TaxTMI 
TaxTMI 
2024 (2) TMI 987
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.... the assessment order should be set aside. B) SECOND GROUND OF APPEAL 3. The Ld. AO erred, both in facts and in law, in concluding the existence of "Dependent Agent Permanent Establishment" (hereinafter referred as to "DAPE") of the Appellant based on his findings that he condition of paragraph 4 of Article 5 of the DTAA between India and USA are fulfilled in the present case. 4. Therefore, the Appellant prays that the addition of Rs. 33,86,83,526/- to the income of the Appellant should be deleted. C) THIRD GROUND OF APPEAL 5. The Ld. AO has erred, both in facts and in law, that Automation Anywhere Software Private Limited (AASPL) has secured the orders of the Appellant without appreciating or considering the material on record and relying merely on conjectures and suspicion. 6. The Ld. AO erred, both in facts and in law, in holding that the market support activities provided by AASPL to the Appellant amount to "securing orders". It is trite in law that business support or marketing support activities and it does not amount to securing or concluding orders. D) FOURTH GROUND OF APPEAL 7. The Ld. AO erred, both i....
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....ferred outside India under contractual obligation and payments are also made outside India. 15. The Appellant prays that the addition made by the AO of Rs. 33,86,83,526/- to the returned income of the Appellant for AY 2021-22 is liable to be deleted. J) TENTH GROUNDS OF APPEAL 16. The Ld. AO erred, both in facts and in law, in levying the interest of Rs. 28,41,025/- u/s 234A of the Act even though the Appellant has filed its income tax return before the due date as per Section 139(1) of the Act. 17. Therefore, the Appellant prays that the interest levied by the Ld. AO upon the Appellant is liable to be deleted. K) ELEVENTH GROUNDS OF APPEAL 18. The Ld. AO erred, both in facts and in law, in initiating the penalty proceedings u/s 270A of the Act, for reasons of misreporting or underreporting of income. 19. Therefore, the Appellant prays that the penalty proceeding initiated by the Ld. AO is liable to be quashed. L) TWELTH GROUND 20. The Ld. AO erred, both in facts and in law, by committing the calculation error of Rs. 50,53,010/- in computing the tax liability. 21. Therefore, the Appellant pray....
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.... of the assessee visited India regularly for almost the entire part of the year and operated from the fixed premises of assessee's Indian employees of the assessee were also using the premises of the subsidiary of the assessee in India to execute important functions including core functions of the assessee through regular visits almost throughout the year. Thus, the place of operation and the premises from where the activities of the employees were held to be a PE of the assessee in India. The same was confirmed by the DRP by following directions for AY 2018-19 as under: "4.2.7 The panel has considered the submissions of the assessee as well as the argument of the AO in the draft assessment order. The submissions made and the arguments taken by the assessee are similar to those placed before the AO during assessment proceedings. After inquiries through a series of notices u/s 142(1) and 133(6), the AO observed that 30 employees of the assessee visited and worked in India for a total period of 459 days. These employees visited India for different purposes including training, general office visit, client visits, attending a conference, participation in hiring, to assesse....
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....d a subsidiary of the assessee in India, namely AASPL to be assessee's DAPE in India. The assessee submits that the key facts in the case as well as the key arguments of the AO regarding treatment of AASPL as DAPE of the assessee in India remains the same as in AY 2018-19 and 2019-20. It is submitted that the Hon'ble ITAT vide order dated 24.08.2023 in assessee's own case for AY 2018-19 and 2019-20 has decided the issue of existence of PE as well as attribution of profit in respect of the alleged PE in favour of the assessee. The Panel directs the AO to verify from records if the decision of the Hon'ble ITAT relied upon by the assessee has been accepted by the revenue, and follow the same. If however, the same has not been accepted by the Revenue, and further appeal filed, the panel upholds the conclusion of the AO following its directions in AY 2018-19 and 2019-20. Needless to say, the AO will pass a speaking order in this regard. Ground numbers B to P along with sub grounds are accordingly disposed of." 6. The DRP accordingly gave following directions to the AO in para 5: "5. Directions under section144C of the Income Tax Act. 5.1 The Assessing Officer is dir....
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.... record through credible evidence that the assessee has a fixed placed PE in India through which it has earned the income relating to sale of software licence. Therefore, in our considered opinion, no part of such income can be attributed to the PE" 32. The said observation of the Hon'ble ITAT 'is not acceptable on merits as it's facts that the employees of the assessee company visited India on frequent basis in the previous A.Ys. Hon'ble ITAT has not considered the facts of the case and business model of the assessee while deciding such appeals. 32.1 These employees visited India during previous year for different purposes including training, general office visit, client visits, attending a conference, participation in hiring, to assessee and standardize financial processes, to provide guidance on technical standards, to assessee and review documentation, to set up service standards, to conduct demo, to resolve product issues, to review HR process etc. The visiting employees are in the rank of senior management, directors, senior engineers, CFO, VP etc. These employees worked at the premises of Automation Anywhere Software Private Limited (AASPL), a subsidiar....