9911796707
TMI Blog2012 (11) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... ract amount was attributable to its Permanent Establishment (PE) in India. 3. Briefly stated the facts of the case are that the assessment order in this case was passed on 24.03.2000 determining total income at Rs. 7.15 crore against the income declared by the assessee at Rs. Nil. The learned CIT(A) vide his order dated 30.03.2004 came to hold that the duration of work in India exceeded 9 months and the period for all the contracts should be taken together under Article 5 of Indo-Mauritius treaty to constitute the PE of the assessee in India. The action of the A.O. in taxing the income u/s 44BB was confirmed. The assessee preferred appeal before the Tribunal which came to be disposed off vide its order dated 22.03.2010 in ITA No.8084/Mum/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les in the light of which the duration of a site is to be ascertained for the purpose of applying threshold limit of duration test. The date on which invoice is raised for mobilization advance, as adopted by the Assessing Officer in this case, is also not decisive for the purpose of determining the duration of the PE. On what date a requisition is made for advance has nothing to do with actual work, or incidental preparatory work preceding, and thus forming integral part of, the actual core work, at site. Similar sail out barge is an activity which takes place after the work at site comes to an end. The date on which sail out of barge starts or is completed is essentially a date subsequent to abandoning the work at the site. This date is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the afore-quoted direction of the Tribunal that the learned first appellate authority was required to examine and determine the duration in respect of three contracts independently and not on a consolidated basis. It was further directed to count the period of say in India by considering the actual date of commencement and completion of the contracts and not what has been mentioned in the agreements. The Tribunal further held that the date on which invoice was raised is not decisive for the purpose of determining the duration of the PE and similarly on what date requisition was made for advance has also nothing to do with the actual work at site. The Tribunal also held that a site exists from the date on which the contractor begins hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ld. DR to show that there is any infirmity in the impugned order in recording the starting or completion dates or the computation of duration in respect of such two contracts. Since the duration in both these contracts is less than nine months, obviously the mandate of article 5 cannot be activated. 7. However, the learned Departmental Representative contended that the learned CIT(A) erred in considering the dates of commencement and actual date of completion by entertaining certain fresh material for the first time without confronting it to the Assessing Officer. It was there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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