TaxTMI 
TaxTMI 
TaxTMI 
2022 (12) TMI 1487
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....he appeals they were heard together and are disposed of by this common order for the sake of convenience and brevity. 3. The substantive common grievance is as under :- Ground No. 1 - Alleged Permanent Establishment I'PE'I in India of the Appellant under Article 5(1) and 5(21(0 of the India - UAE Tax Treaty ('Tax Treaty') 1. On the facts and circumstances of the case and in law, the Assessing Officer ('AO') erred in concluding and the Dispute Resolution Panel ('DRP') erred in holding that the Appellant has a PE in India under Article 5(1) and 5(2)(i) of the Tax Treaty without appreciating that (i) the Appellant has no fixed place of business or presence in India; (ii) its personnel in India were not on secondment but for renderin....
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....f profits to the alleged PE in India under Article 7 of the Tax Treaty is erroneous, unwarranted and be reversed. Ground No. 3 - Erroneous alternative taxation of India source income as 'Royalty' under section 9(l)(vi) of the Income Tax Act. 1961 ('the Act') and Article 12 of the Tax Treaty 3. Without prejudice to Ground No. 1 and 2 above, on the facts and in the circumstances of the case and in law, the AO / DRP erred in equating rendering of consultancy services to be in the nature of 'Royalty' under the Tax Treaty and the Act on the contention that it relates to provision of' know-how, skill, experience, commercial information and intangibles'. The AO / DRP failed to appreciate that the essence of the agreement is ....
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....ncing facility and perused the relevant material on record. We find that identical issue raised in the present appeal has been adjudicated in ITA No. 727/Del/2017 for Assessment Year 2013-14. The relevant portion of the order of Tribunal (supra) is reproduced as under: "4. For the sake of ready reference and convenience, operative part of the order dated 04.12.2019 in ITA No. 579/Del/2013, 779/ Del/2014,1762/ Del/ 2015 and 957/Del/2016 is being reproduced herewith. "56. We find that from the concurrent reading of the Strategic Oversight Agreements (SOA), the assessee has been technically operating the hotel belonging to the owners namely, Asian Hotels Ltd, (AHL) through the. employees, who are recruited by them. The hotel pr....
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..... Further, the place of business may also be situated in the business facilities of any other enterprise too. Thus, it can be said that the assessee who is running the business operations at the premises available for constant disposal in the hotel can be said to be a place of business. The availability of an office premises to a foreign company in the premises of the contracting party in order to ensure that both the parties comply with their obligations to the contract for a long period of time will constitute a permanent establishment. As long as, the premises is at the disposal of the assessee and having the right to use the premises for the purpose of the assessee's business on behalf of the party to the agreement can constitute a ....
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....at the disposal" in the premises is available for the assessee for running of their business even for a limited time it constitutes a PE .......... 4.1 Accordingly, following the finding of Tribunal (supra), the Ground No. 1 of the appeal is decided against the assessee. The Ground No. 1 is accordingly dismissed. 7. On finding parity of facts respectfully following the findings of the coordinate Bench ground No. 1 is dismissed. 8. In so far as ground No. 2 and 3 are concerned these were also considered by the coordinate Bench in earlier assessment years the relevant findings read as under :- 7. We find that the identical issue raised in the present appeal, has already been adjudicated in ITA No. 727/Del/2017....
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....l (supra), the issue of attribution of profit to the Permanent Established (PE) is accordingly restored to the file of Assessing officer for deciding in the light of the direction of the Tribunal in AY 2013-14, as reproduced above. It is needless to mention that adequate opportunity of being heard shall be provided to the assessee. The Grounds No. 2 and 3 of the appeal are accordingly allowed for statistical purpose." 9. The issue raised vide ground No. 2 and 3 are restored to the files of the AO and the AO is directed to decide the issue afresh in line with the directions given by this Tribunal in earlier assessment years after affording a reasonable and adequate opportunity of being heard to the assessee. 10. In ITA No. ....