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TMI Blog2023 (10) TMI 967X X X X Extracts X X X X X X X X Extracts X X X X ..... essee that no PE existed in these years. That being the factual position emerging on record, we hold that the decision taken in case of Nuovo Pignone International SRL Vs. DCIT [ 2023 (6) TMI 1321 - ITAT DELHI] would squarely apply to the facts of the present appeals. Accordingly, we hold that the assessee did not have any PE in India in the assessment years under dispute so as to attribute profit to such PE. The departmental authorities have failed to controvert either the submission or the materials and evidences brought on record by the assessee to demonstrate that they did not have any PE in India in these assessment years. In fact, even at the stage of Tribunal, no contrary material has been brought on record by the Revenue to rebut the claim of the assessee that no PE existed in these years. That being the factual position emerging on record, we hold that the decision taken in case of Nuovo Pignone International SRL [ 2023 (6) TMI 1321 - ITAT DELHI] would squarely apply to the facts of the present appeals. Accordingly, we hold that the assessee did not have any PE in India in the assessment years under dispute so as to attribute profit to such PE. - SHRI G.S. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -07 and 2008-09, the Assessing Officer went on completing assessments for the subsequent assessment years till assessment year 2017-18 and the decision taken by the Assessing Officer was upheld by the higher appellate authorities, including the Tribunal. Based on the past assessment history, the Assessing Officer, while completing the assessments for the impugned assessment years, held that the assessee had a PE in India and accordingly attributed profit from offshore supply and services to the alleged PE. However, it was the case of the assessee before the Assessing Officer as well as before learned DRP that the factual position in the assessment years under consideration have substantially changed due to the following reasons: i. AIFACS building had been vacated by GEIOC on 01.05.2012; ii. No expatriate employee was present in India in these assessment years; and iii. The remuneration paid to GEIIPL had increased substantially from cost + 5% to cost + 25%. 3. Be that as it may, the aforesaid contention of the assessee did find favour with the departmental authorities. Thus, in pursuance to the direction of learned DRP, the draft assessment orders were finalized in ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve also applied our mind to the judicial precedents cited before us. The short issue arising for consideration is whether the assessee had a PE, either fixed place PE or dependent agent PE, in India during the year under consideration. No doubt, the past assessment history of the assessee reveals that existence of PE in India was upheld by the Tribunal and Hon ble jurisdictional High Court in assessment years 2002-03 to 2006-07 and 2008-09. Perusal of facts on record including the discussion made by the Assessing Officer and learned DRP would reveal that the reason why the existence of PE was upheld in earlier assessment years are as under: (i) The assessee has an office premises at AIFACS building; (ii) Expatriates along with employees of GEIIPL have engaged themselves in the activities of soliciting business and concluding contracts. (iii) Remuneration paid to GEIIPL was at arm s length. 11. However, as far as the facts relating to impugned assessment year are concerned, AIFACS building, which earlier constituted the fixed place PE of the assessee in India, was vacated on 01.05.2012. In fact, this was brought to the notice of both the Assessing Officer and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out making any effort to look into the specific facts of the impugned assessment year. As discussed earlier, the assessee has brought on record cogent evidence to demonstrate that there is substantial change in facts in impugned assessment year qua the existence of PE. The specific averment of the assessee regarding vacation of office premises at AIFACS building and no visit by expatriates in India during the year, have not been controverted by the departmental authorities by any specific factual finding. In case of Blackstone Capital Partners (Singapore) VI FDI Three Pte. Ltd. (supra), Hon ble jurisdictional High Court, while dealing with the issue of reopening of assessment based on information received from third party, observed, though such information can form basis for an examination/investigation by the Assessing Officer, but the decision to reopen the assessment has to be of the Assessing Officer and not of the third party. The Assessing Officer cannot merely do a cut and paste job for reopening the assessment without independent application of mind or verification or investigation. The aforesaid ratio laid down by Hon ble jurisdictional High court squarely applies to the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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