2022 (6) TMI 959

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....d by the Appellant- Revenue, and Income Tax Appeal No.4434/2002 was filed by the Assessee before the Income Tax Appellate Tribunal. By a common order dated 6 May 2006, the appeal filed by the Revenue was dismissed by the Tribunal, whereas the appeal filed by the Assessee was allowed. 3. Such a joint appeal against the disposal of two appeals ought not to have been filed by the Appellant- Revenue. The learned counsel for the Respondent- Assessee submitted that such a combined appeal ought not to have been filed but contends that assuming it to be permissible, there is no merit in either of the appeals. Therefore, we have proceeded to examine the appeal. 4. The Appellant- Revenue has pressed the following questions of law as substantial que....

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....nce of Double Taxation and Prevention of Fiscal Evasion with Mauritius (Indo Mauritius Tax Treaty) and, therefore, the Respondent-Assessee has a permanent establishment as defined in Article 5(2)(c) of the Treaty. The Tribunal has upheld the contention of the Assessee. 6. Article 5 of the Treaty reads thus: "ARTICLE 5 - Permanent establishment - 1. For the purposes of this Convention, the term "permanent establishment" means a fixed place of business through which the business of the enterprise is wholly or partly carried on. 2. The term "permanent establishment" shall include- (a) a place of management; (b) a branch; (c) an office; (d) a factory; (e) a workshop; (f) a warehouse, in relation to a person providing storage fa....

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.... ..... ..... ..... ..... ..... ....." 7. The learned counsel for the Appellant- Revenue sought to contend that there was a survey carried out under section 133A of the Income Tax Act, 1961 on 10 August 2000, wherein it was found that the Assessee kept the office of the Company at Dubai for its business. It was contended that the Assessee did not have any functional office in Mauritius, and the office at Andheri, Mumbai, was used for the project implemented by the Assessee company. The learned counsel for the Appellant contended that since it was an admitted position that there was an office of the Assessee at Andheri, the same would fall within the definition of permanent establishment as per Article 5 of the Treaty. Based on the documents....

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....ts such as the departmental paper-book and daily progress report, which were examined, showed that the work provided backend operations. It was not established by the Appellant- Revenue that any substantial business has been done from the office. After considering these documents, the Tribunal found that the concerned place of business was only for the supply of information having preparatory or auxiliary character. Accordingly, the Tribunal concluded that the same would fall under Article (5)(3)(e)(ii). This finding of fact, recorded by the Tribunal after due consideration of the material on record, cannot be considered as perverse. The view taken by the Tribunal is a possible view, and that being the position, the question of law (a) soug....