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TMI Blog2024 (10) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... bution would have arisen, the aforesaid findings clearly pale into insignificance. Insofar as the other findings, to which our attention was drawn by Mr. Kumar, we note that the AO had itself found that the work of Pepsico, Jainpur project was one which was awarded to KIPL and that the respondent-assessee had only affected certain supplies. On the basis of the aforesaid and bearing in mind the principles with respect to DAPE which were enunciated by us in Progress Rail Locomotive Inc [ 2024 (5) TMI 1417 - DELHI HIGH COURT] we find that appeal fails to raise any substantial questions of law. - HON'BLE MR. JUSTICE YASHWANT VARMA AND HON'BLE MR. JUSTICE RAVINDER DUDEJA For the Appellant Through: Mr. Sanjay Kumar and Ms. Easha, Advoca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent on the ground of a Dependent Agent PE [ DAPE ] being found to exist in India. In view of the aforesaid, it chose not to answer the question of whether the AO was correct in assuming that a Fixed Place PE existed. 3. The respondent-assessee had assailed the aforesaid order rendered by the CIT(A) and which has led to the passing of the order impugned before us. Although the appellant calls upon us to also examine the aspect of whether a Fixed Place PE existed, we find that no arguments on that score appear to have been addressed before the Tribunal. The appellant is also not shown to have filed any cross-objections seeking to agitate that issue before the Tribunal. The question with respect to a Fixed Place PE, thus cannot be sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he supplies in respect of the instant installation and commissioning has been made by Krones AG. Here, it is important to point out that PE includes construction site and installation project. For a subsidiary/ subcontractor undertaking the installation and commissioning of the contracts, the presence or the absence of PE can only be ensured if the PE is not instrumental in performance of contracts which are outside its purview (such as offshore supplies and services). In the instant case, the services of installation and commissioning are performed by KIPL. These services are instrumental and essential to the core for the successful completion of the contract. 6. As is manifest from the above, the AO had found that for the completion of va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee. Supplies are made on CIF basis by the assessee directly to the customers who bore the responsibility with respect to clearing, forwarding, loading and unloading, transportation and insurance. 20. KIPL is only required to coordinate KIPL the delivery and payment with the customer as part of its activities with respect to the order, for which it gets the commission. His allegation that KIPL habitually secures and concludes orders on behalf of the assessee is factually is incorrect. In our understanding of the facts, mere undertaking marketing by meeting customers by one enterprise does not constitute habitually securing and concluding order on behalf of the other enterprise. 21. In our considered opinion, for an enterprise to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue is based on erroneous facts. xxxx xxxx xxxx 32. Considering the facts in totality, we are of the considered view that the observations made in the TP Study Report of KIPL regarding scope of its business activities do not result in holding KIPL as DAPE of the assessee and further, since KIPL has been remunerated by the assessee for commission activities on arm's length basis, no further attribution is required in lieu of law laid down by the Hon'ble Supreme Court in the case of Morgan Stanley 292 ITR 416. 10. On the basis of the aforesaid and bearing in mind the principles with respect to DAPE which were enunciated by us in Progress Rail Locomotive Inc. vs. Deputy Commissioner of Income Tax (International Taxation) and Ors. [2024 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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