2022 (1) TMI 960

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.... and based on the directions of the Hon'ble DRP, erred in holding that the Appellant has a business connection in India as per the provisions of section 9(1)(i) of the Act and a Permanent Establishment (PE) in India as per Article 5 of the India-Switzerland Double Taxation Avoidance Agreement (IS tax treaty) and consequently, the reinsurance premium earned by the Appellant from Indian Insurance companies (hereinafter referred to as 'cedents') is taxable in India even though the risks are insured from outside India. With regard to the above, the learned AO erred on the following grounds: 2.1 The learned AO has, on the facts and circumstances of the case and in law, and based on the directions of the Hon'ble DRP, erred in concluding that the Appellant has a business connection in India as per the provisions of section 9(1 )(i) of the Act. 2.2 The learned AO has, on the facts and circumstances of the case and in law, and based on the directions of the Hon'ble DRP, erred in holding that the employees of Swiss Re Services India Private Limited (SRSIPL) are de facto employees of the Appellant and they render services to the Appellant, since ....

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.... in law, and based on the directions of the Hon'ble DRP, erred in not following the decision of the Hon'ble Income-tax Appellate Tribunal (ITAT), Mumbai in the Appellant's own case, on the same facts, for AY 2010-11, AY 2011-12, AY 2012-13, AY 2013-14 and AY 2015-16, wherein it was held that the Appellant neither has a business connection in India in light of Explanation 2 to section 9(1) of the Act nor does it have a PE in India under the provisions of IS tax treaty; therefore, no income earned by the Appellant from cedents would be taxable in India. 4. Ground 4 The learned AO has, on the facts and circumstances of the case, erred in considering the incorrect amount of INR 79,266,903 as loss per the return of income in the Computation form annexed to the final assessment order as against a loss of Rs. 79,280,349 reported by the Appellant in its return of income. 5. Ground 5 The learned AO has, on the facts and circumstances of the case, in law and consequent to error in ground 4, erred in short granting of interest under section 244A of the Act on the refund determined in the final assessment order. The above grounds of obje....

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....r the parties to the present appeal and perused the order passed by lower authorities in the light of the arguments addressed by the ld. A.Rs for the parties to the appeal and law on the issue in controversy. Ground No. 1 8. This ground is general in nature, hence needs no specific findings. Ground No. 2 & 3 9. It is categorical facts of the assessee that assessee has neither a business connection in India nor it has a PE in India under the provisions of Indo-Swiss Tax Treaty, hence income earned by the assessee is not taxable in India. Ld. AR for the assessee contended that Gr. No. 1 & 2 are successively covered in favour of the assessee since AY 2010-11 and has drew our attention towards para 12.1, 19.3 and 19.4 of impugned order passed by Ld. DRP. The factual position canvassed by Ld. AR for the assessee that this issue is covered in its favour by the earlier order of the Coordinate Bench of Tribunal and has not been controverted by the Ld. DR for the revenue. 10. We have perused the order passed by Ld. DRP who has though admitted that this issue has already been decided in favour of the assessee successively by the Tribunal since AY 2010-11, but declined to follo....

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.... DRP to collect evidence or cause any enquiry to be made before giving directions to the Assessing Officer under Section 144C(5) . The DRP procedure can only be initiated by an assesses objecting to the draft assessment order. This would enable correction in the proposed order (draft assessment order) before a final assessment order is passed. Therefore, we are of the view that in the present facts this issue could be agitated before and rectified by the DRP. 19.3 It has been ascertained that the above issue is being contested by the Department and it has filed an appeal before the Hon'ble High Court for A.Y. 2010-11. As the department has decided to go into further appeal against the said order of the Hon'ble ITAT, we do find any infirmity in the draft order of the AO/TPO in keeping the issue alive. We have also taken note of the decision of the Hon'ble Supreme Court of India; in the case of Malabar Industrial Co. Ltd. vs. Commissioner of Income Tax (2000) 159 CTR 0001 : (2000) 243 ITR 0083, wherein it is observed that "The scheme of the Act is to levy and collect tax in accordance with the provisions of Act and this task entrusted to the Revenue," 19....