2017 (3) TMI 1324

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....ance u/s.40(a)(ia) of the Act made by the assessing officer of professional fee of Rs. 3,90,025/- paid to Mr. Arnold Allen. b) That under Article 15 of the Double Taxation Agreement between India and U.K. the said fee is not taxable in India and the provisions of DTA override provisions of the Act. c) That the disallowance of the said amount of Rs. 3,90,025/- may be cancelled. 3. The brief facts of the case are that the assessee filed E-return of income for the A.Y.2010-11 declaring total income to the tune of Rs. 13,61,10,940/- on 18.09.2010. The return of income was processed u/s.143(1) of the Income Tax Act, 1961 ( in short "the Act"). Subsequently, the case was selected for scrutiny under CASS. Notice u/s.143(2) of the Act dated 27.09.2011 was issued which was duly served upon the assessee. Thereafter the notice u/s.142(1) of the Act dated 27.07.2012 was issued to the assessee. Thereafter the questionnaires dated 01.10.2012 and 09.11.2012 were issued to the assessee. The assessee was engaged in the business of manufacturing of Ferro Manganese, Silico Manganese and Value added Ferro Alloys, Ferro Manganese Slag and such other products. The Assessing Officer capitalized a....

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....xpenditure to the tune of Rs. 14,09,811/- on account of repairing of sliding window, painting wall and ceiling, fixing roll blind on glass window, removing wooden flooring, providing and fixing new flooring, scrapping the existing floor and skirting, flooring and skirting in PUT Coating etc. and the said amount was paid to M/s. Romi Interior for the repair of Mumbai office. These expenditure falls in the category of revenue expenses as held by the Hon'ble Bombay High Court in the case of CIT Vs/ Talathi and Panthaky Associated Pvt. Ltd. reported in 343 ITR 309 and CIT Vs. Hede Consultancy Pvt. Ltd. and another reported in 258 ITR 380 and Hon'ble ITAT, Chandigarh bench in the case of M/s. IDS Infotech Ltd. Vs. DCIT, Circle 4(1), Chandigarh in ITA No.52/Chd/2016 for A.Y.2009-10 dated 24.05.2016. It is not in dispute that the assessee was already having the asset which was reconstructed and repaired. The matter of controversy has duly been covered by the above said law in which such kind of repair has been treated as revenue in nature. In view of the said circumstances we are of the view that the finding of the CIT(A) on this issue is wrong against law and facts and is not liable to b....

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....tate if such services are performed in that other State and if: (a) He is present in that other State for a period or periods aggregating to 90 days in the relevant fiscal year; or (b) he or the partnership, has a fixed base regularly available to him, or it, in that other State for the purpose of performing his activities; but in each case only so much of the income as is attributable in those services. 2. For the purpose of paragraph 1 of his Article an individual who is a member of a partnership shall be regarded as being present in the other State during days on which, although he is not present, another individual member of the partnership is so present and performs professional services or other independent activities of a similar character in that State. 3. The term professional services includes independent scientific, literary, artistic, educational or teaching activities as well as the independent activities of physicians, surgeons, lawyers, engineers, architects, dentists and accountants. 7. It is not in dispute that the appellant has paid professional fees to the tune of Rs. 3,90,025/- to M/s. Arnold Allen who was the Chartered Accountant and was residing ....

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....Tax (Intl. Taxation) 2(1) dated 04.03.2016 are on record and para 7 speaks about the permanent establishment in India, which reproduced as follows:- "7. In our opinion, in the case under consideration the basic issue to be decided is as to whether the assessee had PE in India or not. If it had rendered services in India for more than 6 months continuously, it has to be held that it had PE in India. Therefore, it would be useful to find out as what services were rendered by the assessee in India. We find that the assessee had issued 10 invoices (page no.49-58 of the paper book) to three Indian parties, that only one invoice was issued to GIPCL, two to NLC and balance seven to MNBECL. A close scrutiny of the invoices prove that the assessee had rendered services that were of consultancy nature and therefore same are governed by the provisions of Article 12 of the DTAA. In our opinion, for computing continuous stay for PE purpose actual stay of employees has to be considered and not the entire contract period. We would like to refer to the matter of J Ray Mcderrmott Easter Hemisphere Ltd. (54 SOT 363). In that matter it was held that period of stay in India for a non resident entity....