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TMI Blog2012 (8) TMI 729X X X X Extracts X X X X X X X X Extracts X X X X ..... on record’ liable to be rectified under section 254(2), even if that be a mistake. In any event, there is no mistake in remitting the matter to the file of the C1T(A) for fresh adjudication because none of the authorities below had an occasion to deal with the application of Article 13 of Indo UK tax treaty, on the facts of this case. It is not open to us to revisit our conclusion and place limitations on the powers of the CIT(A] which were not placed in the original order. - Decided against the assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing, it was pointed out by the bench that prima facie there is a mistake apparent from record, which should be considered for rectification under section 254(2) inasmuch as Tribunal given a categorical finding to the following effect and which appears to be contrary to plain wordings of Article 7(1) : "PE or no PE, since entire repairs and overhauling is carried outside India, the profits arising to assessee from such repairs can (sic-cannot) be taxed in India. The existence of PE in a country cannot warrant or justify taxation of all profits arising to,a foreign enterprise in that country. Even if there is a PE, one cannot infer application of force of attraction rule and bring to tax all the profits of a foreign enterprise whether or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .be exercised by the Tribunal either suo motu or at the instance of either of the parties before it". The only rider on this power of suo motu rectification is that the affected party is to be heard on the proposed rectification before it is carried out. We have heard the assessee on the proposed suo motu rectification, and, therefore, there is no bar on exercise of our suo motu rectification of mistake on this point. 5. In our considered view, we missed out on not taking into account the precise wordings of Article 7(1] of India UK Double Taxation Avoidance Agreement which is not on standard OECD model convention or UN model convention and we had no occasion to deal with the import of word "indirectly" mentioned in Article 7(1) of India U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E or no PE, since entire repairs and overhauling is carried outside India, the profits arising to assessee from such repairs can not be taxed in India" 7. To the extent indicated in paragraph 5 and 6 above, paragraph 15 stands rectified. 8. As regards the second error pointed out by the learned counsel, i.e., fresh examination of taxability by the CIT(A) ought to have been restricted to only such part of the payments as constitute 'consideration for use of replacement components' which is distinct and separate on the facts of this case, we are unable to share learned counsel's perceptions. We have held that there is no taxability under Article 7 in respect of business profits as the assessee did not have a 'permanent establishment' in Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o us to revisit our conclusion and place limitations on the powers of the CIT(A] which were not placed in the original order. We have no reason to doubt that while examining the matter afresh, as directed, learned CIT(A) will take into account and deal with all the contentions of the assessee, including assessee's reliance on observations made in the Tribunal's order, by way of a speaking order and in accordance with law. The grievance of the assessee is premature and unfounded. In any case, the scope of section 254(2), is confined to patent and glaring errors apparent on record, and, anything beyond this kind of errors would clearly be outside the ambit of inherently limited scope of section 254(2). 10. We, therefore, reject prayer of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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