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TMI Blog2017 (10) TMI 1245X X X X Extracts X X X X X X X X Extracts X X X X ..... t order and the notice of demand under Section 156 of the Act was issued in gross violation of the interim order of this court. The same is a nullity in the eyes of law and cannot be enforced. PE in India - Held that:- The Hon’ble Delhi High Court for assessment year 2007-08 and 2008-09 [2015 (8) TMI 1390 - DELHI HIGH COURT] respectively has clearly held that assessee did not have a PE in India. - Decided in favour of assessee. - ITA No. 5762/Del/2011 - - - Dated:- 6-10-2017 - SH. BHAVNESH SAINI, JUDICIAL MEMBER AND SH. O.P. KANT, ACCOUNTANT MEMBER For The Appellant : S/sh. Ravi Sharma Rishabh Malhotra, CAs For The Respondent : Sh. T.M. Shiv Kumar, CIT(DR) ORDER PER O.P. KANT, A.M.: This appeal by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n assessed in the preceding years. * The appellant has a dependent agent PE in India in the form of M/s Arcadia Shipping Limited ( Arcadia) without appreciating the fact that Arcadia was an independent counseltant, and not an agent of the appellant. 4. On the facts and in the circumstances of the case and in law, the Ld. AO erred in proposing, and the DRP has further erred in upholding/confirming the action of the Ld. AO, that the provisions of Section 44BB of the Act are not applicable to the appellant. 5. On the facts and in circumstances of the vase and in law, the Ld. AO erred in proposing, and the DRP has further erred in upholding/confirming the action of the Ld. AO, to levy the interest u/s 234D of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Act proposing to tax both the outside India and inside India income at the rate of 28.92%. Aggrieved, the assessee filed objections before the Ld. DRP, both challenging the jurisdiction assumed by the Assessing Officer in reopening of the assessment as well as merit of the additions. 2.1 On the issue of jurisdiction, the Ld. DRP was of the view that certain material facts were not disclosed by the assessee, for example: (i) copy of audited statement of accounts including profit and loss account and balance sheet were not filed with the return; (ii) a wrong statement was made that the assessee did not have a PE in India; (iii) the fact that title of goods fast ONGC was not mentioned; (iv) misrepresentation was made th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essing Officer passed the final assessment order on 18/11/2011 assessing the total income at ₹ 51,23,839/-. Aggrieved with the order of the Assessing Officer, the assessee is in appeal before the Tribunal raising the grounds as reproduced above. 3. With reference to ground No. 1, the Ld. counsel of the assessee submitted that in assessment year 2002-03, the assessment was reopened under section 147 of the Act after recording reasons to believe that income escaped assessment. According to the Ld. counsel reasons to believe recorded in assessment year 2002-03 are identical to the reasons recorded in the year under consideration. He submitted that in assessment year 2002-03 the assessee challenged assuming of jurisdiction under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt years i.e. 2002-03 and 2003-04, the Assessing Officer has reopened the assessment in view of the decision of the Hon ble Supreme Court in the case of CIT Another Vs. Hyundai Heavy Industries Co. Ltd., 291 ITR 482 (SC), wherein the Hon ble Supreme Court has observed that: the attraction rule implies that when an enterprise (GE) sets PE in another country, it brings itself within the fiscal jurisdiction of that another country to such a degree that such another country can tax all profits from the GE derives from the source country whether through PE or not . It is the Act of setting out a PE which triggers the taxability of transaction in the source state. 3.3 We find that the Hon ble High Court in Writ Petition No. 2192 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer is covered by the decision of the Hon ble High Court of Uttrakhand (supra) and, accordingly, we quash the reassessment proceedings initiated under section 147 of the Act in pursuance to notice under section 148 of the Act. 4. In respect of ground Nos. 2 to 4, the Ld. counsel submitted that while deciding the issue whether there existed Permanent Establishment (PE) of the assessee in India, the Ld. DRP has followed its own decision for assessment year 2007-08. In the assessment year 2007-08, the Tribunal held that there existed permanent establishment of the assessee, however, on further appeal by the assessee before the Hon ble Delhi High Court in assessment years 2007-08 and 2008-09, the Hon ble High Court held that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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