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2024 (1) TMI 1405

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..... or the Appellant: Sh. Ravi Sharma, Adv. Ms. Saloni Shital, Adv For the Respondent: Ms. Banita Devi Naorem, CIT-DR ORDER PER SAKTIJIT DEY, VP, The captioned appeals by the assessee are against the final assessment orders passed in pursuance to directions of the Dispute Resolution Panel (in short DRP) pertaining to Assessment Years 2016-17 and 2020-21. 2. Ground No.3 in ITA No.737/Del/2023 is not pressed, hence dismissed. 3. The only issue arising in these appeals is relating to existence or otherwise of a Permanent Establishment (PE) of the assessee in India. 4. We have considered rival submissions and perused the material available on record. It is an agreed position before us that the assessee is squarely covered by the decision of the Coo .....

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..... blind eye to all the submissions and facts brought on record by the assessee. Merely following the decision taken by the appellate authorities and Hon ble High Court in past assessment years, the departmental authorities have concluded the existence of PE without looking into or examining the facts and evidences brought on record, which are very much relevant for deciding the existence of PE in the impugned assessment years. It is observed, while deciding identical issue in case of Nuovo Pignone International SRL Vs. DCIT (supra) involving identical facts, the Coordinate Bench has held as under: 10. We have considered rival submissions and perused materials on record. We have also applied our mind to the judicial precedents cited before us. .....

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..... t that AIFACS building has been vacated, no expatriates visited India during the year and the liaison office has been closed were brought to the notice of the departmental authorities in course of proceedings to demonstrate that the reasons for which the departmental authorities as well as the Tribunal and Hon ble jurisdictional High Court held existence of PE, no longer exists in the impugned assessment year. 12. This is clearly evident from the submissions made and documents filed before the departmental authorities. Despite such submissions and evidences produced by the assessee, the departmental authorities have remained oblivious to such facts and materials brought on record and proceeded to conclude existence of PE merely relying upon .....

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..... stence 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 f .....

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..... peculiar to the impugned assessment year, it has to be concluded that the assessee did not have any PE, either fixed place PE or dependent agent PE, in India in the year under consideration. We again reiterate, our aforesaid conclusion is purely based on the facts involved in the impugned assessment year. 7. Akin to the case referred to above, in the facts of the present appeals also, the departmental authorities have failed to controvert either the submission or the materials and evidences brought on record by the assessees 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 .....

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