TaxTMI 
TaxTMI 
2026 (6) TMI 974
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....ction 144C(5) of the Act dated 30 December 2024 ('DRP directions') passed by the Learned Dispute Resolution Panel ('Ld. DRP') are erroneous and bad in law. 2. On the facts and circumstances of the case & in law, the Ld. AO grossly erred in assessing the total income of the Appellant for the relevant AY at INR 1,02,73,52,436 as against the returned income of INR 3,22,67,490. 3. On the facts and circumstances of the case & in law, the Final Assessment Order passed by the Ld. AO is contrary to the principles of natural justice, in absence of proper opportunity of being heard and accordingly, the order is void-ab-initio, a nullity in the eyes of law and is liable to be set aside. Impugned Final Assessment Order is barred by limitation 4. On the facts and circumstances of the case & in law, the Final Assessment Order passed by the Ld. AO and DRP directions issued by the Ld. DRP are barred by limitation in view of the provisions of section 153 of the Act, making it illegal, void-ab-initio and, thus liable to be quashed. Supply of Goods from outside India not taxable under the Act and India-UK Tax Treaty ('Tax Treaty') 5. On the facts ....
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.... the case & in law, the Ld. AO/Ld. DRP grossly erred in not applying any specific attribution for the alleged functions being performed in India and instead considering the entire alleged profits of the Appellant as attributable in India, which is highly arbitrary, unjustified and without any basis. Hon'ble Tribunal Orders in Appellant own case for AY 2020-21 and AY 2021-22 not followed 12. On the facts and circumstances of the case & in law, the Ld. AO/ Ld. DRP grossly erred in not following the order of Hon'ble Delhi ITAT in its own case for AY 2020-21 and AY 2021-22 wherein the addition made on account of alleged PE and taxability of income under section 44BB of the Act was deleted by ITAT. Ld. DRP's specific directions not followed in final AO order 13. On the facts and circumstances of the case & in law, the Final Assessment Order has been passed without complying with the specific binding mandates and directions issued by Ld. DRP, is erroneous, without jurisdiction and deserves to be held as null and void-abinitio. PO already remunerated at Arm length price; no further attribution warranted 14. Without prejudice to the con....
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....oil. 9.3 Under the provisions of Section 44BB, an amount of 10% of Rs. 9950849464/-, that is Rs. 995084946/- becomes the profit of the assessee chargeable to tax in India." 3.2 Accordingly draft assessment order was passed on 26.03.2024 proposing to add Rs. 99,50,84,946/- on a/c of business income of the PE of the assessee in India. 3.3 Aggrieved, the assessee filed objection before the Dispute Resolution Panel (DRP) which issued the following directions vide order dated 30.12.2024: "8.3 The factual matrix is similar to the preceding years, therefore, the Panel hereby rejects objections for AY 2021-22 as well. With regard to the orders of the DRP for previous year's, assessee has submitted that the addition covered in these objections has been considered by the Hon'ble ITAT for earlier years and similar addition has been deleted. The assessee has further submitted that no further appeal has been filed by the Department. Being a factual issue, the AO is hereby directed to verify the contention of the assessee. If no further appeal has been preferred by the Department on merits of the case against order of the Hon'ble Tribunal, then, addition propo....
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.... the order of the AO, the assessee is in appeal before the Tribunal. 4. Before us, ld. AR has contended that the issue is covered in favour of the assessee by the order of the co-ordinate bench for A.Y. 2021-22. The facts and circumstances in this year remain unchanged and this fact has been categorically recorded by the DRP in its order in para 8.3 (reproduced hereinbefore). He has therefore submitted that the issue stands decided in favour of the assessee vide the order dated 05.02.2024 of the co-ordinate bench in ITA No.3279/Del/2023 for A.Y. 2021-22. 4.1 On the other hand, ld. DR has strongly relied on the order of the ld. AO wherein he has sought to distinguish the facts of the assessment year from the earlier years to hold the existence of PE in India. He has specifically placed reliance in paras 18 & 19 (reproduced hereinbefore) of the order wherein ld. AO has recorded his findings. 5. We have heard the rival submissions and perused the material placed on record. We note that the issue regarding existence of PE is a legacy issue in this case. The fact that there is no change in facts and circumstances for earlier years, has been categorically mentioned by the DRP. W....
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....erial on record clearly indicate that the assessee was not in any way involved in onshore activities including installation at the site of ONGC. It appears, just to show that facts in the impugned assessment year are different from A.Y. 202021, the Assessing Officer has attempted to project the facts in a different manner. In the process, has completely misconceived the facts. Not a single piece of evidence has been brought on record by the Assessing Officer to establish that the assessee had any kind of PE in India in the year under consideration. 13. In fact, while dealing with identical nature of dispute in assessee's case in A.Y. 2020-21, the Co-ordinate Bench having examined the relevant facts including the terms and conditions of contract with ONGC has concluded that section 44BB will not be applicable in absence of PE. Further, the Coordinate Bench has held that the Assessing Officer has failed to specify how the PE came into existence and made the offshore supply of components attributable to PE. The Co-ordinate Bench has further held that the Assessing Officer has failed to establish how the consortium member constitutes PE in India. Referring to the decisi....