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TMI Blog2023 (11) TMI 434X X X X Extracts X X X X X X X X Extracts X X X X ..... ned any office or branch in India. 6. The firm services several multinational clients not only in the UK but in respect of the client's needs around the world. 7. During the year ended March 31, 2005, the firm has provided professional service to certain clients whose operations extended to India. This was largely serviced by the partners and staff in the UK 8. No office or place of work was established by the firm in India. All expenses of travel and stay at hotels and incidentals were borne by the clients. 9. On the basis of the above facts, it is submitted that no income is chargeable to tax in India as the firm has no permanent establishment in India." 3. Without prejudice, an Income and Expenditure Account reflecting the profits attributable to the operations carried out in India was submitted. DDIT(IT), 4(1), Mumbai ("AO") passed an assessment order dated 27.12.2007 u/s. 143(3) of the Act holding that the assessee had a PE in India in terms of article 5(2)(k) of the India-UK DTAA and, accordingly, he assessed income of the assessee as follows: Fees for work done in India GBP 3,00,491.52 Fees for work done outside India GBP 19,31,057.45 Towards disbursements ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be heard together. The Hon'ble High Court has clarified that all contentions are left open. Accordingly, both appeals were heard together by the bench. 7. First we proceed to dispose of the appeal of the assessee in ITA.No. 3280/MUM/2008. 8. Assessee has raised following grounds in its appeal: - "1. The learned Commissioner (Appeals) erred in holding that the appellant has a permanent establishment in India under Article 5(2)(k) of the Tax Treaty between India and the U.K 2. Without prejudice, the learned Commissioner (Appeals) ought to have specifically directed the Assessing Officer to assess the appellant only in respect of fees of GBP 300,491 55, which were relatable to work performed in India. 3 The learned Commissioner (Appeals) erred in upholding the action of the Assessing Officer in treating disbursements as part of income of the appellant. 4. Without prejudice to ground 3 above, the learned Commissioner (Appeals) erred in confirming the disallowance in respect of disbursement to the extent of 15% of the disbursement claim proportionate to the fee relating to services rendered in India as compared to the total fees. The Commissioner (Appeals) ought to have e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties in connection therewith, where such site, project or supervisory activity continues for a period of more than six months, or where such project or supervisory activity, being incidental to the sale of machinery or equipment, continues for a period not exceeding six months and the charges payable for the project or supervisory activity exceed 10 per cent of the sale price of the machinery and equipment; (k) the furnishing of services including managerial services, other than those taxable under Article 13 (Royalties and fees for technical services), within a Contracting State by an enterprise through employees or other personnel, but only if: i. activities of that nature continue within that State for a period or periods aggregating more than 90 days within any twelve-month period; or ii. services are performed within that State for an enterprise within the meaning of paragraph (1) of Article 10 (Associated enterprises) and continue for a period or periods aggregating more than 30 days within any twelve-month period. Provided that for the purposes of this paragraph an enterprise shall be deemed to have a permanent establishment in a Contracting State and to carry on bus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a branch, an office, a factory, a workshop, premises used as a sales outlet or for receiving or soliciting orders, a warehouse, a mine, an oil or gas well, quarry, an installation or structure, a building site or construction, installation or assembly project, which all allude to physical places of business. Therefore, the fundamental requirement in article 5(1), namely, that a fixed place of business should exist is elucidated by the illustrations given in article 5(2). The question which arises is whether the said fundamental requirement of there being a fixed place of business is done away with in article 5(2)(k). It is submitted that this is not so and for a foreign enterprise to have a PE in India under article 5(2)(k), mere rendering of services for the stated period is not sufficient and a PE comes into existence only if the requirement of article 5(1), namely, a fixed place of business, is satisfied. In other words, article 5(1) has to be read along with article 5(2) and article 5(2) cannot be read in isolation. To hold otherwise would be to read an artificial distinction between various illustrations given in article 5(2). It is submitted that a plain reading of the cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m visited India only on as and when required basis. The activities of the assessee were claimed to be sporadic or isolated. The stand of the assessee thus was that there was no framework or infrastructure, no continuity and no stability so as to result in a permanent establishment. Learned senior counsel has also filed extracts from Prof. Klaus Vogel's oft quoted treatise 'Klaus Vogel on Double Taxation Conventions, and referred to his observations at page 295 to the effect that '[article 5(2) gives substance to the general permanent establishment concept, that '[w]hat must be particularly examined in each case is whether the place of business satisfies the permanence criterion' and that [t]he opening sentence of article 5(2) shows that the list that follows is one of the examples and not exhaustive ('specially). Our attention is then invited to paragraph 12 of OECD Model Convention Commentary which, inter alia, observes that, article 5(2) "contains a list, by no means exhaustive, of examples, each of which can be regarded, prima facie, constituting a permanent establishment" and that "[a]s these examples are to be seen against the background of general defi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exists Learned Commissioner contends that the provisions of article 5(2) and article 5(1) are not be read together, nor does article 5(1) restrict the application of article 5(2)In case, one is to proceed on the basis that a permanent establishment under article 5(2)(k) can come into existence only when conditions of article 5(1) are also to be satisfied, article 5(2)(k) will be rendered redundant. Under article 5(2)(k) if services to an associated enterprise are rendered even for 30 days it will result in existence of the deemed PE. However, article 5(1) can come into play only when the assessee has a fixed place of business but once assessee has a fixed place of business, it is wholly irrelevant whether or not services are rendered for one day or for all the three hundred and sixty five days. It is thus submitted that in the case of article 5(2)(k) permanence test of the PE has been substituted by the duration test for services rendered. Once the duration test is satisfied, according to the learned Commissioner, permanence test visualized in article 5(1) does not come into play at all. We are thus urged to hold that section 5(2)(k) is to be decided on standalone basis, and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Joint Director of Income-tax 40 DTR 226 and after analysis of earlier decisions of this Tribunal in the cases of Western Union Financial Services Inc. v. Asstt. DIT [2007] 104 ITD 34(Delhi) and Motorola Inc. v. Dy. CIT [2005] 95 ITD 269 (Delhi) (SB), has observed that, "There are three criterions embedded in this definition - physical criterion i.e., existence of physical location, subjective criterion, i.e., right to use that place, functionality criterion, i.e., carrying out of business though that place. It is only when these three conditions are satisfied, a PE under the basic rule can be said to have come into existence" 89. Article 5(2), however, consists of two heterogeneous categories of permanent establishments. The first category consists of illustrations of what would constitute a PE, even under the basic rule, and the second category consists of, what can be termed as, extensions of the basic rule and deemed permanent establishments. While clauses (a) to (i) of article 5(2), in our humble understanding, form part of the former category, ie, illustrative of the basic rule, clauses (j) and (k), as we understand, form part of the second category, i.e.. extensions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss through which the business of an enterprise is wholly or partly carried on. (2) The term "permanent establishment" includes especially- (a)a place of management; (b)a branch: (c)an office; (d)a factory: (e)a workshop; and (famine, an oil or gas well, a quarry, or any other place of extraction of natural resources. (3) A building site or construction or installation project, or an installation or drilling rig or ship used for the exploration of natural resources, constitutes a permanent establishment only if it lasts, or the exploration activity continues for more than twelve months." 90. A plain reading of article 5(2) of India-UK tax treaty, in the light of the above discussions, clearly shows article 5(2) of India-UK tax treaty is a mixture of what is usually contained in article 5(2) and article 5(3) in all major model conventions i.e.. UN Model Convention, OECD Model Convention an US Model Convention. The clauses consisting in article 5(2) of India- UK tax treaty are, therefore, not homogeneous and these clauses do not belong to the same genus. One cannot therefore proceed on the basis, as has been urged by the learned senior counsel for the assessee, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tablishment. We are in considered agreement with this analysis in OECD Model Convention Commentary, and for this reason, we are unable to approve learned counsel's argument that article 5(2) of India- UK tax treaty only provides examples of situations covered by article 5 (1). 92. UN Model Convention Commentary, dealing with article 5(3) which is in parimateria with article 5(2)(j) and (k) of India-UK tax treaty, makes the position even more clear by observing, inter alia, as follows. "Article 5. paragraph 3. sub-paragraph (b), deals with the furnishing of services, including consultancy services, which are not covered specifically in the OECD Model Convention in connection with the concept of permanent establishment." [Emphasis supplied] 93. According to this analysis in the UN Model Convention Commentary, and with which we are in considered agreement, article 5(3)(b) of UN Model Convention, which is materially similar to the provisions of article 5(2)(k) of India-UK tax treaty, extends to the areas not covered by the OECD Model Convention. Obviously, a permanent establishment under basic rule cannot be said to be not covered by the OECD Model Convention According to the U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tates interpret the items listed, a place of management, a branch', 'an office' etc., in such a way that such places constitute permanent establishment only if they meet the requirement of paragraph 1. This argument may run contrary to the well-established principle of statutory interpretation that an inclusive definition is intended to add to primary meaning so as to bring within its scope items which may or may not fall within the scope of the primary definition. That apart, even assuming, at best, that the inclusion clause is to be interpreted 'against the background of the general definition contained in paragraph 1 and bear some analogy to it, all that can be said is that sporadic and isolated activities, referred to in clause (1), will not be sufficient to constitute PE and that there should be some degree of 'continuity or 'durability and a framework against which the services are rendered. That kind of framework and degree of stability is present here. It must, therefore, be held that XYZ has a PE in India." [Emphasis supplied] 96. We are in considered and respectful agreement with the legal proposition so laid down by the Hon'ble Authority for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in the case of Formula One World Championship Ltd. vs. CIT(IT)-3, Delhi [2017] 394 ITR 80. The Hon'ble Supreme Court, while dealing with the provisions of article 5 of the India-UK DTAA, has been pleased to hold as under: "66. As per Article 5 of the DTAA, the PE has to be a fixed place of business 'through' which business of an enterprise is wholly or partly carried on. Some examples of fixed place are given in Article 5(2), by way of an inclusion. Article 5(3), on the other hand, excludes certain places which would not be treated as PE, i.e, what is mentioned in clauses (a) to (f) as the 'negative list. A combined reading of sub-articles (1), (2) and (3) of Article 5 would clearly show that only certain forms of establishment are excluded as mentioned in Article 5(3), which would not be PEs. Otherwise, sub-article (2) uses the word 'include' which means that not only the places specified therein are to be treated as PEs, the list of such PEs is not exhaustive. In order to bring any other establishment which is not specifically mentioned, the requirements laid down in sub-article (1) are to be satisfied. Twin conditions which need to be satisfied are: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and controlled from this office. Therefore, this office constitutes PE in terms of article 5(1), 5(2)(a) and 5(2)(c). On the other hand, the submission of the ld. counsel is that there is no fact on record to show that the business of the assessee was wholly or partly carried on from this office. Further, there is no evidence that the activities of the rig were managed from this office. There is also no evidence to show as to whether it was only an address given in the agreement for correspondence with Saipem SA or an office from which business activities were carried on. In this connection, our attention has been drawn towards paragraph numbers 11, 12, 36 and 37 of the OECD commentary. According to paragraph No. 11, activities to prepare the fixed place for conducting business is to be excluded. According to paragraph 12, various illustrations given in paragraph 5(2) have to be seen in the background of general definition given in paragraph 1. This means that it is to be examined whether the business of the assessee was partly or wholly carried on from the place of management or the office, Paragraph 36 excludes preparatory and auxiliary activities from the main activity of car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , wherever it was desired that the provisions of article 5(2) would apply independent of article 5(1), a specific provision has been made in the DTAA itself. Except in such cases, the general rule that article 5(2) has to be read with article 5(1) would apply. During the hearing, the Hon'ble Bench was pleased to point out that other clauses of article 5(2) allude to the presence of a physical place, whereas article 5(2)(k) refers to furnishing of services. It is respectfully submitted that this cannot mean that the satisfaction of requirements of article 5(1) have been done away with in article 5(2)(k). It is submitted that wherever income from rendering of services was sought to be brought to tax without the existence of a fixed place of business, specific provisions have been made in the DTAA. For instance, articles 15 to 23 of the India-UK DTAA. Without prejudice, in the event it is held that the assessee has a PE in India, the other grounds raised in the assessee's appeal as well as Revenue's appeals would have to be decided. During the course of the hearing, charts summarising the said grounds was tendered, which show that all grounds of appeal are concluded by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of permanent establishment wherein it was held that assessee's permanent establishment exists in India under Article 5(2)(k) of the DTAA. The coordinate bench has elaborately discussed the Article 5 and its sub Articles 5(1), 5(2) and 5(3) of the Indo-UK Treaty. They came to the conclusion by bringing on record the relevant clauses of the treaty, by also discussing the other model conventions like OECD, UN along with its commentaries. They held that the Article 5(2) is no more than an illustration or examples of application of permanent establishment under basic rule under Article 5(1). However, so far as the provisions of India - UK tax treaty are concerned, the clauses (j) and (k) of Article 5(2), which are on the lines of provisions in Article 5(3) in all most standard model conventions. Therefore, they rejected the earlier submissions of the assessee that unlike the applicability of basic rule are in consonance with the illustrations contained in Article 5(2)(a) to (i) and even the clauses (j) and (k) has to pass the test of basic rule. However, now Ld.AR made elaborate further submissions by relying on Hon'ble Supreme court decision and coordinate bench decisions in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s state that the second paragraph of model conventions, " it contains a list, by no means exhaustive, of examples, each of which can be regarded, prima facie, constituting a permanent establishment", and that "as these examples are to be seen against the background of general definition given in paragraph 1, it is assumed that the contracting states interpret the items listed, 'a place of management', 'a branch', 'an office' etc in such a way that such places constitute permanent establishment only if they meet the requirement of paragraph 1". Even by the OECD Model Convention Commentaries, however, this theory is not extended to the items in second category i.e. (j) and (k). So far as paragraph 3 of the OECD Model Conventions dealing with these items are concerned, OCED Model Convention Commentary states as follows: "This paragraph provides expressly that a building site or construction or installation project constitutes a permanent establishment only if it lasts more than twelve months. Any of those items which does not meet this condition does not of itself constitute a permanent establishment, even if there is within it an installation, for instance an office or a workshop w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned senior counsel is perhaps quite right to the extent that Article 5(2), as in most standard model conventions, is no more than an illustration or examples of application of permanent establishment under basic rule i.e. under Article 5(1). However, so far as the provisions of India UK tax treaty are concerned, for the detailed reasons set out above, these arguments do not hold good in respect of clause (j) and (k) of Article 5(2), which are on the lines of provisions in Article 5(3) in all most standard model conventions. For this reason, we also reject learned counsel's reliance on the OECD Model Convention Commentary and Prof Klaus Vogel's analysis. His reliance on these commentaries are misplaced as the provisions these commentaries have dealt with are not in pari materia with the tax treaty provisions that we are in seisin of. 95. We may also add that similar argument, materially similar to the argument raised by the assessee before us and in respect of materially similar treaty provision, also came up for consideration before Hon'ble Authority for Advance Ruling in the case of XYZ In Re (242 ITR 208). Rejecting this plea, Hon'ble Justice Ranganathan, Chairman ‐ AAR, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly distinct from the tax treaty provisions of Article 5(2) which came up for consideration before the AAR and before us], Hon'ble Authority for Advance Ruling reached the same conclusions. On the basis of the line of reasoning adopted by the AAR also, we reject the contention of the assessee. 97. Let us once again take a look at Article 5(2)(k) and further analyze its scope and purpose. It provides that the term 'permanent establishment' shall include specially the furnishing of services including managerial services within Contracting State by an enterprise through employees or other personnel, where such activities are rendered for more than 90 days for any enterprises, or for more than 30 days for an associated enterprise, within any twelve month period. The only exclusion clause envisaged from the services so furnished is when the consideration for such services is taxable in the source jurisdiction under Article 13. In order to invoke this provision, all that is needed is that (a) a resident of other contracting state furnishes services - for more than 90 days, within any twelve month period, for any enterprises [excluding an associated enterprises within the meanings of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essional services. A treaty, as we have see in detailed analysis of principles of interpretation of tax treaties earlier in this order, is to be interpreted in good faith on the basis of general expectations of the parties and in accordance with the ordinary meaning given to the treaty in the context and in the light of its objects and purpose. The interpretation canvassed by the learned counsel does not fit into this approach to treaty interpretation. 102. In any event, one cannot interpret a tax treaty, or for that purpose even a tax legislation, with dictionary in one hand and tax treaty in another. As Justice Hand has observed in the context of interpreting tax law, which is even more relevant in the context of interpreting a tax treaty, "it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning". And object and purpose of Article 5(2)(k) is unambiguously set out in UN Model Convention Commentary which, dealing with Article 5(3)(b), which is in pari materia wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 5(1). Hence, the case law relied by the assessee are in a way not applicable to the present case. 15. Coming to the another decision relied by the assessee in the case of R&B Falcon Offshore Ltd. v. Addl CIT (supra), the ITAT Delhi bench has dealt with the issue of Article 5(2)(j) of the Indo - US DTAA, wherein the issue was that a Non-resident company which owned a rig arrived in India, due to some repairs to be undertaken before such rig was to be used in India. The issue was whether the period used to repair the rig before installation to be considered for the limitation period of more than 120 days or not, was the issue. It was not the issue whether the placement of the rig in India for which Article 5(2)(j) are applicable or not. Further, the issue dealt by the ITAT Delhi bench relating to Indo - US DTAA whereas the application of Article 5(2)(k) in the case of assessee is Indo - UK DTAA, and it is dealt elaborately in the case of assessee's own case by the Coordinate Bench. Therefore, it is distinguishable to the facts of the present case. 16. As discussed above, the issue involved in this case is already considered by the Coordinate Bench elaborately in the above paragr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessable under the Act. Both the parties admitted that the Tribunal has considered identical issue in AY 1995-96 and has held that the entire profits directly or indirectly attributable to the Permanent Establishment is assessable and accordingly upheld the order of the assessing officer in that year. However, the Ld A.R submitted that the Special bench of Tribunal has considered an identical issue in the case of CIT Vs. Clifford Chance (143 ITD 1), wherein the issue has been decided in favour of the assessee. Accordingly he submitted that the order of the Ld CIT(A) on this issue should be upheld. We agree with the contentions of Ld A.R. Since the decision of Special bench is binding on us, we direct the assessing officer to assess the income in accordance with the decision rendered by the Special Bench in the above cited case. Accordingly, we reject the ground urged by the revenue on this issue" 4. In the result, the miscellaneous application filed by the assessee is allowed." 20. Further, the Coordinate Bench in assessee's own case for the A.Y.2003-04 in ITA.No. 1532/Mum/2007 held as under: - "12. Ground No.1: In this ground, the Revenue is aggrieved with the action of Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ands dismissed. 13.2. Respectfully following the aforesaid order and order of the Hon'ble Special Bench in the case of Clifford Chance, (supra), It is held that the only income in respect of services rendered in India, which are attributable to PE only, would be taxable in India. Thus, ground no. raised by the Revenue stands dismissed." 21. Respectfully following the above decision and following the principle of consistency, the view taken by the Coordinate Bench in A.Y.1997-98 and A.Y. 2003-04 is respectfully followed, ground raised by the assessee is accordingly allowed. 22. With regard to, Ground Nos. 3 and 4 which are in respect of Ld.CIT(A) treating the reimbursement of expenses as an income. Ld. AR of the assessee brought to our notice that the issue in appeal has been considered by the Co-ordinate Bench of this Tribunal and decided the issue in favour of the assessee and against the department. He brought to notice during the A.Y. 1995-96 in assessee's own case ITAT has held that reimbursement of expenses cannot be treated as income of the assessee. This has been accepted by the revenue and no appeal is filed before the Hon'ble High Court against this ground. Further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under: - "5. Ground Nos. 3 & 4: In these grounds, the assessee has challenged the action of Ld. CIT(A) in holding the action of the AO in treating reimbursement of the expenses as part of the income of the assessee. During the course of hearing, Ld. Counsel has submitted that identical issue was involved in the earlier years and the same has been decided in favour of the assessee in the various orders passed by the Tribunal, particulars of which have already been given in ground no.1 above. 5.1. On the other hand, Ld. DR has supported the orders of the lower authorities. 5.2. We have gone through the submissions made by both the sides and lower authorities and order passed by the Tribunal in earlier years. We find it appropriate to produce relevant para from the order of the Tribunal dated 7th September 2015. 12. As regards the issues raised in ground no. 5 & 6 to 'reimbursement of expenses' which has been considered as 'income', by the revenue authorities, it has been submitted by the Ld. Senior Counsel that, this issue has been decided in favour of the assessee from the AYs 1995-96 to 1997-98, the relevant observation by the Tribunal in AY 1995-96 are as under :- "133. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd against the department. He brought to our notice the order of the Tribunal in assessee's own case for the A.Y. 1997-98 in ITA.No.1711/Mum/2004 dated 08.08.2014 copy of the order is placed on record. 28. On the other hand, Ld. DR has fairly accepted the submissions of the Ld.AR. 29. Considered the submissions and material placed on record, we observe from the record that identical issue is decided in favour of the assessee for the A.Y. 1995-96. While deciding the issue, the Coordinate Bench of the Tribunal in ITA.No. 4896/Mum/2003 dated 16.07.2010 held as under: - "136. In the appeal filed by the Assessing Officer, a grievance has been raised against CIT(A)'s holding that, interest u/s 234B of the Act was not chargeable in the case of assessee, as all sums chargeable to tax in the hands of the assessee are liable to deduction of tax at source u/s 195 of the Act. 137. Learned representatives fairly agree that the issue is now covered in favour of the assessee by a large number of decisions of the Tribunal, including Special Bench decision in the case of Motorola Inc Vs DCIT (95 ITD SB 269) which has since been approved by the Hon'ble jurisdictional High Court in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of Ld CIT(A) on this issue." 31. Respectfully following the above decision and following the principle of consistency, the view taken by the Coordinate Bench in A.Y.1995-96 and A.Y. 1997-98 is respectfully followed, ground raised by the assessee is accordingly allowed. 32. With regard to Ground No. 6 as we have allowed Ground No. 5 raised by the assessee by deleting the interest levied u/s. 234B of the Act, this ground raised before us becomes infructuous. Accordingly, this ground is not adjudicated as infructuous. 33. With regard to Ground No. 7 and 8 which are in respect of Assessing Officer erred in holding that the assessee was liable to tax in India under Article 15 of the tax Treaty between India and the U.K. Ld.AR of the assessee submitted that Ld.CIT(A) ought to have appreciated that Article 15 was applicable only to individuals and was not applicable to the case of the assessee. Ld. AR of the assessee brought to our notice that the issue in appeal has been considered by the Co-ordinate Bench of this Tribunal and decided the issue in favour of the assessee and against the department. He brought to notice the order of the Tribunal in assessee's own case for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for any nil deduction at source or lower deduction at source, directing the Assessing Officer to delete the interest charged under section 234B of the Act. 4. The appellant prays that the order of the Ld.CIT(A), Mumbai on the above grounds be set aside and the order of the Assessing Officer be restored. 5. The appellant craves leave to amend or alter any ground or add a new ground which may be necessary." 39. Ground No. 1 of grounds of appeal raised by the revenue is similar to Ground No. 2 raised by the assessee for the A.Y. 2005-06 and the decision taken therein shall apply mutatis-mutandis. Accordingly, ground No.1 raised by the revenue is dismissed. 40. Ground No. 2 of grounds of appeal raised by the revenue is similar to Ground No. 3 & 4 raised by the assessee for the A.Y. 2005-06 and the decision taken therein shall apply mutatis-mutandis. Accordingly, ground No.2 raised by the revenue is dismissed. 41. Ground No. 3 of grounds of appeal raised by the revenue is similar to Ground No. 5 raised by the assessee for the A.Y. 2005-06 and the decision taken therein shall apply mutatis-mutandis. Accordingly, ground No.3 raised by the revenue is dismissed. 42. Ground Nos. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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