TaxTMI 
TaxTMI 
2019 (3) TMI 134
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....e appellant, M/s. GE Engine Services Malaysia SDN BHD (hereinafter referred to as 'the assessee') by filing the present appeal, sought to set aside the impugned order dated 22.11.2018 passed by Ld. CIT (Appeals)-42, New Delhi qua the Assessment Year 2002-03 on the grounds inter alia that :- "1. That on the facts and circumstances of the case and in law, the Commissioner of Income-tax (Appeals) ["CIT(A)"] erred in confirming the action of the Assessing Officer ("AO") in levying penalty of Rs. 17,32,920/- under Section 271(1)(c) of the Income Tax Act, 1961 ("the Act") 2. That on the facts and circumstances of the case and in law, the Ld. AO erred in passing the penalty order under Section 271(1)(c) of the Act which are wholly without juri....
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....aw, the CIT(A) erred in upholding the levy of penalty, without appreciating that penalty under Section 271 (1)( c) of the Act had been deleted in the case of Rolls Royce, which formed the bedrock and sole basis of the addition made by the AO, on which penalty has now been levied. 8. That on the facts and circumstances of the case and in law, the CIT(A) erred in confirming the levy of penalty under Section 271 (1)( c) of the Act on the basis of profits attributed to the alleged PE of the Appellant, which was based on estimation, and, therefore, do not tantamount to concealment of income or furnishing of inaccurate particulars of income." 3. The appellant, M/s. GE Engine Services LLC (hereinafter referred to as 'the assessee') by filing th....
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....ut appreciating that on identical facts, penalty had been deleted by the predecessor of the CIT(A) in the case of GE Caledonian Ltd. and GE Aviation Service Operation LLP for the A Y 2011-12. 6. That on the facts and circumstances of the case and in law, the CIT(A) erred in upholding the levy of penalty, without appreciating that the Hon'ble High Court having admitted the appeal of the Appellant for the same AY on a substantial question of law qua existence of a permanent establishment, the issue was prima facie debatable, on which no penalty could have been levied. 7. That on the facts and circumstances of the case and in law, the CIT(A) erred in upholding the levy of penalty, without appreciating that penalty under Section 271 (1)....
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.... has confirmed the penalty levied by AO by dismissing the appeals. Feeling aggrieved, the assessee has come up before the Tribunal by way of filing the present appeals. 7. We have heard the ld. Authorized Representatives of the parties to the appeal, gone through the documents relied upon and orders passed by the revenue authorities below in the light of the facts and circumstances of the case. 8. Undisputedly, assessment orders framed by the AO have been upheld by the ld. CIT (A) as well as by the Tribunal, who have held that GE Overseas entities have PEs in various forms and these are fixed place PE, Office PE, construction PE and agency PE and in case of oil and gas business, involves in installation and commissioning would also consti....
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....09 vide ITA Nos. 6403/Del./2018, 695/Del./2019, 696/Del./2019 & 697/Del./2019 order dated 25.02.2019 . 10. In view of what has been discussed above, since substantial question of law has been framed by Hon'ble High Court on the issue if the assessee is having fixed place PE in India, which is the basis of levying/confirming the penalty u/s 271(1)(c) of the Act, the issue becomes debatable, hence penalty u/s 271(1)(c) is not leviable. Reliance in this regard is placed on the decision rendered by Hon'ble Delhi High Court in ITA 240/2009 in CIT-II vs. Liquid Investment and Trading Co. order dated 05.10.2010 whereby identical issue is decided as under :- "Both the CIT(A) as well as the ITAT have set aside the penalty imposed by the Assessing....