TaxTMI 
TaxTMI 
2022 (1) TMI 237
X X X X Extracts X X X X
X X X X Extracts X X X X
....e material on records are as under: 4. Assessee is a company stated to be incorporated in Japan and is involved in trading of various items and also undertakes several projects in connection with big industrial installations power projects. Assessee filed its return of income for A.Y. 2009- 10 on 30.09.2009 declaring income of Rs. 7,87,67,803/-. The case was selected for scrutiny and thereafter assessment was framed u/s 144C(3) r.w.s 143(3) of the Act vide order dated 22.02.2012 and the total income was determined at Rs. 9,07,91,624/-. Aggrieved by the order of AO, assessee carried the matter before the CIT(A), who vide order dated 29.05.2015 (in Appeal No.318/2014-15) granted partial relief to the assessee. Aggrieved by the order of CIT(A), Revenue is now in appeal before us and assessee has also filed Cross Objection. The grounds raised by the Revenue reads as under:- "1. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in holding that the Offshore supplies in respect of 'Teesta' and 'Purulia' projects cannot be taxed @ 10% u/s 44BB of the IT Act. 2. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in hold....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... made the detailed submissions which are not found acceptable to AO. AO was of the view that as per provisions of Section 44BBB of the Act the deemed income u/s 44BBB has to be computed @10% on the amounts received on account of such business whether in or outside India. He was of the view that assessee was required to include all the amounts received/ receivable by it whether in India or outside India which are on account of business carried on by the assessee. He was further of the view that under the Provision of Section 44BBB of the Act which is the scheme of presumptive taxation, the taxable income has to be computed at the percentage of the turnover of the assessee. He therefore held that 10% of the payments that was received from offshore supplies in respect to Teesta & Purulia projects should be considered as taxable income u/s 44BBB of the Act. He thereafter computed the total income from Teesta projects at Rs. 15,570,661/- and for Purulia Project Rs. 3,724,685/-. He also computed income from offshore Purulia Project at Rs. 58,711,918/-. 7. Aggrieved by the order of AO, assessee carried the matter before the CIT(A). CIT(A) following the order of his predecessor for A.Y.....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the non consolidated Balance Sheet of Mitsui & Co. Japan, the gross profit worked out to 1.530%. He thereafter worked out the profits attributable to the PE at Rs. 285,646,263/- as per the following table: Total trading T.O. in India (INR) 37,339,380,834 Gross Profit @ 1.530% 571,292,527 Gross Profits attributable to Indian operation @ 50% 285,646,263 12. Aggrieved by the order of AO, assessee carried the matter before the CIT(A). CIT(A) noted that facts in the year under consideration were identical to A.Y. 2008-09. He thereafter upheld the action of AO to the extent of holding Mitusi India Pvt. Ltd. as DAPE but restricted the profit attributable to Indian operation at 20% as held by his predecessor. The relevant observation of CIT(A) are as under: "The facts of the present case are identical to the facts of the preceding years. In the assessment year under consideration the AO has considered Mitsui India Pvt. Ltd. as a DAPE and 50% of the gross profit has been attributed to this DAPE. Respectfully following the order of my predecessor CIT(A) for immediate preceding, year 2008-09, I hold that the action of the AO to the extent of holding Mitsui India....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng income of the appellant. This ground of appeal is disposed of accordingly. The assessee succeeds in part." 13. Aggrieved by the order of CIT(A), Revenue is now before us. 14. Before us, Learned DR supported the order of AO. 15. Learned AR on the other hand reiterated the submissions made before the lower authorities and further submitted that issue in the present ground is squarely covered by the decision of Tribunal in assessee's own case for A.Y. 2006-07 to 2008-09, 2010-11, 2012-13 & 2013-14. He pointed to the relevant portion of the order placed in the paper book. He therefore submitted that in view of these facts the ground of the Revenue be dismissed. 16. We have heard the rival submissions and perused the material available on record. The issue in the present ground is with respect to the computation of profits attributable to PE. AO attributed the profit to PE @ 50% whereas CIT(A) attributed it to 20%. We find that identical issue arose in assessee's own case in A.Y. 2006-07 to 2008-09, 2010-11, 2012-13 & 2013-14. The relevant findings of the Co-ordinate Bench of Tribunal in assessee's own case for A.Y. 2013-14 in ITA No.5901/Del/2016 in CO No.28/Del....
X X X X Extracts X X X X
X X X X Extracts X X X X
....llowed. The other grounds are treated as academic in nature and tax neutral; therefore, same are dismissed as infructuous." 17. Before us, no distinguishing feature in the facts of the case under consideration and that of earlier years has been pointed by Revenue. Further, Revenue has also not placed any material to demonstrate that the order of the Co-ordinate Bench of Tribunal in assessee's own case for earlier years has been set aside/stayed/overruled by higher judicial forum. In such circumstances, we following the order of the Co-ordinate Bench for earlier years and for similar reasons, find no reason to interfere with the order of CIT(A) and thus the grounds of Revenue is dismissed. 18. Ground No.3: During the course of assessment proceedings, AO noticed that assessee has paid commission of Rs. 506,072,924/- to MIPL. The commission on the total sales of Rs. 37,339,380,834/- worked out to 1.35% of the total sales. It was submitted by the assessee that commission was paid to MIPL for support services rendered by it to the assessee and that the same was as per the agreement entered by it with the assessee. The submissions of the assessee were not found acceptable to AO. AO....
X X X X Extracts X X X X
X X X X Extracts X X X X
....evenue is aggrieved by the order of CIT(A) wherein he has held that the assessee's income from Teesta & Purulia Projects be taxed on cash basis instead of mercantile basis. We find that identical issue arose before the Co-ordinate Bench of Tribunal in assessee's own case in A.Y. 2007-08. The Co-ordinate Bench, in ITA No.4329/Del/2011 order dated 07.01.2020, decided the issue in assessee's favour, by dismissing the ground of Revenue by observing as under: "60. So far as ground of appeal No.3 by the Revenue is concerned, the same relates to determination of income from Teesta and Purulia projects on cash basis instead of mercantile basis. 61. After hearing both the sides, we find the AO applied section 44BBB in respect of onshore supplies and onshore services in computing the income on the basis of amount accrued. We find the Ld.CIT(A) at para 5.3 of the order has discussed the issue and held that as per the provisions of section 44BBB, it is a presumptive module. The relevant observation of the CIT(A) is at para 5.3 of his order. The Id. DR could not controvert the findings given by the Ld.CIT(A). In our opinion, the ld.CIT(A) was fully justified in holding that wh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ding the appeal for A.Y. 2007-08 (ITA No.4329/Del/2011) and 2008-09 (ITA No.794/Del/2011). He pointed to the relevant observations in the order. He therefore submitted that since the facts of the case in the year under consideration are identical to that of earlier year, the ground be allowed. 33. Learned DR did not controvert the submissions made by Learned AR but however supported the order of lower authorities. 34. We have heard the rival submissions and perused the materials on record. The issue in the present ground is with respect to the treatment of MIPL as Dependent Agency Permanent Establishment (DAPE) of assessee company. We find that identical issue arose in assessee's own case in A.Y. 2006-07. The Co-ordinate Bench for the detailed reasons stated in the order (which for the sake of brevity are not reproduced) concluded MIPL to be not a dependent agent PE of the AE. The aforesaid decision was followed by the co-ordinate Bench of Tribunal while deciding the appeal for A.Y. 2007-08 & 2008-09. In the absence of change in facts between the year under consideration and that of earlier years, we following the order of the Co-ordinate Bench for earlier years and for simil....