TaxTMI 
TaxTMI 
2012 (4) TMI 193
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....ndia as well as abroad. The major clients of the assessee company in India are Government of India, BSNL, MTNL, Railways, GAIL and Power Grid, etc. On the global front, the assessee has executing turnkey/consultancy projects in many countries in Africa and Middle East besides South and South East Asian and CIS Countries. 3. The main issue involved in all these appeals is regarding the taxability in India of income earned in a foreign country by the assessee who is a resident of India. In the assessment year 2000-01, the assessee has also challenged the reopening of assessment u/s 147 /148 of the Income-tax Act. The grounds of appeal in ITA No.1293/Del/2009 for assessment year 2000- 01 read as under :- "1. That on the facts and circumstances of the case and in law, the Learned Commissioner of Income Tax (Appeals) - XIX ("CIT (Appeals)") has erred in confirming the action of the Additional Commissioner of Income Tax, Range- 16, New Delhi ("Assessing Officer") 148 of the Income Tax Act, 1961 ("Act") that the reopening of assessment was in accordance with the provisions of Section 147 /148 of the Income-tax Act, 1961 ("Act"). 1.1 That on the facts of the case and in law, the L....
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....e of Double Taxation and the Prevention of Fiscal Evasion with respect to taxes on income. 7. That on the facts of the case and in law, the orders passed by the Learned CIT (Appeals) and the Assessing Officer are bad in law and void-ab-initio. 4. The return of income for the year 2000-01 was filed on 29.11.2000 declaring income at Rs. 17,86,33,080/- under the normal provisions of the Income-tax Act and Rs. 19,11,37,820/- computed as 30% of the book profits under the provisions of section 115JA. Subsequently, the return was revised on 05.03.2002. The case was selected for scrutiny and the order u/s 143(3) passed on 12.03.2003 determining the income at Rs. 21,28,33,925/- under normal provisions of the Act which was higher than the 30% of the book profit as per the provisions of section 115JA which worked out at Rs. 20,44,03,265/-. Against that order, the assessee had preferred the appeal. CIT (A) passed the order u/s 250 on 23.07.2003 and deleted certain additions and income was assessed at Rs. 17,51,57,580/- under normal provisions and Rs. 19,31,00,360/- under section 115JA of the Act after appeal effect. Subsequently, a notice u/s 148 was issued for reassessment. In response ....
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....e of Rs. 32 crores only. Thus, there was a minor difference in the provision made and deduction claimed. The shortage had been made good in subsequent years. Further, the learned AR also pleaded that the return of income was accompanied with the supporting documents. All the material facts required were disclosed fully and truly. The reopening is after four years, therefore, the assessment was not liable to be reopened unless there was a failure on the part of the assessee to disclose the primary facts and Ld. AR also relied on the following case laws :- (i) ICICI Bank Ltd. v. Rao & Anr. - 268 ITR 203 (Bom.); (ii) Ajay Oxycholoride Floorings v. Iyer, ACIT & Ors. - 155 Taxman 306 (Bom.); (iii) Hindustan Lever Ltd. v. ACIT & Ors. - 268 ITR 332 (Bom.); (iv) ACIT v. Vindhya Telelinks Ltd. - 107 TTJ 149 (Jab.)(TM); and (v) CIT v. Shri Tirath Ram Ahuja (HUF) - 306 ITR 173 (Delhi). Ld. AR also relied on the following decisions where reopening was held to be invalid on the basis of change of opinion :- (i) Idea Cellular Ltd. v. DCIT & Ors. - 215 CTR 288 (Bom); (ii) Garden Silk Mills Pvt. Ltd. v. DCIT - 237 ITR 668, (Guj.); ....
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....egarding the same income. Further, even after the proceedings under Section 154 of the Act were concluded, issuance of a notice under Section 148 of the Act would be based on a change of opinion and would therefore be bad in law." 5. On the other hand, the learned DR submitted that the assessee is a public sector undertaking engaged in the business of full range of consultancy, design and engineering services in all fields of telecommunication in India as well as abroad. The original return of income was filed on 29.11.2000 declaring income at Rs. 17,86,33,080/- under normal provisions of IT Act and Rs. 19,11,37,820 u/s 115J. In revised return filed on 05-03-2002, income declared was Rs. 17,51,57,580 under normal provisions and Rs. 19,00,95,167 u/s 115J. In order u/s 143(3) dated 12-03-2003, total income was determined at Rs. 21,28,33,925 under normal provisions and Rs. 20,44,03,265 u/s 115J. CIT(A) vide his order dated 23-07-2003 deleted certain disallowances made by AO and in appeal effect order, income was computed at Rs. 17,51,57,580 under normal provisions and Rs. 19,31,00,360 u/s 115J. Vide notice u/s 148 dated 30-03-2007, reassessment proceedings were initiated. In respon....
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....ons including following :- (i) Indo-Aden Salt Manufacturing and Trading Co. v. CIT 159 ITR 624 (SC) (ii) ITO v. Lakhmani Mewal Das 103 ITR 437 (SC) (iii) Malegaon Electricity Co. P. Ltd. v. CIT 78 ITR 466 (SC) 5.2 Ld. DR further pleaded that as per Explanation (e) given below 80HHC(3), indirect cost means costs, not being direct costs, allocated in the ratio of the export turnover in respect of trading goods to the total turnover. It was seen that the assessee has not worked out indirect cost in this manner. 5.3 For claim of deduction u/s 80HHB, the contention of assessee is that shortfall in credit of foreign project reserve account has been made good in the subsequent year. This argument is of no help because assessee has to meet with prescribed requirements during the period under consideration. Clearly, AO has wrongly allowed claim u/s 80HHB during assessment u/s 143(3). 5.4 On both the grounds of 80HHC and 80HHB, the AO has allowed deductions in original assessment u/s 143(3) by wrongly applying the provisions of relevant law. In such a situation, it can not be said that the AO has subsequently initiated re-opening proceeding on the basis of....
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.... for computation of deduction available to the assessee which has not been furnished by the assessee. Therefore, the provisions contained in Explanation 1 to section 147, the production of books of accounts does not exonerate the assessee even if AO could have found the relevant facts by exercising due diligence. This proposition has been held by various courts including the following :- (i) Indo-Aden Salt Manufacturing and Trading Co. v. CIT 159 ITR 624 (SC) (ii) ITO v. Lakhmani Mewal Das 103 ITR 437 (SC) (iii) Malegaon Electricity Co. P. Ltd. v. CIT 78 ITR 466 (SC) The Explanation (e) for the purposes of sub-section 80HHC(3) defines the indirect cost as follows :- "indirect costs means costs, not being direct costs, allocated in the ratio of the export turnover in respect of trading goods to the total turnover" The assessee had not worked out interest cost in this manner. Further, the assessee has claimed deduction u/s 80HHB for Rs. 32,08,02,147/-. The assessee has credited to foreign project reserve account of Rs. 32 crores only. The provisions of section 80HHB (3) provides such conditions which are to be fulfilled for claiming the deduction u....
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.... stage. Existence of belief can be challenged by assessee but not the sufficiency of the reasons to belief. This view had been upheld in the various decision of Hon'ble Supreme Court including in the cases of Raymonds Woolen Mills v. ITO 236 ITR 34 (SC) and S. Narayanappa v. CIT 63 ITR 219 (SC). Considering to the totality of facts and circumstances of the case, we sustain the order of the CIT (A) on the issue of reopening of the assessment. 7. In the ground no.2, the issue raised by the assessee is regarding confirming the action of Assessing Officer and extending the scope of enquiry during the course of reassessment proceedings by including the grounds not covered in the reassessment notice issued u/s 148 of the Income-tax Act which the assessee claimed has attained finality during the regular assessment. 8. We have heard both the sides on the issue and after hearing both the sides, we find that the Hon'ble Bombay High Court in the case of CIT v. Jet Airways (I) Ltd. in ITA No.1714 of 2009 and 1526 of 2008 has held that Assessing Officer can also assess other items of income which come to his notice during the reassessment proceedings. The Explanation 3 to section 147 inse....
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....ion and development of law; the latter makes law, rather, stagnant and stoic. A developing society needs developing legal notions." Circular No.189 dated January 30, 1976 states that tax officer may condone the genuine deficiencies subject to the same being made good by the assessee through creation of additional reserves in the current years book in which assessment is framed. Reliance is placed upon Supreme Court decision in the case of CIT v. Modi Spinning & Weaving Mills Co. Ltd. with the Circular No.189 dated 30th January, 1976 to substantiate that under the Act, where genuine deficiencies have been made good, deduction is to be allowed. Further, it is an incentive provision and such provisions should be interpreted liberally. It is also submitted that the Assessing Officer while passing the assessment order under section 147 read with section 143(3) should have taken into account the subsequent development of making good the deficiency in the next year. The same was intimated to him vide letter dated October 17, 2007. On that basis, the assessee prayed for allowing the claim of the assessee in toto. For this, learned AR also relied on the decision of Hon'ble Delhi High Cou....
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....cited by Ld. DR, are not applicable to the assessee's case. The assessee's reliance on the CBDT Circular No.189 dated 30.01.1976 is also of no help as the same was issued in respect of the development rebate. Similarly, the case laws relied upon by the assessee is also not applicable to the facts of assessee's case as the case of CIT v. Modi Spinning Weaving Mills Ltd., cited supra, is also related to the development rebate. The circular issued by the Board cannot be extrapolated and applied to the provisions of deduction u/s 80HHB. The facts of Marg Construction and Assam Roller Flour Mills, cited supra, are also at variance to the facts of assessee's case, hence not applicable to the assessee's case. 12. We have heard both the sides on the issue. The provisions of section 80HHB categorically provides that deduction under this section shall be allowed to the extent of least of the following amounts :- (a) 50% of profit from such project; (b) Amount credited by the assessee to foreign project reserve account; (c) Amount brought in India in convertible foreign exchange. It is also a trite law that each assessment year is a separate independent assess....
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....anceled by the bank. On January 13, 1978, the Government of India by issuing a public notice banned the import of crude oil. The rigours put by this public notice were, however, partially relaxed by issuing another public notice on February 22, 1978, to the effect that licenses issued prior to January 13, 1978, were to be treated as valid even though the imports were not covered by an irrevocable letter of credit but certain restrictions like selling the imported goods only to the Government or its agencies on specified rates or selling to non-Government parties only after obtaining requisite permission from the Government were also placed by the second Public Notice dated 22.02.1978. When the goods reached India they were confiscated by the customs authorities under the Customs Act and assessee was given an option either to pay reshipment expenses and fine or to pay for clearance of the goods. A personal penalty was imposed on the assessee. The assessee ought to pay the clearing charges as well as the penalty. The AO disallowed the deduction of penalty and interest thereon. The CIT (A) allowed the deduction of Rs. 4 lacs plus interest on the ground that expenditure incurred by the....
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....d as under :- "We are of view that this direction given by ITAT is unexceptionable. The AO has to first determine whether the assessee is maintaining separate books of a/c or not and then depending upon his conclusion, the AO would have to apply the law laid down u/s 80HHCof the act. Obviously, the AO will evaluate the books of a/c and determine how much of expenditure, direct and indirect, is attributable to export activities of the assessee." In the assessee's case, there is no mention of maintenance of separate books of account in assessment order and Assessing Officer has not seized with such situation. In the case of Glaxo Smithkline Asia P. Ltd. v. ACIT, cited supra, the ITAT has held that only those administrative expenses will be apportioned in ratio of export turnover to total turnover, which have relation with export business. Thus, in that case also, the ITAT has advocated the method of apportionment in ratio of export turnover to total turnover. In view of these facts, the Assessing Officer has correctly worked out indirect expenses as per Explanation (e) to section 80HHC (3) and rightly denied the deduction u/s 80HHC. 16. We have heard both the sides and after....
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....tered into at a political level and have several considerations as their basis. The main function of a Double Taxation Avoidance Agreement (DTAA) is essential for providing a bargain between two treaty countries as to the division of tax revenues between them in respect of income falling to be taxed in both jurisdictions. For this, Ld. AR relied on the decision of Union of India v. Azadi Bachao Andolan - 263 ITR 706 (SC). Ld. AR further pleaded that primary objective of the DTAA's entered into by India is avoidance of double taxation and not relief from double taxation. In this regard, the learned AR made a reference to the decision of ITAT in the case of Sivagami Holdings P. Ltd. v. ACIT - [2011] 10 ITR (Trib) 48 (Chennai) wherein the ITAT has held that the DTAA is entered into between the countries only for the limited purpose of avoiding the hardship of double taxation and if the income is not taxed in the Contracting State, the same should be taxed in India is an oversimplified statement on the whole regime of Double Taxation Avoidance Agreement. It is true that the prime motivating factor in developing the concept of Double Taxation Avoidance Agreement is the genuine hardship ....
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....e Apex Court in CIT v. P.V.A.L. Kulangandan Chettiar [2004] 267 ITR 654 (SC), it cannot be inferred that the reasons given by the Special Bench of Hon'ble ITAT were incorrect merely because the decision of the Hon'ble Tribunal was upheld by the Hon'ble Supreme Court for different reasons. In this regard, reference was made to the judgment in the case of DCIT v. Mideast India Ltd. [2009] 28 SOT 395 (ITAT) wherein it has been observed as below :- "The learned DR has also contended that although the final operative decision of the Special Bench of ITAT has been upheld by the Hon'ble Supreme Court, the reasoning given by the Hon'ble Supreme Court while affirming the said decision is entirely different from the reasoning given by the Special Bench of the Tribunal. However, as rightly submitted by the learned counsel for the assessee, a perusal of the judgment of the Hon'ble Apex Court shows that there is nothing contained therein to indicate that the reasons given by the Special Bench of ITAT to come to a conclusion as it did were disapproved by the Hon'ble Supreme Court or the same were found to be inappropriate or incorrect ... .In our opinion, the decision of Special Bench of IT A....
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....ance is placed on Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. - AIR 2011 SC 312. It is also submitted that reliance on Organisation for Economic Cooperation and Development's ('OECD') Commentary on Model Tax Convention has not been accepted by the Courts of India as having a precedent value. Referred to Ms. Pooja Bhatt v. DCIT [2008] 26 SOT 574 (lTAT) (pages 143-144 of Case Law Paper Book at Para 8 and 9) and CIT v. P. V.A.L. Kulangandan Chettiar [2004] 267 ITR 654 (SC) (Refer to page 672 of the judgment). The ruling of the Authority for Advance Ruling in the matter of S. Mohan v. DIT [2007] 294 ITR 177 (AAR) as adverted during the course of the hearing does not in any way support the contention of the Department since it has been observed in the ruling that the language of treaty provision in which the expression 'may be taxed' was used in Indo-Malaysia DTAA which was under consideration in the CIT v. P.V.A.L. Kulangandan Chettiar [2004] 2671TR 654 (SC) is not comparable to the language employed in Article 16(1) of Indo-Norway DTAA, which was the subject matter of the S. Mohan's ruling. It is further submitted that according to the provisions of Section 255 of th....
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.... state or to exempt the income taxed in source state. These two rules have been explained in para 19 of OECD commentary under the title taxation of income and capital read as under :- "19. For the purpose of eliminating double taxation, the Convention establishes two categories of rules. First, Articles 6 to 21 determine, with regard to different classes of income, the respective rights to tax of the State of source or situs and of the State of residence, and Article 22 does the same with regard to capital. In the case of a number of items of income and capital, an exclusive right to tax is conferred on one of the Contracting States. The other Contracting State is thereby prevented from taxing those items and double taxation is avoided. As a rule, this exclusive right to tax is conferred on the State of residence. In the case of other items of income and capital, the right to tax is not an exclusive one. As regards two classes of income (dividends and interest), although both States are given the right to tax, the amount of tax that may be imposed in the State of source is limited. Second, insofar as these provisions confer on the State of source or situs a full or limited right....
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....d sportsmen exercised in that State, irrespective of whether such income accrues to the artiste or sportsman himself or to another person (Article 17); - directors' fees paid by a company that is a resident of that State (Article 16); - remuneration in respect of an employment in the private sector, exercised in that State, unless the employee is present therein for a period not exceeding 183 days in any twelve month period commencing or ending in the fiscal year concerned and certain conditions are met; and remuneration in respect of an employment exercised aboard a ship or aircraft operated internationally or aboard a boat, if the place of effective management of the enterprise is situated in that State (Article 15); - subject to certain conditions, remuneration and pensions paid in respect of government service (Article 19). 22. The following are the classes of income that may be subjected to limited taxation in the State of source: - dividends: provided the holding in respect of which the dividends are paid is not effectively connected with a permanent establishment in the State of source....
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....racting State (S) of which the taxpayer is not a resident within the meaning of Article 4. 7. For other items of income or capital, the attribution of the right to tax is not exclusive and the relevant Article then states that the income or capital in question "may be taxed" in the Contracting State (S or E) of which the taxpayer is not a resident within the meaning of Article 4. In such case, the State of residence (R) must give relief so as to avoid the double taxation. Paragraphs 1 and 2 of Article 23A and paragraph 1 of Article 23 B are designed to give the necessary relief." If a contracting state is to given exclusive right to tax a particular kind of income, then relevant article of convention uses the phrase 'shall be taxable only'. As a rule, such exclusive right is given to state of residence, though there are a few articles where exclusive right to tax is given to state of source also. This phrase precludes other contracting state from taxing that income. For item of income, where attribution of right to tax is not exclusive, the convention uses the phrase 'may be taxed'. Regarding 'dividend' and 'interest' income', primary right of taxation is given to state of re....
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....dence is not lost. Second sentence of article says that state of source has non-exclusive right to tax business income sourced from PE as it uses phrase 'may be taxed'. Combined reading of these sentences of article 7 means that state of source has non-exclusive right to tax business income attributable to PE and therefore it may tax it as per its domestic laws. However, this non-exclusive right of state of source does not extinguish inherent right of state of residence to tax global income of its resident. In a situation where state of residence had given up its such inherent right, the second sentence of article 7 would have used phrase 'shall be taxable only'. Now, in all DTAAs applicable in case of assessee, second sentence uses phrase 'may be taxed', therefore inherent right of India to tax global income of its resident is not lost. 20.3 The contention of the assessee is that since its foreign income is taxable in foreign countries, it can not be taxed in India. This contention of the assessee is fallacious in view of discussion above. Rather, the proper course on part of assessee would have been to claim credit of taxed paid in foreign countries because all relevant DTAA s....
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....672 of ITR 267. Closer examination of aforesaid decision of hon'ble Supreme Court shows that it has clearly upheld the basic principle that state of residence has right to tax global income of its resident. Malaysia becomes the state of residence for assessee after applying tie breaking rules. 20.5 In subsequent cases relied upon by the assessee, it has been held that income arising in state where permanent establishment is situated can be taxed in that state only and state of residence is precluded from taxing such income. This view, it is humbly submitted, militates against the basics of DTAA and also not consistent with ratio of Hon'ble Supreme Court decision in CIT v. P.V.A.L. Kulandagan Chettiar case. In all cases relied upon by the assessee, the tax payers were resident of India and there was no situation of dual residence. India remained state of residence and therefore India had inherent right to tax global income of its residents. Therefore, it is most respectfully submitted that ratio of CIT v. P.V.A.L. Kulandagan Chettiar decision has not been correctly applied in these cases. 20.6 Ld. DR also relied upon ITO v Data Software Research Co. P Ltd. 2008- TIOL-09-ITAT-M....
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....x shall be charged for any assessment year at any rate or rates, income-tax at the rate or those rates shall be charged for that year in accordance with, and [subject to the provisions (including provisions for the levy of additional income-tax) of, this Act] in respect of the total income of the previous year of every person. The provisions of this section also provide that where by virtue of any provision of this Act income-tax is to be charged in respect of income of a period other than the previous year, notwithstanding shall be charged accordingly. Section 5 of the Income-tax Act defines the scope of the total income which read as under :- "5. (1) Subject to the provisions of this Act, the total income of any previous year of a person who is a resident includes all income from whatever source derived which - (a) is received or is deemed to be received in India in such year by or on behalf of such person ; or (b) accrues or arises or is deemed to accrue or arise to him in India during such year ; or (c) accrues or arises to him outside India during such year : Provided that, in the case of a person not ordinarily resident in India within the mea....
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....uch of them as is attributable to that permanent establishment. Thus, the first part of the Article gives exclusive right to the taxation of business income to the state of residency as the phrase used as "shall be taxable only". The second part of this article 7 of the relevant DTAA provides right to taxation of the state of residency as well as to the other contracting state wherein the permanent establishment situated. Thus, the Article 7 provides that in such a situation, the state of the residents does not have exclusive right to tax but it has inherent right to tax such income. The article also provides that the state of the source has also right to tax the business income. It is a non-exclusive right in case there exist a permanent establishment. The phrase used "may be taxed". Therefore, the combined reading of the sentences of Article 7 of relevant DTAA means that the state of source has non-exclusive right to tax of business income attributable to permanent establishment. In view of this, such income may be taxed as per the domestic laws. This non-exclusive right of state of source does not extinguish the inherent right of state of residency to tax global income of its re....
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....fore, do not propose to re-examine the question whether the finding is correct or not. Proceeding on that basis, we hold that business income out of rubber plantations cannot be taxed in India because of closer economic relations between the assessee and Malaysia in which the property is located and where the permanent establishment has been set up will determine the fiscal domicile. On the first issue, the view taken by the High Court is correct. We need not enter into an exercise in semantics as to whether the expression "may be" will mean allocation of power to tax or is only one of the options and it only grants power to tax in that State and unless tax is imposed and paid, no relief can be sought. Reading the Treaty in question as a whole when it is intended that even though it is possible for a resident in India to be taxed in terms of ss. 4 and 5, if he is deemed to be a resident of a Contracting State where his personal and economic relations are closer, then his residence in India will become irrelevant. The Treaty will have to be interpreted as such and prevails over ss. 4 and 5 of the Act. Therefore, we are of the view that the High Court is justified in reaching its ....
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....behalf of such person or accrues or arises or is deemed to accrue or arise in India during such year or accrues or arises to him outside India during such year. Thus, the scope of the total income in the case of a resident also extended to the income accrues or arises to him outside India during such year. Under the source based system, a country can tax a person whether resident or non-resident, only on income sourced inside the country. Had all the countries in the world following source based taxation system then the problem of double taxation would not have arisen. However, under the resident based system, there arises a situation of double taxation because countries where the taxpayer is a resident then it will have to pay tax on its global income. To avoid the double taxation, two rules are devised in the DTAA's, i.e., one is by way of providing Distributive Rules under which taxing rights allocated between contracting state with respect to various kinds of income; and the second rule is to put state of residence under an obligation to give either credit for taxes paid in the source state or to exempt the income which is taxed in source state. These two rules have also been e....
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.... income that may be subjected to limited taxation in the State of source, and - income and capital that may not be taxed in the State of source or situs. 21. The following are the classes of income and capital that may be taxed without any limitation in the State of source or situs: - income from immovable property situated in that State (including income from agriculture or forestry), gains from the alienation of such property, and capital representing it (Article 6 and paragraph 1 of Articles 13 and 22); - profits of a permanent establishment situated in that State, gains from the alienation of such a permanent establishment, and capital representing movable property forming part of the business property of such a permanent establishment (Article 7 and paragraph 2 of Articles 13 and 22); an exception is made, however, if the permanent establishment is maintained for the purposes of international shipping, inland waterways transport, and international air transport (cf. paragraph 23 below); - income from the activities of artistes and sportsmen exercised in that State, irrespective of ....
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....e taxable only in the State in which the place of effective management of the enterprise is situated (Article 8 and paragraph 3 of Articles 13 and 22). Business profits that are not attributable to a permanent establishment in the State of source are taxable only in the State of residence (paragraph 1 of Article 7). The Distributive Rules uses the word "shall be taxed only", "may be taxed" and "may also be taxed". Thus, if a contracting state is to give exclusive right to tax a particular kind of an income, then relevant article of convention uses the phrase "shall be taxed only". As a rule, such exclusive right is given to state of residence, though there are a few articles where exclusive right to tax is given to state of source. The phrase "shall be taxed only" precludes other contracting state from taxing that income. In the cases, where distribution of right to tax is not exclusive, the convention uses the phrase "may be taxed". In such Model of Convention, the use of the phrase "may be taxed" does not give exclusive right of taxation to state of residence. As per these Model of Convention, the word "may be taxed" and "may also be taxed" gives simultaneous taxing rights to ....
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....that source of income. On the aspect and scope of the expression "may be taxed", Hon'ble Supreme Court had not expressed any opinion. Therefore, the incomes derived from rubber plantations of Malaysia were held to be not assessable in India. Similarly, the capital gain arising on the sale of immovable property in Malaysia was held to be not assessable income in India and business income for not having permanent establishment in India. The income derived from business in Malaysia not assessable in India. Thus, the facts of that case are completely at variance to the facts of assessee's case. 21.3 In the case of CIT v. S.R.M. Firm & Others - 208 ITR 400, the subject matter was taxability and computation of income depending upon the agreement entered into between the Government of India and Government of Malaysia for avoidance of double taxation. Income from Rubber Estate in Malaysia and there was no separate establishment maintained in India in respect of the rubber estate in Malaysia. Thus, facts of that case are also at variance to the facts of assessee's case. 21.4 In the case of L.G. Cable v. DDIT (International Taxation) reported in 314 ITR (AT) 301 (Delhi), the facts are ....