Section 163 agency test failed where control, salary burden, and permanent establishment were not established.

A non-resident assessee could not be treated as an agent of expatriate technicians or A.P. Moller Maersk A/S under section 163 because the statutory conditions were not met. The Tribunal relied on its earlier decision on identical facts, noting that the crew supply arrangement was routed through a group company, the salary burden was not borne by the assessee, no permanent establishment in India was shown, and the department failed to establish employment or sufficient control. Applying the principle of consistency, the earlier view was followed and the Revenue's challenge failed.

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Issues: Whether the assessee could be treated as an agent of the 13 technicians and of A.P. Moller Maersk A/S under section 163 of the Income-tax Act, 1961.

Analysis: The issue was covered by the Tribunal's earlier decision in the assessee's own case on identical facts. It was held there that the statutory conditions for treating the non-resident assessee as an agent of the expatriate personnel were not satisfied. The arrangement for supply of crew was through a group company, the salary burden was not borne by the assessee, the assessee had no permanent establishment in India, and the department failed to establish that the assessee was the employer or that it exercised such control as to attract section 163. The principle of consistency required following the earlier decision on the same facts.

Conclusion: The assessee could not be treated as an agent under section 163, and the Revenue's challenge failed.

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