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TMI Blog2018 (3) TMI 942X X X X Extracts X X X X X X X X Extracts X X X X ..... that the payment made to the expatriate technicians in India is taxable in India irrespective of their stay, CIT correctly held that the original assessment order passed by the AO is erroneous in so far as the provisions of Section 9(1)(ii) of the Act and the DTAA between India and Japan have not been taken into account is pre judicial to the interest of the revenue. AO did not consider the applicability of the provisions u/s 9(1)(ii) of the Act and the DTAA to the facts of this case, while respectfully following the decision of the Hon’ble Apex Court in the case of Malabar Industrial Co. Ltd. vs CIT (2000 (2) TMI 10 - SUPREME Court) - not open for the assessee to challenge the same on the ground that such an exercise amounts only to chang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee is a non resident foreign company incorporated in Japan and is engaged in the business of carrying passengers and cargo by air. Under the Double Taxation Avoidance Agreement between the Government of India and Government of Japan, the income derived by its operations is taxable in Japan. 3. Pursuant to the survey conducted on 24.2.2005 at the premises of the assessee s regional office in New Delhi, learned AO required the assessee to furnish the details as to the total salary and perquisites paid to the expatriate employees resident in India during the Financial Years 2001-02, 2002-03 and 2003-04. On examination of the details, learned AO by order dated 3.5.2005 u/s 201(1)/201(1A) of the Act raised a demand of ₹ 29,30,847/- i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assessment order was required to be modified in respect of the two other employees, namely, Mr. Takashi Suzuki and Mr.Tetsuo Mitera. The assessee is, therefore, challenging this order u/s 263 in this appeal, but with a delay of 120 days. 6. It is submitted on behalf of the assessee that in view of the fact that one Mr. Neeraj Sharma, Administrative Manager, who was handling all the administrative matters was transferred to Japan and was not available to the assessee during the period between the passing of the order u/s 263 and April, 2007, as such, the successor who is not well conversant with the Indian laws of taxation, could not promptly filed the appeal within time. Learned DR opposed the condonation to delay. 7. Though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier adopted view and line of thought of application and is in no manner a consequence to discovery of any error in the order of the learned AO. It is further submitted by the learned AR that this Tribunal passed order dated 27.2.2017 in ITA No.4172/Del/2005 in respect of the two employees, viz., Mr. Masao Koga and Mr. Kiyonori Yana. Basing on the binding precedent of the Hon ble Supreme Court in the case of Pradeep J. Mehta vs CIT (2008) 4 TMI 6 (SC), the Tribunal reached the conclusion that the correct status of the assessee based on the decision of the Hon ble Supreme Court has to be worked out at the end of the learned AO, and for such purpose, the matter was remanded to the file of the AO. She also brought to our notice that pursuan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal in the case of Pride Foramer vs ACIT (supra), the applicability of the provisions u/s 9(1)(ii) of the Act and also the provisions of the DTAA between India and Japan are relevant inasmuch as in view of the law declared in the Pride Foramer vs ACIT (supra), payment made to expatriate technicians in India is taxable in India irrespective of their stay in India. It is not in dispute that in the original assessment order dated 3.5.2005, learned AO did not advert to the applicability of the provisions u/s 9(1)(ii) of the Act or the provisions of the DTAA between India and Japan but considered the case only u/s 6 of the Act in respect of the residential status of the employee. In view of the later decision of the Tribunal dated 21st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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