AI Drafter 
TaxTMI 
TaxTMI 
2014 (11) TMI 1173
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....dvocate are termed as substantial questions by Shri. Tejveer Singh. He submits that the Assessee in this case is incorporated and is tax resident of France. It is in the business of operation of ships in International traffic. The Assessee claims that it did not have any permanent establishment in India and therefore, its business profits cannot be taxed in India. 3. The Assessment Officer admits that there is an Indian agent of the Assessee. He was responsible for concluding contracts of the Assessee and also various other functions, such as broking, liaison and contact contracting parties for loading of cargo etc. This agent was also managing an office of the Assessee. These circumstances would indicate that the Assessee having permane....
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....s are substantial questions of law. 5. With regard to question No. 5, Mr. Singh does not dispute that the point has been answered in favour of the Assessee and against the Revenue by a Division Bench of this Court in the case of DIT (International Taxation) v. NGC Network Asia LLC. [2009] 313 ITR 187. 6. Mr. Irani appearing on behalf of the Assessee submits that all the findings and which have been brought to our notice and assailed before us by the Revenue are factual. The Tribunal may have reproduced all the components or parts of the Article 5, yet, its essential conclusion is based on Article 5(6). Mr. Irani invited our attention to Article 5(6) and paragraph No. 9 of the Tribunal's order, where, it records the concession of t....
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....urposes of this Convention, the term permanent establishment means a fixed place of business through which the business of an enterprise is wholly or partly carried on. 2. The term permanent establishment includes especially: (a) a place of management; (b) a branch; (c) an office; (d) a factory; (e) a workshop; (f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources; (g) a warehouse in relation to a person providing storage facilities for others; (h) a premises used as a sales outlet; (i) an installation or structure used for the exploration of natural resources provided that the activities continue for more than 183 da....
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....n the agent and the enterprise were not made under at arm's length conditions. (7. ... not relevant for our purposes)" 9. There is substance in the contention of Mr. Irani that the departmental representative appeared before the Tribunal and fairly stated that the matter should be examined in the light of applicability of Article 5(5) read with Article 5(6). The combined effect of this fair suggestion and concession is that firstly notwithstanding anything contained in Article 5(1) and (2) whether a person other than the agent of Indian State to whom paragraph 6 of Article 5 applies is acting in one of the Contracting States on behalf of an enterprise of other Contracting State, that enterprise shall deemed to have been a permanen....
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....he present case, what was essentially brought to the notice of the Tribunal was that this is an important aspect relating to the transactions, but they have not been examined in the manner indicated by us above by the Assessing Officer, therefore the matter should be restored to file of the Assessing Officer for specific adjudication of the transactions between the Assessee and the agent. The Tribunal did not accept this. Not because of any broad legal principle, but there being no finding of this nature on record at all. If the Assessing Officer or the DRP failed to render the finding and which would indicate the applicability of the Article and as pressed by the departmental representative, then, to our mind, the Tribunal was under no obl....