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TMI Blog2013 (2) TMI 923X X X X Extracts X X X X X X X X Extracts X X X X ..... f such business connection can only be taxed to the extent of the activities attributed to PE. In this case, the assessee does not have any PE in India therefore the amount received under the agreement of distribution is not taxable in India. Decision in the case of - ISHIKAWAJIMA-HARIMA HEAVY INDUSTRIES LTD. Versus DIRECTOR OF INCOME-TAX - 2007 (1) TMI 91 - Supreme Court , relied upon. - ITA No. 8627/Mum/2011 - - - Dated:- 22-2-2013 - SHRI RAJENDRA SINGH, AM AND SHRI VIJAY PAL RAO, JM For the Assessee : Sh S Hasan For the Revenue : Sh Narender Kumar ORDER PER VIJAY PAL RAO, JM This appeal by the assessee is directed against the assessment order dated 24th Oct 2011 passed u/s 144C(13) r.w.s 143(3) of the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment Year under consideration is identical as it was involved for the Assessment Years 2006-07 and 2007-08. This Tribunal has framed the issue in para 3 as under: 3 The assessee has raised various grounds in this appeal. However, the only effective and main issue arises for our consideration and adjudication is whether the royalty received by the assessee is assessable to tax in India being business profit attributable to the PE of the assessee in India. 4.1 Thus, it is clear that the issue is identical as in the assessment year under consideration. 4.2 We further note that the Tribunal has decided the issue for the Assessment Year 2007-08 in ITA No.8734/Mum/2010 vide order 10th Oct 2012 in paras 5 6 as under: 5 We have con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a if not as royalty, but as business income. The CIT (A) finding is that assessee has a business connection in India. However, he considered that there is no PE to the assessee, the fact of which was also accepted by the Assessing Officer as he has invoked only 3 Article 12(2) and not considered the amounts business income as per PE proviso. It was the contention of the learned Departmental Representative that the assessee having business connection, the findings of which was given by the CIT (A), the amount cannot be excluded without examining PE proviso provisions of the DTAA. In this regard the learned Counsel s submission that under the Income Tax Act as well as under the provisions of DTAA the transaction between the assessee and Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 2006-07 that the Tribunal has given a finding on the point that the assessee does not have any PE in India because the Indian company who obtained the rights is acting independently. Therefore, Agency PE provisions are not applicable to the assessee company. Since there is no change in the facts and circumstances of the case,; therefore, by following the order of the Tribunal, we hold that the assessee has no PE in India and accordingly, the amount received under the agreement of distribution is not taxable in India. 6 The other issues raised by the assessee in this appeal are consequential and accordingly become infructuous. 4.3 When the facts and circumstances are identical for the Assessment Year 2007-08 as well as Assessment Ye ..... X X X X Extracts X X X X X X X X Extracts X X X X
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