ruling: The assessee claimed that the AO partially adhered to an advance ruling determining the appellant's taxability, applying it to one customer but not to another. The Tribunal referenced its prior decisions, which supported the assessee's stance, indicating that the advance ruling should be uniformly applied. 4. Existence of Permanent Establishment (PE): The AO concluded that the assessee had a PE in India through its Space Segment Monitoring System (SSMS) and liaison office (LO). The Tribunal noted that the LO was functioning under RBI's approval, limited to liaison activities without engaging in business or trading activities. The Tribunal found no evidence from the Revenue to prove that the LO's activities exceeded its permitted scope. Additionally, it was established that SSMS was not operational during the relevant period. The Tribunal concluded that neither the LO nor the SSMS constituted a PE in India. 5. Ad-hoc Profitability Rate: The AO applied an ad-hoc profitability rate of 30%, which the assessee contested, citing minimal operational presence in India. Given the Tribunal's finding that there was no PE in India, this issue was rendered academic and dismissed as infructuous. 6. Interest under Section 234B: The Tribunal noted that the charging of interest under Section 234B was consequential and did not require specific adjudication. 7. Credit for Tax Deducted at Source (TDS): The assessee sought credit for TDS amounting to ?24,89,984. The Tribunal restored this matter to the AO for appropriate action as per the law. 8. Initiation of Penalty Proceedings under Section 271(1)(c): The Tribunal considered the initiation of penalty proceedings premature and dismissed this ground. Conclusion: The Tribunal allowed the appeals for Assessment Years 2007-08 to 2012-13, concluding that the receipts from TCL were not royalty, the assessee did not have a PE in India, and directed the AO to allow TDS credit and dismiss penalty proceedings.
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