TaxTMI 
TaxTMI 
2022 (9) TMI 1313
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....espect of their contract with Delhi Metro Rail Corporation ("DMRC"). Re : BTIN forms a "Fixed Place Permanent Establishment" of the Appellant in India. 3. That the CIT(A) erred in upholding the action of the AO in treating BTIN as a "Fixed Place Permanent Establishment" ("Fixed Place PE") of the Appellant company under Article 5(1) of the Indo-Sweden DTAA. 4. That the AO/CIT(A) erred in concluding the existence of Fixed Place PE solely by relying upon the DRP Directions for AY 2011-12 and without independently analyzing the facts for the year under consideration. 5. That the AO/CIT(A) erred in relying upon the DRP Directions passed for A Y 2011-12 without appreciating that there was a new contract, namely, CS-01, in operation during the year under consideration and DRP findings were based on analysis of only BS-02 contract. 6. That the AO/CIT(A) erred in applying the conclusions, drawn in earlier years, on the basis of analysis of BS-02 contract, to CS-0l contract for concluding that BTIN is PE of the Appellant in India in respect of contract CS-0l with the DMRC and attributing income of INR 1,11,57,158/- to BTIN PE. 7. That the AO/CIT(A) failed ....
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....ecision of the Hon'ble High Court of Delhi in DIT v. Ericson AB [2011] 16 taxmann.com 371 (Delhi). 18. That without prejudice, the AO/ CIT(A) erred in holding that there existed a PE of the Appellant in India in the form of BTIN despite the conclusion of the AO that there also existed an AOP (consisting of the Appellant and BTIN) in India and as such there could not be parallel findings on AOP and PE consisting of same entities. Re: Consequential Grounds 19. That the AO has erred in initiating penalty proceedings under Section 271 (1)(c) of the Act. The above grounds of appeals are all independent and without prejudice to one and another." 3. At the outset, ld. Counsel of the assessee stated that he shall not be pressing ground no.5 as referred above, hence the same is dismissed as not pressed. 4. Brief facts of the case are that assessee in this case is a company registered and incorporated under the laws of Sweden. The company is a tax resident of Sweden as contemplated under Article 4 of the India- Sweden Double Taxation Avoidance Agreement. It is engaged in the business of manufacturing of train control and signaling systems for mas....
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.... attribution of gross profits made by the AO, ld. CIT (A0 directed that attribution of 10% will be justified. 7. Against this order, assessee is in appeal before us. We have heard both the parties and perused the record. 8. At the outset, ld. Counsel of the assessee contended that the issue is squarely covered in favour of the assessee by the decision of ITAT in assessee's own case for earlier and subsequent assessment years as under:- (i) Copy of order dated 29.10.2020 passed by this Hon'ble Tribunal in ITA No. 859/Del/2016 in Appellant's own case for A Y 2011-12. (ii) Copy of order dated 27.11.2020 passed by this Hon'ble Tribunal in ITA No.4448/Del/2018 in Appellant's own case for AY 2012-13. (iii) Copy of order dated 27.09.2021 passed by this Hon'ble Tribunal in ITA No.8246/Del/2018 & 8247/Del/2018 in Appellant's own case for AY 2013-14 and 2015-16. (iv) Copy of order dated 15.02.2022 passed by this Hon'ble Tribunal in ITA No.6963/Del/2018 in Appellant's own case for AY 2014-15. 9. Per contra, ld. DR for the Revenue referred to grounds no.5 and objected that when assessee has himself is saying that contract....
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....so refer to the ITAT order for AY 2011-12 and concluding portion of the said order reads as under :- "38. We find that during the DRP proceedings, the DRP was misdirected in considering the contract RS 02. This contract is between BTIN Bombardier Transportation, Germany and DMRC and for this contract, Bombardier Transportation Germany has raised invoices on BTIN for offshore manufacture and supply of equipment whereas the 20 contract under consideration is between DMRC and Consortium the appellant and BTIN towards offshore supply train control and signalling equipment. 39. We further find another error in the findings of the DRP wherein it has considered Conny Linusson a seconded employee of Bombardier Sweden. The error is that the said seconded employee was for Rs. 02 contract and not BS 02 contract, which is under consideration. We have also gone through the agreement between BTIN and Conny Linusson which fortifies the fact that Conny Linusson for Rs. 02 contract with DMRC. 40. In our considered opinion, the entire findings of the DRP are based on erroneous appreciation of wrong facts and on such erroneous appreciation of wrong facts, the DRP held that ....