2021 (9) TMI 1109

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....for short 'ITAT'] in ITA No. 1885/Del/2014 whereby the appeal of the Revenue was dismissed for Assessment Year 2005-06. 2. The questions of law proposed by the appellant-revenue in the present appeal are as under:- A. Whether on facts and in the circumstances of the case, the Ld. ITAT erred in law in quashing the assessment proceedings in the case of assessee without appreciating the facts the assessee has a business connection in India under Section 9(1)(i) of the Income Tax Act, 1961 and has a PE, in the form of M/s L.G. Electronics India Ltd. under Article 5(1) & 5(2) of DTAA between India and Indonesia? B. Whether on facts and in the circumstances of the case, the Ld. ITAT erred in law in holding that no income is a....

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....not have the benefit of 'hindsight' i.e., the subsequent appellate order as well as the decision of Hon'ble Supreme Court. 5. Learned counsel for the appellant-revenue states that the ITAT erred in not appreciating that the total income of a person, who is a non-resident in terms of Section 5(2) of the Act to the extent it is received or deemed to be received in India, or accrued or arisen or deemed to have accrued or arisen in India is taxable in India. He states that Section 9(1) of the Act prescribes that all income accruing or arising, whether directly or indirectly through or from any business connection in India shall be deemed to accrue or arise in India. He further states that the ITAT erred in holding that the transactions....

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....the CIT(A) vide consolidated order dated 4th September, 2018 held that none of the AEs, apart from LG Korea, had PE in India. The said order has not been appealed against by the Department and hence the finding has become absolute. 9. It is also not understood as to how the appellant-Revenue can contend that the respondent-assessee does not have PE in India for the purpose of 201 proceedings in the case of LGEIL but would have a PE as far as its own taxability is concerned for the same Assessment Year. 10. This Court is of the opinion that if the present appeal is entertained, it would amount to sitting in an appeal over the judgment and order passed by the Supreme Court in Civil Appeal No. 781/2018. 11. In fact, ....