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TMI Blog2012 (11) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... rmanent establishment. The duration of second contract as per the above table is only 10 days and the third contract is 3 months and 14 days. Patently such duration is less than the prescribed period of 9 months. No material has been placed on record by the DR to show that there is any infirmity in the impugned order in recording the starting or completion dates of duration of such contracts. Since the duration in all these contracts is less than nine months, obviously the mandate of article 5 cannot be activated. In the absence of any PE there cannot be any question of taxability of business profit as per Article 7 - in favour of assessee. - IT APPEAL NO. 2089 (MUM.) OF 2011 - - - Dated:- 12-10-2012 - R.S. SYAL AND VIJAY PAL RAO, JJ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in India is not required, this nevertheless to be examining whether time spent on a specific contract is more than nine months or not. The CIT(A) ought to have examined this aspect of the matter and given her findings on duration of each project site. We, therefore, consider it necessary to remit the matter for the limited purposes of adjudication on this aspect of the matter. Even as we do so, it is necessary to point out that what is required to be ascertained is the time spent on the contract and it is nothing to do with the dates on which invoices are raised for advances and for demonization's and sail outs. As the UN Model Convention Commentary, incorporating OECD Model Convention Commentary, puts it, "a site exists from the date on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be substituted for the actual dates of commencement of work and completion of work - as evidenced by the material on record. The work schedule set out in the contract cannot, therefore be decisive of date of commencement and completion of work at site. What is already required to be seeing, as we have elaborated above, is the duration for which the work actual or preparatory is carried out at site." 4. The learned CIT(A), in the fresh proceedings pursuant to the order passed by the Tribunal, came to hold that the duration of work in India in respect of each contract did not exceed 9 months and hence the assessee did not have any PE in India. It is this finding of the learned CIT(A) against which the Revenue is aggrieved in the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsequent to abandoning the work at site. The learned CIT(A) has tabulated the actual date of commencement and completion along with duration in respect of three contracts distinctly as under:- Contract No. Contract Name Actual date of commencement Actual date of completion Duration 04507 Enron Oil Gas 12 March, 1996 22 November, 1996 8 months 11 days 04406 Heermac 12 November, 1996 22 November, 1996 10 days 04522 Enron Oil Gas 05 February, 1997 18 May, 1997 3 months 14 days 6. From the above chart it is apparent insofar as first contract is concerned, the duration is 8 months 11 days. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... additional material worth the name was placed before the learned CIT(A). He drew our attention towards the order passed by the learned CIT(A) in the first round dated 30.03.2004 in which there is a reference to the duration of work in respect of these three contracts independently. This contention of the ld. DR is not capable of acceptance. Be that as it may, there is no ground in the appeal about the violation of rule 46A of the I.T Rules, 1962. 8. From the above discussion it follows that the direction given by the Tribunal in the first round was confined to examining the duration in respect of each contract for determining whether or not any PE was constituted in terms of Article 5 of the DTAA between India and Mauritius. Such directi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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