TaxTMI 
TaxTMI 
2025 (4) TMI 2088
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....as raised the following grounds of appeal: 1. Whether on facts and in circumstances of the case and in law, the Ld. CIT(A) was justified in holding that income of the assessee by way of shipping of cargo through feeder vessel (not chartered, leased or owned by the assessee) would form part of income from operation of ships" and hence taxable in the country of residence under the Article-8 of the DTAA between India and Malaysia." 2. "Whether on facts and in circumstances of the case and in law, the case of the assessee is not distinguishable from that decided by Hon'ble Bombay High Court in DIT Vs Balaji Shipping UK Ltd. (2012) 253 CTR(Bom.) 460], as the term "operation of ships" is a well defined term in Indo- Malaysia....
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....AO erred in holding MISC Agencies India Pvt. Ltd. (MISC Agencies) as a 'permanent establishment (PE') of the assessee in Indía under Article 5 of the Tax Treaty; 4. That the Ld. AO erred in holding MISC Agencies as Fixed Place PE under Article 5(1) of the Tax Treaty; 5. That the Ld. AO erred in holding that the premises of MISC Agencies are being used by the assessee as a 'sales outlet' thereby constituting a PE under Article 5(2)(h) of the Tax Treaty; 6. That the Ld. AO has erred in holding MISC Agencies as an agency PE under Article 5(5) of the Tax Treaty; 7. That the Ld. AO erred in not appreciating that Article 5(7) of the Tax Treaty applies in the present case since MISC Agenci....
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....fficer while passing the assessment order, despite recording the fact that this issue is covered in favour of the assessee, not allowed benefit of Article 8 of DTAA between India and Malaysia. Such facts are recorded in para 10.2 of assessment order and held that he is taking such view as against the order of Tribunal in earlier year, the department has filed appeal before jurisdictional High Court and he wanted to keep the issue alive. The ld. AR of the assessee submits that for A.Y. 2004-05 to 2007-08 and 2009-10, similar relief was allowed in favour of the assessee, which was followed A.Y. 2008-09 in ITA No. 574/Mum/2015 and again in AY 2011-12 in ITA No. 1389/Mum/2016 dated 04.04.2018. The ld. AR of the assessee submits that copy of suc....
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.... and 6503/Mum/2012 (2009-10) dated 16.07.2014. Order dated 16.07.2014 was followed in appeal for A.Y. 2008-09 in ITA No. 574/Mum/2015 in order dated 22.11.2017. We further find that order dated 22.11.2017 in A.Y. 2008-09 was followed in A.Y. 2011-12 in ITA No. 1389/Mum/2016. We again find that while allowing relief to the assessee, the Co-ordinate Bench of this Tribunal followed the decision of jurisdictional High Court DIT (International Taxation) vs Balaji Shipping UK Ltd. (2012) 24 taxmann.com 229 (Bombay) wherein it was held that while considering Article 8 of DTAA between India and UK which deals with the similar voyage undertaken from India held that income attributable to a voyage undertaken from India by availing slot hire facilitie....
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....stments directly connected with the operation of ships or aircraft in international traffic shall be regarded as profits derived from the operation of such ships or aircraft if they are integral to the carrying on of such business, and the provisions of Article 11 shall not apply in relation to such interest. 5. The provisions of paragraph 1 shall also apply to profits from the participation in a pool, a joint business or an international operating agency." 6. We find that provisions of Article '8' India-Malaysia DTAA is similar to Article 8 of DTAA between India and UK. Considering the fact that in earlier years in order dated 16.07.2014 for AY ITA No. 6431/Mum/2012 (2005-06), 6501/Mum/2012 (2006-07), 6502/Mum/2012 (2007-08) an....