LINKLATERS, MUMBAI V. DDIT (IT) 3(1), MUMBAI

ITA 2297/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8597 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: L
• Next Hearing Date: 03-10-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 04-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JASBIR CHOUHAN
• Assessee Lawyers: J D MISTRY
• Keywords: Transfer pricing; Search and seizure; Opportunity of being heard; Permanent establishment; Initiation of penalty proceedings
• Section: 143(3); 142(1); 5(2); 234B

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL L BENCH, MUMBAI BEFORE SHRI G.S. PANNU , AM AND SHRI RAVISH SOOD , JM ./ I.T.A. NO . 2297 / MUM/ 2014 ( / ASSESSMENT YEAR: 200 9 - 10 , ) M/S. LINKLATERS, C/O DELOITTE HASKINS & SELLS, INDIABULLS F INANCE CENTRE, 32 ND FLOOR, MUMBAI - 400013 / VS. DDIT (IT) 3(1), SCINDIA HOUSE, 1 ST FLOOR, BALLARD ESTATE, MUMBAI. ./ ./ PAN/GIR NO. AABFL 2160 M ( / APPELLANT ) : ( / RESPONDENT ) / APPE LLANT BY : SHRI J.D. MISTRY AND SHRI NIRAJ SHETH / RESPONDENT BY : SHRI JASBIR CHOUHAN / DATE OF HEARING : 03 / 0 2 /201 7 / DATE OF PRONOUNCEMENT : 08 /02/2017 2 ITA NO. 2297 /MUM/2014 (A.Y. 2009 - 10 ) M/S. LINKLATERS / O R D E R PER BENCH : THE PRESENT APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINS T THE ORDER PASSED BY THE CIT(A) - 10, MUMBAI , DATED 31.10.2013 , WHICH ARISES FROM THE ASSESSMENT ORDER PASSED BY THE A.O U / S 143(3) OF THE INCOME TAX ACT, 1961, (FOR SHORT A CT), DATED 28.12.2011 , THEREIN ASSAILING THE ORDER OF THE CIT(A) BY RAISING THE FOLLOWING GROUNDS OF APPEAL BEFORE US : - THE APPELLANT OBJECTS TO THE ORDER DATED OCTOBER, 31, 2013 PASSED BY THE COMMISSI ONER OF INCOME TAX (APPEALS) - 10, MUMBAI FOR THE ASSESSMENT YEAR 2009 - 10, ON THE FOLLOWING AMONG OTHER GROUNDS: - PERMANENT ESTABLISHMENT 1. THE LEARNED COMMISSIONER (APPEALS) E R R ED IN HOLDING THAT THE APPELLANT HAD A PERMANENT ESTABLISHMENT IN INDIA UNDER A RTICLE 5(2)(K) OF THE INDIA - UK TAX TREATY FOR THE ENTIRE YEAR. 2. THE LEARNED COMMISSIONER (APPEALS) ERRED IN REJECTING THE CLAIM OF THE APPELLANT THAT NO INCOME CAN BE TAXED IN INDIA SINCE THE THRESHOLD OF 90 DAYS DID NOT EXCEED DURING THE 12 MONTHS PERIOD R ELATING TO NOVEMBER 2008 TO MARCH 2009. 3. THE LEARNED COMMISSIONER (APPEALS) OUGHT TO HAVE APPRECIATED THAT THE RETURN OF INCOME FILED BY THE APPELLANT DECLARING INCOME AT RS. 12,543 ,155/ - WAS WITHOUT PREJUDICE TO THE CLAIM STATED IN GROUNDS NO 1 AND 2 ABOVE AND HENCE THE LEARNED COMMISSIONER (APPEALS) OUGHT TO HAVE ADJUDICATED THE PLEA IN THE COURSE OF THE APPELLATE PROCEEDINGS. 3 ITA NO. 2297 /MUM/2014 (A.Y. 2009 - 10 ) M/S. LINKLATERS COMPUTATION OF INCOME LIABLE TO TAX IN INDIA 4. THE LEARNED COMMISSIONER (APPEALS) ERRED IN UPHOLDING THE ACTION OF THE ASSESSING O FFICER IN TREATING THE ENTIRE RECEIPT OF GBP 3,302,927 AS LIABLE TO TAX IN INDIA. 5. THE LEARNED COMMISSIONER (APPEALS) OUGHT TO HAVE DIRECTED THE ASSESSING OFFICER TO EXCLUDE THE INCOME EARNED DURING THE PERIOD NOVEMBER 20 0 8 TO MARCH 2009 IN THE ABSENCE OF P ERMANENT ESTABLISHMENT IN INDIA IN TERMS OF ARTICLE 5(2)(K) OF THE INDIA - UK TAX TREATY. 6. THE LEARNED COMMISSIONER (APPEALS) OUGHT TO HAVE DIRECTED THE ASSESSING OFFICER THAT ONLY FEES RELATABLE TO THE SERVICES RENDERED IN INDIA CAN BE TAXED AS ATTRIBUTABLE TO THE PERMANENT ESTABLISHMENT IN INDIA AND UNDER ARTICLE 7 OF THE INDIA - UK TAX TREATY. 7. WITHOUT PREJUDICE, THE LEARNED COMMISSIONER (APPEALS) OUGHT TO HAVE DIRECTED THE ASSESSING OFFICER TO ASSESS THE APPELLANT ONLY IN RESPECT OF FEES OF GBP 183,354 EQUI VALENT TO RS. 13,203,302 / - WHICH IS RELATABLE TO WORK PERFORMED IN INDIA. 8. WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED COMMISSIONER (APPEALS) OUGHT TO HAVE DIRECTED THE ASSESSING OFFICER TO EXCLUDE FEES RELATED TO NON - INDIAN PROJECTS FOR SERVICES RENDERED O UTSIDE INDIA. 9. WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED COMMISSIONER (APPEALS) OUGHT TO HAVE APPRECIATED THAT AS PER EXPLANATION 3 TO SECTION 9(1)(I) ONLY INCOME RELATED TO OPERATIONS CARRIED OUT IN INDIA CAN BE BROUGHT TO TAX AND HENCE NO PART OF INCOME RELATED TO OPERATIONS CARRIED OUTSIDE INDIA CAN BE BROUGHT TO TAX IN INDIA. 4 ITA NO. 2297 /MUM/2014 (A.Y. 2009 - 10 ) M/S. LINKLATERS 10. THE LEARNED COMMISSIONER (APPEALS) ERRED IN NOT APPLYING PROVISIONS OF ARTICLE 7(3) OF THE INDIA - UK TAX TREATY WHILE ADJUDICATING THE ISSUE OF ATTRIBUTION OF INCOME TO THE SERVICE PERMANENT ESTABLISHMENT IN INDIA. 11. THE LEARNED COMMISSIONER (APPEALS) ERRED IN NOT APPLYING DECISION OF THE MUMBAI SPECIAL BENCH IN THE CASE OF CLIFFORD CHANCE 33 TAXMANN.COM 200. THE LEARNED COMMISSIONER (APPEALS) ERRED IN RELYING ON THE DECISION OF THE M UMBAI TRIBUNAL ORDER DATED JULY 16, 2010 IN APPELLANTS OWN CASE FOR THE ASSESSMENT YEAR 1995 - 96 IN UPHOLDING THE ACTION OF THE ASSESSING OFFICER IN T AXING ENTIRE FEES WITHOUT APPRECIATING THE FACT THAT THE OBSERVATION OF THE DIVISIONAL BENCH IN THE APPELL ANTS CASE REGARDING ATTRIBUTION OF INCOME WAS NOT ACCEPTED BY THE MUMBAI SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF CLIFFORD CHANCE (SUPRA). FIXED BASE 12. THE LEARNED COMMISSIONER (APPEALS) ERRED IN NOT SPECIFICALLY HOLDING THAT THE APPELLANT DID NOT H AVE A FIXED BASE IN INDIA FROM WHICH THE APPELLANT WAS PERFORMING ITS ACTIVITIES. 13. THE LEARNED COMMISSIONER (APPEALS) ERRED IN NOT SPECIFICALLY HOLDING THAT THE USE OF HOTELS OR THE PLACES PROVIDED BY CLIENTS TO THE APPELLANTS PARTNERS AND STAFF CANNOT BE CONSIDERED AS AN OFFICE OF PLACE OF WORK FROM WHERE THE APPELLANT PROVIDES SERVICES TO ITS CLIENT. DISBURSEMENTS 14. THE COMMISSIONER (APPEALS) OUGHT TO HAVE SPECIFICALLY DIRECTED THE ASSESSING OFFICER TO DELETE THE ADDITION MADE OF RS. 7,492,280 ON ACCOUNT O F DISBURSEMENTS. 5 ITA NO. 2297 /MUM/2014 (A.Y. 2009 - 10 ) M/S. LINKLATERS INTEREST UNDER SECTION 234B 15. THE COMMISSIONER (APPEALS) OUGHT TO HAVE SPECIFICALLY DIRECTED THE ASSESSING OFFICER TO DELETE INTEREST OF RS. 27,921,562 LEVIED UNDER SECTION 234B . INDIA UK TAX TREATY BENEFIT 16. THE COMMISSIONER (APPEALS) OU GHT TO HAVE SPECIFICALLY HELD THAT THE APPELLANT IS ENTITLED TO THE BENEFIT OF INDIA - UK TAX TREATY. PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) 17. THE LEARNED COMMISSIONER (APPEALS ) ERRED IN NOT QUASHING THE PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT INITIATED BY THE ASSESSING OFFICER. 2 THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A LIMITED LIABILITY PARTN ERSH IP INCORPORATED IN UNITED KINGDOM , OFFERING LEGAL CONSULTANCY TO ITS VARIOUS CLIENTS ALL OVER THE WORLD INCLUDING INDI A. DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE HAD RENDERED LEGAL CONSULTANCY SERVICES IN CONNECTION WITH DIFFERENT PROJECTS TO VARIOUS CONCERNS , BOTH WITH IN AND OUTSIDE INDIA. THE ASSESSEE FILED ITS RETURN OF INCOME AS ON 30.03.2010, DECLARING AN INC OME OF RS. 1,25,43,155/ - . THE ASSESSEE BY WAY OF A NOTE FORMING PART OF THE STATEMENT OF TOTAL INCOME FILED ALONGWITH ITS RETURN OF INCOME, HAD THEREIN CATEGORICALLY STATED AS UNDER: NOTES : - 1. PAN : AABF12160M 2. ADDRESS: ONE SILE STREE T , LONDON, EC2Y S HQ, UNITED KINGDOM. 6 ITA NO. 2297 /MUM/2014 (A.Y. 2009 - 10 ) M/S. LINKLATERS 3. THE ASSESSEE CLAIMS THAT IT IS ENTITLED TO THE BENEFIT OF INDIA - UK TAX TREATY. 4. THE COMMISSIONER (APPEALS) IN EARLIER YEARS HAS HELD THAT AS THE 90 DAYS THRESHOLD HAS BEEN BREACHED THE ASSESSEE FIRM HAS PE IN INDIA AND HENCE INCOME REL ATING TO SERVICES RENDERED IN INDIA ARE TAXABLE UNDER ARTICLE 7(3) OF THE INDIA UK TAX TREATY. THE T RIBUNAL IN ORDER FOR THE ASSESSMENT YEAR 19 95 - 96 HAS HELD THAT IN RESPECT OF INDIAN CLIENT O R INDIAN PROJECTS BOTH SERVICES RENDERED IN INDIA AND OUTSIDE INDIA ARE TAXABLE. THE ASSESSEE HAS PREFERRED APPEAL THE BOMBAY HIGH COURT AGAINST THE T RIBUNAL ORDER DATED JULY 16, 2010. THE ASSESSEE HAS ALSO FILED A MISC ELLANEOUS APPLICATION AGAINST THE AFORESAID T RIBUNAL ORDER DATED JULY 16, 2010. FURTHER IN VIEW OF THE CONFLICTING DECISIONS, THE T RIBUNAL HAS FORMED A SPECIAL BENCH TO DEAL WITH THE ISSUE REGARDING PORTION OF INCOME ATTRIBUTABLE TO THE SERVICE PE IN INDIA. 5. UNDER THE ABOVE CIRCUMSTANCES, AND RELYING ON COMMISSIONER (APPEALS) ORDER IN THE ASSESSEES OWN CASE FOR THE EARLIER YEARS AND VIEW OF THE DECISION OF A PPELLATE TRIBUNAL IN THE BELOW CASES: I. DDIT VS. SET SATELLITE (SINGAPORE) PTE LTD. - 106 ITD 175 MUM II. AIRLINES ROTABLES LTD. U K VS. JT. DIRECTOR OF INCOME TAX - INTERNATIONAL TAXATION 131 TTJ 385 (MUM) T HE ABOVE RETURN IS PREPARED ON THE BASIS THAT INCOME RELATED TO THE SERVICES RENDERED IN INDIA ARE LIABLE TO TAX AS BEING DIRECTLY OR INDIRECTLY ATTRIBUTABLE TO THE PERMANENT ESTABLISHMENT IN TERMS OF ARTICLE 7(3). FURTHE R, U/S 9(1)(I) EXPLANATION 1 OF THE INCOME TAX ACT ONLY INCOME IN RESPECT OF OPERATION S CARRIED OUT IN INDIA IS TAXABLE IN INDIA. 7 ITA NO. 2297 /MUM/2014 (A.Y. 2009 - 10 ) M/S. LINKLATERS 6. WITHOUT PREJUDICE TO THE ABOVE THE ASSESSEE SUBMITS THAT THE THRESHOLD LIMIT OF 90 DAYS MENTIONED IN ARTICLE 5(2)(K)(I) IS NOT EXCEEDED IN ANY TWELVE MONTHS P ERIOD BETWEEN NOVEMBER, 2008 TO MARCH, 20 0 9. HENCE , THE ASSESSEE CLAIMS THAT INCOME IN RESPECT OF SERVICES RENDERED DURING THIS PERIOD IS NOT LIABLE TO TAX IN INDIA. FURTHER ASSESSEE IS OF THE VIEW THAT THE THRESHOLD OF 30 DAYS PROVIDED IN ARTICLE 5(2)(K ) (I I) APPLIES ONLY IN THE SITUATION WHERE THE SERVICES ARE PROVIDED TO AN ASSOCIATED ENTERPRISE LOCATED IN INDIA. 3. THE CASE OF THE ASSESSEE WAS TAKEN UP FOR SCRUTINY PROCEEDING AND NOTICES U/SS. 143(2) AND 142(1) OF THE ACT WERE ISSUED TO THE ASSE SSEE. THAT DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS THE A.O TOOK COGNIZANCE OF THE FACT THAT THE ASSESSE E HAD IN ITS RETURN OF INCOME BY WAY OF A NOTE THEREIN CATEGORICALLY MENTIONED THAT AS THE THRESHOLD LIMIT OF 90 DAYS CONTEMPLATED IN ARTICLE 5 (2)(K)(I) OF THE INDIA U.K. TAX TREATY (FOR SHORT TAX TREATY) WAS NOT EXCEEDED IN ANY TWELVE MONTHS PERIOD BETWEEN NOVEMBER, 2008 TO MARCH, 20 0 9, THEREFORE ITS INCOME IN RESPECT OF SERVICES RENDERED DURING THE SAID PERIOD WERE NOT LIABLE TO TAX IN INDI A. THE A.O HOWEVER BEING OF THE VIEW THAT THE RETURN OF INCOME HAD BEEN PREPARED BY THE ASSESSEE PRESUMABLY ON THE BASIS THAT IT HAD EXCEEDED THE 30 DAYS THRESHOLD LIMIT PROVIDED IN ARTICLE 5(2)(K)(II) OF THE INDIA - U.K TAX TREATY , AND THUS ON ITS OWN HAD OFFERED THE INCOME IN RESPECT OF SERVICES RENDERED IN INDIA FOR TAX, THEREFORE CONCLUDED THAT BY SO DOING THE ASSESSEE HAD HIMSELF ACCEPTED THAT IT HAD A PE IN INDIA DURING THE ENTIRE YEAR UNDER CONSIDERATION . THE A . O FURTHER BEING OF THE VIEW THAT AS T HE PLACE OF ACCRUAL OF INCOME FROM SERVICES IS NOT THE PLACE WHERE THE SERVICES ARE RENDERED, BUT THE PLACE WHERE THE SERVICES ARE UTILIZED , THEREFORE FOR THE SAID 8 ITA NO. 2297 /MUM/2014 (A.Y. 2009 - 10 ) M/S. LINKLATERS REASON SCRAPPED THE CLAIM OF THE ASSESSEE THAT ONLY FEES FOR WORK DO NE IN INDIA AMOUNTING TO 183,354 GBP WAS LIABLE TO BE TAXED IN INDIA AND AFTER TAKING COGNIZANCE OF THE FOLLOWING AMOUNTS : - PARTICULARS AMOUNT (IN GBP) FEES FOR WORK DONE IN INDIA 183,354 GBP FEES FOR WORK DONE OUTSIDE INDIA 31,19,573 GBP TOWARDS DISBURSEMENTS 1,04,045 GBP TOTAL 34,06,972 GBP , THEREIN PROCEEDED WITH AND ASSESSED THE INCOME OF THE ASSESSEE AT RS. 23,30,69,251/ - . 4. THE ASSESSEE BEING AGGRIEVED WITH THE ASSESSMENT ORDER THEREIN CARRIED THE SAME IN APPEAL BEFORE THE CIT(A) . T HAT DURING THE COURSE OF THE AP PELLATE PROCEEDING IT WAS SUBMITTED BY THE ASSESSEE THAT IT HAD OFFERED ITS IN COME TO TAX IN INDIA ONLY PURSUANT TO THE DIRECTIONS OF THE CIT(A) IN ITS CASE FOR THE PRECEDING YEARS, WHEREIN IT WAS HELD THAT AS DURING THE SAID YEAR AS THE THRESHOLD OF 90 D AYS HAD BEEN BREACHED, THEREFORE THE ASSESSEE WAS HELD AS HAVING A PERMANENT ESTABLISHMENT (FOR SHORT PE ) IN INDIA, AND THE INCOME RELATING TO SERVICES RENDERED IN INDIA WERE LIABLE TO BE TAXED UNDER A RTICLE 7(3) OF THE INDIA U. K. TAX T REATY. THE ASSES SEE FURTHER SUBMITTED BEFORE THE CIT(A) THAT ON APPEAL THE T RIBUNAL VIDE ITS ORDER PASSED IN THE CASE OF THE ASSESSEE FOR A.Y. 1995 - 96 HA D HELD THAT IN RESPECT OF INDIAN CLIENT OR INDIAN PROJECTS , BOTH SERVICES RENDERED IN INDIA AND OUTSIDE INDIA WERE LIAB LE TO BE TAXED IN INDIA , WHICH ORDER OF THE TRIBUBAL W A S HOWEVER NOT ACCEPTED BY THE ASSESSEE AND THE SAME HAD BEEN ASSAILED BY WAY OF AN APPEAL BEFORE THE HONBLE BOMBAY HIGH COURT , AS WELL AS A MISC ELLANEOUS 9 ITA NO. 2297 /MUM/2014 (A.Y. 2009 - 10 ) M/S. LINKLATERS APPLICATION AGAINST THE SAID ORDER WAS FILED W ITH THE T RIBUNAL , BOTH OF WHICH WERE PENDING ADJUDICATION . THE ASSESSEE DRAWING THE ATTENTION OF THE CIT(A) TO THE NOTE FORMING PART OF THE STATEMENT OF TOTAL INCOME FILED ALONGWITH THE RETURN OF INCOME, THUS SUBMITTED THAT OFFERING OF THE INCOME RELAT ING TO SERVICES RENDERED BY THE ASSESSEE IN INDIA WAS ONLY PURSUANT TO AND PROM P TED BY THE OBSERVATIONS OF THE APPELLATE AUTHORITIES IN THE CASE OF THE ASSESSEE FOR THE EARLIER YEARS . THE ASSESSEE FURTHER SUBMITTED BEFORE THE CIT(A) THAT AT SR. NO. 6 OF IT S NOTES (SUPRA) FORMING PART OF THE RETURN OF INCOME, IT WAS CATEGORICALLY STATED THAT AS DURING THE YEAR UNDER CONSIDERATION THE THRESHOLD LIMITS OF 90 DAYS MENTIONED IN A RTICLE 5(2)(K)(I) WAS NOT EXC EEDED IN ANY TWELVE MONTHS PERIOD BETWEEN NOVEMBER, 2008 TO MARCH, 20 0 9, THEREFORE THE INCOME OF THE ASSESSEE IN RESPECT OF SERVICES RENDERED DURING THE SAID PERIOD WERE NOT LIABLE TO TAX IN INDIA. THE ASSESSEE AVERRED BEFORE THE CIT(A) THAT PURSUANT TO A CONJOINT READING OF A RTICLE 5(2)(K)(I I ) AND A RTICLE 10 OF THE INDIA U. K. TAX T REATY, AS NO SERVICES WERE BEING PROVIDED BY THE ASSESSEE TO ANY ASSOCIATED ENTERPRISE LOCATED IN INDIA, IT COULD THUS SAFELY BE GATHERED THAT THE PROVISIONS OF THE A RTICLE 5(2)(K)( I I) WERE NOT APPLICABLE TO THE CASE OF THE ASSE SSEE. T HE CIT(A) THOUGH TOOK COGNIZANCE OF THE CLAIM OF THE ASSESSEE THAT DURING THE YEAR UNDER CONSIDERATION AS THE THRESHOLD LIMIT OF 90 DAYS IN ANY TWELVE MONTH PERIOD MENTIONED IN ARTICLE 5(2)(K)(I) HAD EXCEEDED ONLY DURING THE PERIOD APRIL, 2008 TO O CTOBER,2008, THEREFORE THE ASSESSEE COULD NOT BE HELD TO BE HAVING A SERVICE P E IN INDIA FOR THE PERIOD NOVEMBER, 2008 TO MARCH, 2009, BUT HOWEVER BEING OF THE VIEW THAT AS THE RETURN OF INCOME WAS FILED FOR WHOLE OF THE ACCOUNTING YEAR, THEREFORE THE C LAIM OF THE ASSESSEE WAS NOT TENABLE . THE CIT(A) FURTHER OBSERVED THAT AS THE ASSESSEE HAD ON ITS OWN OFFER E D TO TAX ITS INCOME , THUS EVEN ON THE SAID BASIS THE CONTENTION OF THE ASSESSEE THAT 10 ITA NO. 2297 /MUM/2014 (A.Y. 2009 - 10 ) M/S. LINKLATERS IT HAD NO PE IN INDIA UNDER ARTICLE 5(2)(K)(I) FOR THE ENTIRE YEAR, THUS COULD NOT BE ACCEPTED. THE CIT(A) THUS ON THE BASIS OF HIS AFORESAID OBSERVATIONS HELD THAT THE ASSESSEE HAD A PE IN INDIA FOR THE ENTIRE YEAR. 4.1 THE CIT(A) AFTER OBSERVING THAT THE ASSESSEE HAD A PE IN INDIA FOR THE ENTIRE YEAR, THER EIN INTER ALIA DEALT WITH ITS CONTENTIONS , WHICH TO THE EXTENT THE SAME HAD BEEN ASSAILED BY THE ASSESSEE BEFORE US, ARE CULLED OUT AS UNDER: - (I). THE ASSESSEE HAD ALTERNATIVELY SUBMITTED BEFORE THE CIT(A) THAT THE SCOPE AND GAMUT OF TAXABILITY OF ITS INCOME IN INDIA (WHICH CONTENTION WAS RAISED WITHOUT PREJUDICE TO ITS CLAIM THAT IT HAD NO PE IN INDIA DURING THE PERIOD NOVEMBER, 2008 TO MARCH, 2009 ) WAS LIABLE TO BE RESTRICTED ONLY TO THE INCOME OF 183,354 GBP PERTAINING TO WORK PERFORMED BY THE A SSESSEE IN INDIA , AS AGAINST THE ENTIRE RECEIPT OF 34,06,972 GBP THAT HAD BEEN ASSESSED BY THE A.O. THE CIT(A) HOWEVER DID NOT ACCEPT THE CLAIM OF THE ASSESSEE , AND TAKING COGNIZANCE OF THE FACT THAT AS THE SAID ISSUE HAD ALREADY BEEN DECIDED BY THE TRIBUN AL AGAINST THE ASSESSEE IN ITS OWN CASE FOR A.Y. 1995 - 96, THEREFORE REJECTED THE AFORESAID CLAIM OF THE ASSESSEE. (II). TH AT IT WAS FURTHER AVERRED BY THE ASSESSEE BEFORE THE CIT(A) THAT THE AO HAD ERRED IN NOT SPECIFICALLY HOLDING THAT THE ASSESSEE DURIN G THE YEAR UNDER CONSIDERATION DID NOT HAVE A FIXED BASE IN INDIA FROM WHICH IT WAS PERFORMING ITS ACTIVITIES . THE CIT(A) HOWEVER BEING OF THE VIEW THAT AS HE HAD ALREADY TAKEN A VIEW THAT THE ASSSESSEE HAD A SERVICE PE IN INDIA , AS WELL AS THAT A RTICLE 15 OF THE TAX TREATY WAS NOT APPLICABLE TO THE CASE OF THE ASSESSEE, THEREFORE, THE SAID CONTENTION SO RAISED BEFORE HIM WAS RENDERED INFRUCTUOUS , AND ON THE SAID BASIS DISMISSED THE SAME . 11 ITA NO. 2297 /MUM/2014 (A.Y. 2009 - 10 ) M/S. LINKLATERS (III). THE CIT(A) FURTHER DEALING WITH THE CONTENTION OF THE AS SESSEE AS REGARDS LEVY OF INTEREST U/S 234B OF THE A CT , THEREIN REFERRING TO THE JUDGMENT OF THE HONBLE HIGH COURT OF BOMBAY IN THE CASE OF : DIRECTOR OF INCOME TAX, BOMBAY VS M/S. NGC NETWORK ASIA LLC (313 ITR 187) (BOMBAY) , WHICH WAS FOLLOWED BY THE T RIBUNAL IN THE CASE OF THE ASSESSEE FOR A.Y. 1995 - 96, THEREIN DIRECTED THE AO TO DO THE NEEDFUL AS PER THE DIRECTION S GIVEN BY THE T RIBUNAL AS REGARDS THE SAID ISSUE WHILE DISPOSING OF THE APPEAL OF THE ASSESSEE FOR A.Y. 1995 - 96. (IV). T HE CIT(A) LASTLY D EALING WITH THE CHALLENGE OF THE ASSESSEE TO T HE VERY INITIATION OF PENALTY PROCEEDINGS U/S 271(1)(C) IN THE BODY OF THE ASSESSMENT ORDER , THEREIN BEING OF THE VIEW THAT AS THE SAID CONTENTION WAS PREMATURE, THEREFORE DISMISSED THE SAME. TH E CIT(A) THUS I NTER ALIA DELIBERATING ON CERTAIN OTHER ISSUES, INCLUDING THE AFORESAID ISSUES WHICH ARE RELEVANT FOR THE PRESENT APPEAL, THUS PARTLY A LLOWED THE APPEAL OF THE ASSESSEE. 5. THAT BEFORE US THE ASSESSEE HAS ASSAILED THE VERY FINDING OF THE AO THAT THE ASSE SSEE HAD A PE IN INDIA UNDER A RTICLE 5(2)(K) OF THE INDIA U. K. TAX T REATY FOR THE ENTIRE YEAR, WHICH ORDER OF THE AO , AS OBSERVED BY US HEREINABOVE, HAD THEREAFTER BEEN SUSTAINED BY THE CIT(A). THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE (F OR SHORT A.R.) AT THE VERY OUTSET SUBMITTED THAT THOUGH THE FEES FOR WORK DONE IN INDIA BY THE ASSESSEE AMOUNTING TO 183,354 GBP HAD BEEN OFFERED TO TAX BY THE ASSESSEE IN ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION, HOWEVER IN THE NOTES FO RMING PART OF ITS S TATEMENT OF TOTAL I NCOME FILED WITH THE RETURN OF INCOME, IT WAS DULY 12 ITA NO. 2297 /MUM/2014 (A.Y. 2009 - 10 ) M/S. LINKLATERS CLARIF IED THAT THE AFORESAID AMOUNT WAS BEING REFLECTED AS INCOME LIABLE TO TAX IN INDIA IN LI GHT OF THE OBSERVATIONS OF THE CIT (APPE A LS) IN THE CASE OF THE ASSESSEE FOR EARLIER YEARS, WHEREIN IT WAS HELD THAT AS THE 90 DAYS THRESHOLD HAD BEEN BREACHED BY THE ASSESSEE , THEREFORE IT WAS TO BE TAKEN THAT IT HAD A PE IN INDIA AND INCOME RELATING TO SERVICES RENDERED IN INDIA WERE TAXABLE UNDER A RTICLE 7(3) OF THE IND IA U. K. TAX T REATY. THE LD. AR VEHEMENTLY SUBMITTED THAT THE FACT THAT THE INCOME WAS OFFERED FOR TAX IN THE RETURN OF INCOME ONLY IN THE BACKDROP OF THE FINDINGS OF THE CIT(A) IN ITS OWN CASE FOR THE EARLIER YEARS , WAS DULY CLARIFIED AND WAS MENTIONED B EYOND ANY SCOPE OF DOUBT BY THE ASSESSE E AT S R . NO. 5 OF THE N OTES ( S UPRA) FORMING PART OF THE STATEMENT OF TOTAL INCOME . IT WAS FURTHER SUBMITTED BY THE LD. A . R THAT THE FACT THAT DURING THE YEAR UNDER CONSIDERATION THE THRESHOLD LIMIT OF 90 DAYS MEN TIONED IN A RTICLE 5(2)(K)(I) WAS NOT EXCEEDED IN ANY TWELVE MONTHS PERIOD BETWEEN NOVEMBER, 2008 TO MARCH, 2009, AS A RESULT WHEREOF IT WAS CLAIMED THAT THE INCOME IN RESPECT OF SERVICES RENDERED DURING THIS PERIOD WAS NOT LIABLE TO TAX IN INDIA , ALSO FOUN D A CATEGORICAL MENTION AT S.NO. 6 OF THE NOTES (SUPRA) . THUS IN THE BACKDROP OF THE AFORESAID SUBMISSION S, IT WAS AVERRED BY THE LD. A . R THAT THE LOWER AUTHORITIES HAD GRAVELY ERRED IN LO O SING SIGHT OF THE FACT THAT THOUGH THE ASSESSEE HAD REFLECTED TH E FEES FOR WORK DONE IN INDIA OF 183,354 GBP AS ITS INCOME LIABLE FOR TAX IN THE RETURN OF INCOME, BUT HOWEVER THE REASONS FOR SO DOING , AS WERE CLEARLY SPELT OUT IN THE VERY SAME S TATEMENT OF TOTAL INCOME ALONG WITH THE CLAIM THAT THE THRESHOLD LIMIT OF 90 DAYS MENTIONED IN A RTICLE 5(2)(K)(I) HAD NOT EXCEEDED IN ANY TWELVE MONTHS PERIOD BETWEEN NOVERMBER, 2008 TO MARCH, 2009, THEREFORE THE INCOME IN RESPECT OF SERVICES RENDERED DURING THE SAID PERIOD WERE NOT LIABLE TO TAX IN INDIA, HAD MOST CONVENIENT LY AND RATHER WHIMSICALLY BEEN IGNORED BOTH BY THE AO AS WELL AS CIT(A) , LEADING TO DRAWING O F ADVERSE INFERENCES IN THE HANDS OF THE ASSESSEE. THUS TO BE BRIEF AN D 13 ITA NO. 2297 /MUM/2014 (A.Y. 2009 - 10 ) M/S. LINKLATERS EXPLICIT , IT WAS SUBMITTED BY THE LD. AR THAT THE CIRCUMSTANCES LEADING TO OFFERING OF INCO ME FOR TAX IN THE RETURN OF INCOME, AS WELL AS THE FACT THAT THE ASSESSEE HAD NO SERVICE PE DURING THE PERIOD NOVERMBER, 2008 TO MARCH, 2009 , AS A RESULT WHEREOF THE INCOME ARISING FROM SERVICES RENDERED DURING THE SAID PERIOD WERE NOT LIABLE TO TAX IN INDIA , WAS NOT A NEW FACT, BUT RATHER A FACT WHICH FORM ED PART OF THE RETURN OF INCOME OF THE ASSESSEE. THE LD. A . R THEREIN IN ORDER TO FORTIFY HIS CONTENTION THAT THE ASSESSEE HAD NO SERVICE PE DURING THE PERIOD NOVEMBER, 2008 TO MARCH, 2009, THEREIN T OOK US TO P AGE 39 TO 43 OF THE P APER BOOK (FOR SHORT APB ) , WHICH IS A TABLE REFLECTING THE DAY - WISE STAY OF THE 5 EMPLOYEES /PARTNERS OF THE ASSESSEE WHO HAD RENDERED THEIR SERVICES DURING THE FINANCIAL YEAR 2008 - 09 IN INDIA, WHICH THEREIN REVEALED THAT THE TOTAL STAY IN INDIA ON DAY BASIS WORKED OUT TO 58 DAYS . IT WAS AVERRED BY THE LD. A . R THAT EVE N IF THE SAID PERIOD WAS TO BE COMPUTED ON THE BASIS OF M AN - DAYS , THEN ALSO THE SAME WORKED OUT AT 78 DAYS . IT WAS THUS SUBMITTED BY THE LD. A . R THAT IN NEITHER OF THE SITUATION S THE STAY OF THE EMPLOYEES /PARTNERS IN INDIA DURING THE YEAR UNDER CONSIDERATION WAS MORE THAN 90 DAYS . THE LD. A . R FURTHER SUBMITTED THAT THE FURNISHING OF SERVICES BY THE ASSESSEE IN INDIA WAS NOT MORE THAN 90 DAYS WITHIN ANY TWE LVE MONTHS PERIOD BETWEEN NOVEMBER, 2008 TO MARCH, 2009. THE LD. A . R IN ORDER TO FORTIFY HIS INTERPRETATION OF THE TERM MORE THAN 90 DAYS WITHIN ANY TWELVE MONTHS PERIOD , THEREIN EMPHASIZE D THAT THE PURPOSIVE, CONSCIOUS AND INTENTIONAL USAGE OF THE TERM ANY USED THEREIN COULD SAFELY, LOGICALLY AND RATHER INESCAPABLY ONLY BE RELATE D TO THE P REVIOUS YEAR , BECAUSE THE SAME COINCIDES WITH THE PERIOD OF WHICH THE PROFIT OF THE ASSESSEE IS TO BE ASSESSED. IT WAS THUS SUBMITTED BY THE LD. A . R THAT THE LOWER AUTHORITIES HAD IN A WHIMSICAL AND FANCIFUL MANNER SUMMARILY REJECTED THE CLAIM OF THE ASSESSEE THAT IT HAD NO SERVICE PE UNDER A RTICLE 5(2)(K)(I) OF THE INDIA U. K. TAX T REATY , AND HAD MOST ARBITRARILY DRAWN ADVERSE INFERENCES IN 14 ITA NO. 2297 /MUM/2014 (A.Y. 2009 - 10 ) M/S. LINKLATERS THE HANDS OF THE ASSE SSEE. THAT ON THE OTHER HAND THE LD. DEPARTMENTAL REPRESENTATIVE ( FOR SHORT D . R ) SUBMITTED THAT AS THE ASSESSEE HAD ACCEPTED IN ITS RETURN OF INCOME THAT IT HAD A PERMANENT ESTABLISHMENT AND AS SUCH OFFERED ITS INCOME FOR TAX , THEREFORE IT WAS NOT PERMIS SIBLE FOR THE ASSESSEE TO NOW RAISE A CLAIM CONTRARY TO WHAT HAS BEEN CLAIMED BY HIM IN THE RETURN OF INCOME ITSELF. IT WAS THUS FURTHER SUBMITTED BY THE LD. D . R THAT THE CIT(A) HAD RIGHTLY DISCARDED THE CONTENTION OF THE ASSESSEE THAT AS THE THRESHOLD LIM ITS OF 90 DAYS IN ANY TWELVE MONTH PERIOD MENTIONED IN ARTICLE 5(2)(K)(I) HAD EXCEEDED ONLY DURING THE PERIOD APRIL, 2008 TO OCTOBER,2008, THEREFORE THE ASSESSEE COULD NOT BE HELD TO BE HAVING A SERVICE PE IN INDIA FOR THE PERIOD NOVEMBER, 2008 TO MARC H, 2009 , AND THUS THE INCOME FROM SERVICE S RENDERED DURING THE SAID LATTER PERIOD COULD NOT BE TAXED IN INDIA . THE LD. D.R SUBMITTED THAT THE CIT(A) HAD RIGHTLY CONCLUDED THAT THE CLAIM SO RAISED BY THE ASSESSEE WAS NOT TENABLE FOR THE REASON THAT AS THE R ETURN OF INCOME WAS FILED FOR WHOLE ACCOUNTING YEAR, THEREFORE IF THE ASSESSEE IS FOUND TO BE SATISFYING THE PARAMETERS FOR HAVING A SERVICE PE IN INDIA AT ANY POINT OF TIME DURING THE YEAR, THEN IT HAD TO BE UNIFORMLY APPLIED AND CONSTRUED AS SUCH FOR T HE WHOLE OF THE YEAR, COUPLED WITH THE VERY FACT THAT AS THE ASSESSEE HAD ITSELF OFFERED ITS INCOME FOR TAX IN THE RETURN OF INCOME, THEREFORE IT COULD SAFELY AND INESCAPABLY BE GATHERED THAT THE ASSESSEE HA D ACCEPTED THAT IT HAD A PE IN INDIA DURING THE YEAR UNDER CONSIDERATION . 6. WE HAVE HEARD BOTH THE PARTIES, PERUSE D THE MATERIAL AVAILABLE ON RECORD AND HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE ISSUE BEFORE US. WE ARE OF THE CONSIDERED VIEW THAT THOUGH IT IS A MATTER OF FACT THAT THE ASSESSEE IN ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION HAD VOLUNTARILY OFFERED THE FEES FOR WORK DONE IN INDIA OF 183,354 GBP FOR TAX, WHICH AT THE FIRST BLUSH WOULD 15 ITA NO. 2297 /MUM/2014 (A.Y. 2009 - 10 ) M/S. LINKLATERS GIVE AN IMPRESSION THAT THE ASSESSEE HAD ACCEPTED THAT IT HAD A PE IN INDIA, BUT THE N A PERUSAL OF THE STATEMENT OF TOTAL INCOME SO FILED BY THE ASSSESSEE ALONG WITH ITS RETURN OF INCOME THEREIN REVEALS THAT THE ASSESSEE HAD OFFERED THE SAID INCOME FOR TAX IN INDIA , ONLY PURSUANT TO AND PROMPTED BY THE OBSERVATIONS OF THE CIT(A) IN ITS CASE IN THE PRECEDING YEARS , WHICH THUS CANNOT BE TAKEN AS A VOLUNTARY ACCEPTANCE ON THE PART OF THE ASSESSEE THAT IT HAD A PE IN INDIA FOR WHOLE OF THE YEAR UNDER CONSIDERATION. WE FURTHER FIND FROM A PERUSAL OF THE STATEMENT OF TOTAL INCOME FILED BY THE ASSESSEE ALONGWITH ITS RETURN OF INCOME, PLACED AT PAGE 28 OF THE APB , TO WHICH OUR ATTENTION WAS DRAWN BY THE LD. A.R, THAT THE ASSESSEE HAD CATEGORICALLY AND IN UNEQUIVOCAL TERMS STATED THEREIN THAT AS THE THRESHOLD LIMIT OF 90 DAYS MENTIONED IN ARTICLE 5(2)(K)(I) OF THE INDIA U.K. TAX TREATY HAD NOT EXCEEDED IN ANY TWELVE MONTHS PERIOD BETWEEN NOVEMBER, 2008 TO MARCH, 2009, THEREFORE THE INCOME IN RESPECT OF SERVICES RENDERED DURING THE SAID PERIOD WERE NOT LIABLE TO TAX IN INDIA . W E ARE THUS OF THE CONSIDERED OPINION THAT IN THE BACKDROP OF THE AFORESAID FAC T UAL MATRIX , IT CAN SAFELY BE CONCLUDED THAT THE ASSESSEE HAD NEVER ACCEPTED THAT IT HAD A PE IN INDIA DURING THE PERIOD NOVEMBER, 2008 TO MARCH, 2009, BUT RATHER AS A MATTER OF FACT HAD IN CLEAR AND UNAMBIGUOUS TERMS CLAIMED THAT AS THE THRESHOLD LIMIT OF 90 DAYS MENTIONED IN ARTICLE 5(2)(K)(I) OF THE INDIA U.K. TAX TREATY HAD NOT EXCEEDED IN ANY TWELVE MONTHS PERIOD BETWEEN NOVEMBER, 2008 TO MARCH, 2009, THEREFORE THE INCOME IN RESPECT OF SERVICES RENDERED DURING THE SAID PERIOD WERE NOT LIABLE TO TAX IN INDIA. THUS FROM THE AFORESAID FACTS AS THEY SO REMAIN, WE ARE OF THE CONSIDERED VIEW THAT THE LOWER AUTHORITIES HAD FAILED TO APPRECIATE THE FACTS AS EMERGE FROM THE RECORDS WHICH WERE VERY MUCH BEFORE THEM, IN THE RIGHT PERSPECTIVE, AND THUS ERRED IN OBSERVING THAT THE CLAIM SO MADE BY THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS WAS NOT FOUND TO BE IN CONFORMITY WITH THE FACT THAT 16 ITA NO. 2297 /MUM/2014 (A.Y. 2009 - 10 ) M/S. LINKLATERS THE ASSES S EE HAD ON ITS OWN OFFERED ITS INCOME FOR T AX IN THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION. WE ARE OF THE CONSIDERED VIEW THAT T HE S TATEMENT OF TOTAL INCOME APPENDED BY THE ASSSESSEE ALONG WITH ITS RETURN OF INCOME , WHICH THUS FORM S PART OF THE RETURN OF INCOME FILED BY THE ASSESSEE A ND CLEARLY REVEAL S THE STATE OF MIND OF THE ASSESSEE , ALONGWITH THE CIRCUMSTANCES LEADING TO OFFERING OF THE INCOME FOR TAX , HAD TO BE READ IN TOTALITY AND IN LIGHT OF THE CLEAR AND SPECIFIC NOTES AS ARE FOUND MENTIONED THEREIN, BEFORE DRAWING OF ANY INFER ENCES IN THE HANDS OF THE ASSESSEE. WE ARE UNABLE TO PERSUADE OURSELVES TO ACCEPT THE FINDINGS OF THE LOWER AUTHORITIES THAT THE AFORESAID CLAIM WAS RAISED BY THE ASSESSEE ONLY DURING THE ASSESSMENT PROCEEDINGS , AND THE SAME WAS NOT FOUND TO BE IN CONFORM ITY WITH HIS CONDUCT OF OFFERING ITS INCOME FOR TAX IN THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION . WE WOULD NOT HESITATE TO SAY THAT A THOUGHTFUL CONSIDERATION OF THE NOTES FORMING PART OF THE STATEMENT OF TOTAL INCOME (SUPRA), IN ITSELF SUF FICIENTLY REBUTS THE AFORESAID OBSERVATIONS OF THE LOWER AUTHORITIES. THUS TO BE BRIEF AND EXPLICIT, WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE HAD CLEARLY STATED IN ITS RETURN OF INCOME THAT IT HAD NO PE IN INDIA DURING ANY PERIOD BETWEEN NOVEMBER, 2008 TO MARCH, 2009, AND THUS ANY INCOME EARNED FROM ANY SERVICES RENDERED DURING THE SAID PERIOD WERE NOT TAXABLE IN INDIA, AS WELL AS HAD CLEARLY IN THE STATEMENT OF TOTAL INCOME FILED ALONGWITH ITS RETURN OF INCOME HAD DEMONSTRATED THE REASONS DUE TO WHICH THE INCOME WAS BEING OFFERED FOR TAX IN THE RETURN OF INCOME. 6.1 WE ARE OF THE CONSIDERED VIEW THAT THOUGH THE LOWER AUTHORITIES HAD REJECTED THE CLAIM OF THE ASSESSEE THAT IT DID NOT HAVE ANY PE DURING THE PERIOD NOVEMBER, 2008 TO MARCH, 2009, AND RATHER CONCLUDED THAT THE ASSESSEE HAD A PE IN INDIA DURING THE YEAR UNDER CONSIDERATION, HOWEVER WE 17 ITA NO. 2297 /MUM/2014 (A.Y. 2009 - 10 ) M/S. LINKLATERS FIND THAT NO CONCRETE REASONING WHICH COULD JUSTIFY DISLODGING OF THE CLAIM OF THE ASSESSEE AND SUPPORT THE VIEW SO ARRIVED AT BY THE LOWER AUTHORITIES IS DISCERNIBLE FROM THE RESPECTIVE ORDERS OF THE LOWER AUTHORITIES. THAT AS A MATTER OF FACT, THE ORDERS OF THE LOWER AUTHORITIES ARE FOUND TO BE MORE HAUNTED BY THE FACT THAT THE ASSESSEE HAD OFFERED ITS INCOME FOR TAX IN INDIA, RATHER THEN CONTROVERTING THE CONTENTIONS RAISED BY THE ASSESSEE BEFORE THEM IN SUPPORT OF ITS CLAIM . THE OBSERVATIONS OF THE LOWER AUTHORITIES IN CONCLUDING THAT THE ASSESSEE HAD A PE DURING WHOLE OF THE YEAR, IS DEVOID OF ANY REASONING AND IS MUCH OR LESS A SUMMARY REJECTION O F THE CLAIM OF THE ASSESSEE ON THE BASIS OF MISCONCEIVED AND RATHER HALF HEARTED APPRECIATION OF THE FACTS BORNE FROM RECORDS, WHICH FOR THE SAKE OF CLARITY ARE BRIEFLY CULLED OUT AS UNDER: - ARTICLE 5(2)(K)(I) BEFORE A.O : (I). THE ASSESSEE AS OBSERVED BY US HEREINABOVE HAD CATEGORICALLY STATED IN THE NOTES FORMING PART OF THE STATEMENT OF TOTAL INCOME FILED ALONGWITH THE RETURN OF INCOME , THAT AS THE THRESHOLD LIMIT OF 90 DAYS IN ANY TWELVE MONTH PERIOD MENTIONED IN ARTICLE 5(2)(K)(I) HAD EXCEEDED ONLY DURING THE PERIOD APRIL, 2008 TO OCTOBER,2008, THEREFORE THE ASSESSEE COULD NOT BE HELD TO BE HAVING A SERVICE PE IN INDIA FOR THE PERIOD NOVEMBER, 2008 TO MARCH, 2009. THE SAID CLAIM WAS TH E REAFTER RAISED BY THE ASSESSEE BEFORE THE A.O DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, WHO THOUGH TOOK COGNIZANCE OF THE SAID CLAIM AND REPRODUCED THE SAME IN THE BODY OF THE ASSESSMENT ORDER, BUT THEREAFTER INSTEAD OF ADJUDICATING THE SAID CLAIM OF THE ASSESSEE ON MERITS, RATHER JUSTIFIED THE REJECTION OF THE SAME FOR THE REASON THAT THE ASSESSEE HAD ON ITS OWN OFFERED ITS INCOME FOR TAX IN THE RETURN OF INCOME, WHICH CONDUCT OF THE 18 ITA NO. 2297 /MUM/2014 (A.Y. 2009 - 10 ) M/S. LINKLATERS ASSESSEE , AS PER THE A.O , PROVED THAT IT ACCEPTED THAT IT HAD A PE IN I N DIA DURING THE YEAR UNDER CONSIDERATION. THE A. O STILL FURTHER IS FOUND TO HAVE JUSTIFIED THE EXISTENCE OF PE' BY ASSUMING THAT THE ASSESSEE HAD EXCEEDED THE 30 DAYS THRESHOLD LIMIT PROVIDED IN ARTICLE 5(2)(K)(II) OF THE INDIA - U.K TAX TREATY. THUS TO BE BRIEF AND EXPLICIT, THE CONTENTION OF THE ASSESS EE THAT AS THE THRESHOLD LIMITS OF 90 DAYS IN ANY TWELVE MONTH PERIOD MENTIONED IN ARTICLE 5(2) (K)(I) HAD NOT EXCEEDED DURING ANY PERIOD BETWEEN NOVEMBER, 2008 TO MARCH, 2009, THEREFORE IT COULD NOT BE HELD TO BE HAVING A SERVICE PE IN INDIA FOR THE SAI D PERIOD , HAD REMAINED UNADJUDICATED ON THE PART OF THE A.O. BEFORE CIT(A) : (1). THE CIT(A) WHILE DISPOSING OF THE APPEAL WRONGLY OBSERVED AS UNDER ( PAGE 7 PARA 16 ): - EVEN I ALSO FIND THAT IN THE RETURN OF INCOME, THE APPELLANT HAD OFFERED TO TAX THE INCOME ON THE BASIS THAT IT HAD SERVICE PE IN INDIA UNDER ARTICLE 5(2 ) (K)(I) FOR THE ENTIRE YEAR , WHICH OBSERVATION OF THE CIT(A) IN LIGHT OF THE CLEAR MENTION BY THE ASSESSEE IN THE STATEMENT OF TOTAL INCOME FILED WITH THE RETURN OF INCOME, AS U NDER: - 6. WITHOUT PREJUDICE TO THE ABOVE THE ASSESSEE SUBMITS THAT THE THRESHOLD LIMIT OF 90 DAYS MENTIONED IN ARTICLE 5(2)(K)(I) IS NOT EXCEEDED IN ANY TWELVE MONTHS PERIOD BETWEEN NOVEMBER, 2008 TO MARCH, 2009. HENCE, THE ASSESSEE CLAIMS THAT INCOM E IN RESPECT OF SERVICES RENDERED DURING THIS PERIOD IS NOT LIABLE TO TAX IN INDIA. 19 ITA NO. 2297 /MUM/2014 (A.Y. 2009 - 10 ) M/S. LINKLATERS , IS THUS FOUND TO BE ABSOLUTELY PERVERSE AND CONTRARY TO THE FACTS EMERGING FROM THE RECORDS. (2). THE CIT(A) ALIKE THE A.O, INSTEAD OF ADJUDICATING THE CLAIM OF THE ASSESSEE THAT IT HAD NO PE DURING THE PERIOD NOVEMBER, 2008 TO MARCH, 2009 ON THE BASIS OF A WELL REASONED AND SPEAKING ORDER, WAS MORE PREJUDICED FOR THE REASON THAT AS THE ASSESSEE HAD VOLUNTARILY OFFERED ITS INCOME FOR TAX IN THE RETURN OF INCOM E, THUS IT COULD BE CONCLUDED THAT THE ASSESSEE ACCEPTED THAT IT HAD A SERVICE PE IN INDIA DURING THE YEAR UNDER CONSIDERATION. (3). THE CIT(A) DISCARDED THE AFORESAID CLAIM OF THE ASSESSEE THAT IT HAD NO PE IN INDIA DURING THE PERIOD NOVEMBER, 2008 TO MARCH, 2009, BY MERELY STATING THAT THE INCOME TAX RETURN IS TO BE FILED FOR WHOLE ACCOUNTING YEAR, I.E 01.04.2008 TO 31.03.2009 IN THE CASE OF THE ASSESSEE . WE ARE PAINED TO OBSERVE THAT THERE IS NEITHER ANY CLARITY, NOR A STRONG REASONING IN THE OBSE RVATIONS OF THE CIT(A) WHICH COULD GO TO JUSTIFY REJECTION OF THE AFORESAID CLAIM OF THE ASSESSEE . THE CONTENTION OF THE ASSESSEE THAT IT HAD NO PE DURING THE PERIOD NOVEMER, 2008 TO MARCH, 2009, WHICH WE FIND HAD BEEN DEMONSTRATED AT LENGTH BY THE ASSES SEE BEFORE THE CIT(A) ON THE BASIS OF STRONG REASONINGS, COUPLED WITH THE FACT THAT ANY INTERPRETATION TO THE CONTRARY AS AGAINST THAT ADOPTED BY THE ASSESSEE, WOULD LEAD TO INCONGRUOUS AND ILLOGICAL RESULTS, WE FIND HAD NOT BEEN DEALT WITH BY THE CIT(A) A T ALL. THUS TO BE BRIEF AND EXPLICIT, THE CIT(A) ON THE BASIS OF A NON - SPEAKING AND UNREASONED ORDER HAD REJECTED THE CLAIM OF THE ASSESSEE THAT IT HAD NO PE FOR THE PERIOD NOVEMBER, 2008 TO MARCH, 2009, AND AS SUCH NO INCOME EARNED BY IT FROM SERVICES R ENDERED DURING THE SAID PERIOD WAS LIABLE TO BE TAXED IN INDIA. 20 ITA NO. 2297 /MUM/2014 (A.Y. 2009 - 10 ) M/S. LINKLATERS ARTICLE 5(2)(K)(II) BEFORE A.O : (I). THOUGH THE ASSESSEE HAD CATEGORICALLY CLAIMED IN THE STATEMENT OF TOTAL INCOME FILED ALONGWITH THE RETURN OF INCOME, AS UNDER: FURTHER AS SESSEE IS OF THE VIEW THAT THE THRESHOLD OF 30 DAYS PROVIDED IN ARTICLE 5(2)(K)(II) APPLIES ONLY IN THE SITUATION WHERE THE SERVICES ARE PROVIDED TO AN ASSOCIATED ENTERPRISE LOCATED IN INDIA. , HOWEVER THE A.O ON ITS OWN ASSUMED THAT THE ASSESSEE HAD PR EPARED THE RETURN OF INCOME ON THE BASIS THAT IT HAD EXCEEDED THE 30 DAYS THRESHOLD LIMIT PROVIDED IN ARTICLE 5(2)(K)(II). THUS , THE A.O ON THE BASIS OF PERVERSE OBSERVATIONS , WHICH AS A MATTER OF FACT ARE CONTRARY TO THE CLAIM RAISED BY THE ASSESSEE IN IT S RETURN OF INCOME THAT ARTICLE 5(2)(K)(II) WAS NOT APPLICABLE IN ITS CASE, HAD THUS IN A WHIMSICAL A ND FANCIFUL MANNER THEREIN MOST ARBITRARILY CONCLUDED THAT THE ASSESSEE WAS HAVING A PE IN INDIA AS PER ARTICLE 5(2)(K)(II) OF THE INDIA - U.K TAX TREATY. BEFORE CIT(A) : (I). THE ASSESSEE HAD AVERRED BEFORE THE CIT(A) THAT ON THE BASIS OF A CONJOINT READING OF THE PROVISIONS OF ARTICLE 5(2)(K)(II) R.W ARTICLE 10 AND ARTICLE 3(H), IT COULD INESCAPABLY BE GATHERED BEYOND ANY SCOPE OF DOUBT THAT ARTICLE 5 (2)(K)(II) WOULD COME INTO PLAY ONLY WHERE THE ENTERPRISE OF A CONTRACTING STATE OR THE PERSONS INVOLVED THEREIN PARTICIPATE DIRECTLY OR INDIRECTLY IN THE MANAGEMENT, CONTROL OR CAPITAL OF AN ENTERPRISE OF THE 21 ITA NO. 2297 /MUM/2014 (A.Y. 2009 - 10 ) M/S. LINKLATERS OTHER CONTRACTING STATE. IT WAS THUS SUBMITTE D BEFORE THE CIT(A) THAT AS ARTICLE 10 DOES NOT REFER TO RELATED PARTIES RESIDENT OF SAME CONTR A CTING STATE OR A RELATED PARTY RESIDENT OF A THIRD CONTRACTING STATE , I.E OTHER THAN INDIA AND U.K, THEREFORE IT COULD SAFELY BE DISCERNED THAT THE PROVISIONS O F ARTICLE 5(2)(K)(II) WERE NOT APPLICABLE TO THE CASE OF THE ASSESSEEE. WE HOWEVER FIND THAT DESPITE DRAWING OF ADVERSE INFERENCES ON THE PART OF THE A.O , WHO ON THE BASIS OF FINDINGS ARRIVED AT THE BACK OF THE ASSESSEE HAD MOST ARBITRARILY ASSUMED THAT TH E RETURN MUST HAVE BEEN PREPARED BY THE ASSESSEE ON THE BASIS THAT IT HAD A PE IN INDIA AS PER ARTICLE 5(2)(K)(II), WITHOUT AFFORDING ANY OPPORTUNITY OF BEING HEARD TO THE ASSESSEE ON THE SAID ISSUE, DESPITE CLEAR AND CATEGORICAL AVERMENT BY THE ASSESSEE IN THE STATEMENT OF TOTAL INCOME FILED WITH THE RETURN OF INCOME THAT ARTICLE 5(2)(K)(II) WAS NOT APPLICABLE IN ITS CASE, AS WELL AS CLEAR REBUTTAL OF THE APPLICABILITY OF THE SAME ON THE BASIS OF EXHAUSTIVE SUBMISSIONS FILED BEFORE THE CIT(A), THE SAME H AD HOWEVER NOT BEEN ADVERTED TO AND ADJUDICATED BY THE LATTER. 6.2 WE ARE OF THE CONSIDERED VIEW THAT IN LIGHT OF OUR AFORESAID OBSERVATIONS, ON THE ONE HAND THE CONTENTION S OF THE LD. A . R IN SUPPORT OF HIS SPECIFIC CLAIM THAT THE PROVISIONS OF A RTICLE 5(2)(K)(I) OF THE TAX TREATY WERE NOT APPLICABLE IN ITS CASE, WAS NOT AT ALL ADVERTED TO AND ADJUDICATED BY THE A.O, WHILE FOR THE CIT(A) ALSO FALLING SHORT OF WORDS HAD CHOSEN TO REJECT THE SAID CLAIM OF THE ASSESSEE ON THE BASIS OF HIS FINDING S W HICH ARE NOT FOUND TO BE HAPPILY WORDED AND CAN SAFELY BE CHARACTERIZED AS NOTHING SHORT OF VAGUE OBSERVATIONS WHICH HAD CULMINATED INTO A N UNREASONED AND A NON - SPEAKING ORDER. WE FIND THAT THE CONTENTIONS RAISED BY THE ASSESSEE AT LENGTH BEFORE THE CIT(A) IN SUPPORT OF ITS CLAIM UNDER CONSIDERATION HAD 22 ITA NO. 2297 /MUM/2014 (A.Y. 2009 - 10 ) M/S. LINKLATERS BEEN PUT TO REST BY THE CIT(A) ON THE BASIS OF VAGUE OBSERVATIONS AND A NON - SPEAKING ORDER . WE ARE SAD TO OBSERVE THAT THE CIT(A) INSTEAD OF MEETING OUT THE CONTENTIONS OF THE ASSESSEE AS WERE RAISED BEFORE HIM, ON MERITS, HAD RATHER CHARACTERIZED THE SAME AS ABSURD , AND SHIRKED FROM THE STATUTORY OBLIGATION OF DISPOSING OF THE SAME ON THE BASIS OF A WELL REASONED AND SPEAKING ORDER. THUS THE MODUS OPERANDI SO ADOPTED BY THE CIT(A) IN DEALING WITH AND DISP OSING OF THE CLAIM OF THE ASSESSEE AND THE CONTENTIONS RAISED IN SUPPORT THEREOF, THUS DOES NOT INSPIRE MUCH CONFIDENCE. THAT WE ARE AFRAID TO SAY THAT THE CLAIM OF THE ASSESSEE THAT IT DID NOT HAD ANY PE IN INDIA DURING THE PERIOD NOVEMBER, 2008 TO MARC H, 2009 A ND THE CONTENTIONS RAISED IN SUPPORT THEREOF, ON ACCOUNT OF A VAGUE AND NON - SPEAKING ORDER PASSED BY THE CIT(A) , DID NEITHER SEE THE LIGHT OF THE DAY, NOR HAD BEEN BROUGHT TO A LOGICAL END. WE WOULD FURTHER FOR THE SAKE OF CLARITY HEREIN DISPEL TH E OBSERVATIONS OF THE LOWER AUTHORITIES , WHO WE FIND INSTEAD OF ADJUDICATING THE CLAIM OF THE ASSESSEE THAT IT WAS NOT HAVING A PE IN INDIA AS PER ARTICLE 5(2)(K) OF THE INDIA - U.K TAX TREATY, ON THE BASIS OF A WELL REASONED AND SPEAKING ORDER, HAD RATHER EMPHASIZED MORE ON THE FACT THAT FROM THE VERY OFFERING BY THE ASSESSEE OF ITS INCOME FOR TAX IN THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION, IT COULD SAFELY BE INFERRED THAT THE ASSESSEE HAD ACCEPTED THAT IT HAD A PE DURING WHOLE OF THE YEAR UNDER CONSIDERATION, WE MAY HEREIN CLARIFY IS A SELF SUITING MISCONCEPTION ADOPTED BY THE LOWER AUTHORITIES. WE ARE OF THE CONSIDERED VIEW THAT THE LOWER AUTHORITIES HAD GRAVELY ERRED BY FAILING TO APPRECIATE THAT THOUGH THE ASSESSEE HAD OFFERED ITS INCOME FOR TAX IN THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION, HOWEVER THE SAME AS OBSERVED BY US AT LENGTH HEREINABOVE, WAS REQUIRED TO BE CONSIDERED IN THE BACKDROP OF THE NOTES AS WERE FOUND MENTIONED IN THE STATEMENT OF TOTAL 23 ITA NO. 2297 /MUM/2014 (A.Y. 2009 - 10 ) M/S. LINKLATERS INCOME FILED BY TH E ASSESSEE ALONGWITH ITS RETURN OF INCOME, FROM WHERE IT COULD SAFELY BE GATHERED THAT THE INCOME HAD BEEN OFFERED FOR TAX BY THE ASSESSEE IN LIGHT OF THE OBSERVATIONS OF THE CIT(A) ARRIVED AT IN ITS CASE FOR THE PRECEDING YEARS AND CERTAIN OTHER JUDICIAL PRONOUNCEMENTS AS DID HOLD THE GROUND AT T H E RELEVANT POINT OF TIME. WE FIND THAT THOUGH INTERESTINGLY THE FACT THAT THE ASSESSEE HAD OFFERED ITS INCOME FOR TAX HAS BEEN TAKEN COGNIZANCE OF BY THE LOWER AUTHORITIES FOR SUPPORTING OR RATHER ARRIVING AT ADV ERSE INFERENCES IN THE HANDS OF THE ASSESSEEE, HOWEVER MOST CONVENIENTLY THE FACT THAT THE ASSESSEE HAD CATEGORICALLY STATED THAT IT HAD NO PE IN INDIA FOR THE PERIOD NOVEMBER, 2008 TO MARCH, 2009 AS PER ARTICLE 5(2)(K)(I), READ IN LIGHT OF THE REASONS O N THE BASIS OF WHICH SUCH A CONCLUSION WAS ARRIVED AT, AS WELL AS THE CATEGORICAL AVERMENT OF THE ASSESSEE THAT THE PROVISIONS OF ARTICLE 5(2)(K)(II) WERE NOT APPLICABLE IN ITS CASE, ALL OF WHICH FACTS WERE CLEARLY DISCERNIBLE FROM THE STATEMENT OF TOTAL INCOME FILED BY THE ASSESSEE ALONGWITH ITS RETURN OF INCOME, HAD MOST CONV ENIENTLY B EEN IGNORED BY THE LOWER AUTHORITIES IN ORDER TO FACILITATE DRAWING OF SELF SUITING ADVERSE INFERENCES IN THE HANDS OF THE ASSESSEE. THUS IN THE BACKDROP OF THE AFORESAID FACTS AS THEY SO REMAIN, SPECIFICALLY THE FACT THAT THE ASSESSEE HAD RAISED EXHAUSTIVE AVERMENTS BEFORE THE LOWER AUTHORITIES IN SUPPORT OF ITS CONTENTION THAT IT HAD NO PE U/S 5(2)(K) OF THE INDIA - U.K TAX TREATY FOR THE PERIO D NOVEMBER, 2008 TO MARCH, 2009 , SPECIFICALLY WHEN SUCH A CLAIM AS OBSERVED BY US HEREINABOVE , WAS CLEARLY DISCERNIBLE FROM A PERUSAL OF THE STATEMENT OF TOTAL INCOME , WHEREIN THE ASSESSEE HAD CATEGORICALLY CLAIMED THAT IT WAS NOT HAVING A PE FOR THE AFORESAID PERIOD, EITHER UN DER ARTICLE 5(2)(K)(I) OR ARTICLE 5(2)(K)(II), AND HAD SUBSTANTIALLY AT LENGTH DURING THE COURSE OF PROCEEDINGS BEFORE THE A.O AS WELL AS THE CIT(A) THEREIN FORTIFIED HIS 24 ITA NO. 2297 /MUM/2014 (A.Y. 2009 - 10 ) M/S. LINKLATERS CONTENTION, WHICH INTERPRETATION AND EXPLANATION OF THE ASSESSEE TO OUR UNDERSTANDING COULD NOT HAVE BEEN SUMMARILY REJECTED AND SCRAPPED ON THE BASIS OF A VAGUE, UNREASONED AND NON - SPEAKING ORDER, WHICH WE ARE SAD TO OBSERVE HAD AS A MATTER O F FACT HAPPENED IN THE PRESENT CASE . WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE FACTS OF HE C ASE AND IN LIGHT OF THE VERY FACT THAT THE LOWER AUTHORITIES HAD FAILED TO ADDRESS THE EXHAUSTIVE SUBMISSIONS RAISED BY THE ASSESSEE BEFORE THEM AND PASS A WELL REASONED AND SPEAKING ORDER, THUS ARE UNABLE TO PERSUADE OURSELVES TO SUBSCRIBE TO SUCH NON - SP EAKING ORDERS OF THE LOWER AUTHORITIES . WE ARE OF THE CONSIDERED VIEW THAT IN THE BACKDROP OF THE FACT THAT THE LOWER AUTHORITIES HAD FAILED TO ADDRESS AND ADJUDICATE THE CONTENTIONS RAISED BY THE ASSESSEE BEFORE THEM, AND HAD RATHER MOST ARBITRARILY HUSHE D THROUGH THE MATTER, AND ALSO NOT BEING OBLIVIOUS OF THE FACT THAT THE CLAIM RAISED BY THE ASSESSEE THAT IT HAD NO PE IN INDIA AS PER ARTICLE 5(2)(K) IN ITSELF WOULD REQUIRE ADJUDICATION AFTER PERUSING AND VERIFYING THE F ACTS AS AVERRED BY THE LD. A.R BEFORE US, WE THEREFORE IN ALL FAIRNESS AND IN THE VERY INTEREST OF JUSTICE RESTORE THE MATTER TO THE FILE OF A.O FOR FRESH ADJUDICATION . THE A.O SHALL DURING THE COURSE OF THE SET ASIDE PROCEEDINGS THEREIN ADJUDICATE UPON THE ISSUE AS REGARDS THE EXISTENC E OF A PE IN INDIA OF THE ASSESSEE DURING THE PERIOD NOVEMBER, 2008 TO MARCH, 2009, AFTER TAKING DUE COGNIZANCE OF AND DEALING WITH THE SUBMISSIONS WHICH WERE RAI SED BY THE ASSESSEE DURING THE COURSE OF THE ORIGINAL ASSESSMENT PROCEEDINGS, AS WELL AS DUR ING THE COURSE OF THE APPELLATE PROCEEDINGS. WE WILL MINCE NO WORDS IN DIRECTING THE A.O TO ADJUDICATE THE ISSUE UNDER CONSIDERATION AFTER ADDRESSING AND DEALING WITH ALL THE CONTENTIONS OF THE ASSESSEE ON THE BASIS OF A WELL REASONED AND A SPEAKING ORDER . N EEDLESS TO SAY, THE A.O SHALL AFFORD REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE DURING THE 25 ITA NO. 2297 /MUM/2014 (A.Y. 2009 - 10 ) M/S. LINKLATERS COURSE OF THE SET ASIDE PROCEEDINGS , AND THE ASSESSEE SHALL REMAIN AT A LIBERTY TO FURNISH SUBMISSIONS OR LEAD FRESH DOCUMENTARY EVIDENCE IN SUPPORT OF HIS CONTENTION S DURING THE COURSE OF THE SET ASIDE PROCEEDINGS. THE GROUNDS OF APPEAL NO(S). 1 TO 3 SO RAISED BY THE ASSESSEE ARE THUS ALLOWED FOR STATISTICAL PURPOSES. 7. THAT AS REGARDS THE OTHER GROUNDS OF APPEAL , I.E G ROUND OF APPEAL NO (S) . 4 TO 1 9 SO RAISED BY THE ASSESSEE BEFORE US, WE ARE OF THE CONSIDERED VIEW THAT AS THE SUBSTANTIVE ISSUE INVOLVED IN THE PRESENT CASE, I.E AS TO WHETHER THE ASSESSEE AS PER A RTICLE 5(2)(K) OF THE INDIA U.K. TAX TREATY WAS HAVING A PE IN INDIA DURING THE PER IOD NOVEMBER, 2008 TO MARCH, 2009, OR NOT, HAS BEEN RESTORED BY US TO THE FILE OF THE A.O FOR FRESH ADJUDICATION A ND THE FATE OF THE SAME WILL HAVE A SUBSTANTIAL BEARING ON THE OTHER GROUNDS OF APPEAL SO ASSAILED BY THE ASSESSEE BEFORE US, WE THEREFORE REF RAIN FROM ADJUDICATING THE SAID RESPECTIVE GROUNDS OF APPEAL AT THIS STAGE, AND IN ALL FAIRNESS AND IN THE VERY INTEREST OF JUSTICE RESTORE THE SAME FOR FRESH ADJUDICATION TO THE FILE OF THE A . O. THE A.O IS HEREIN DIRECTED THAT AFTER ADJUDICATING THE ISSUE AS TO WHETHER THE ASSESSEE HAD A PE IN INDIA , OR NOT, DURING THE AFORESAID PERIOD, HE SHALL THEREAFTER PROCEED WITH AND ADJUDICATE THE REMAINING ISSUES EMERGING FROM THE GROUND OF APPEAL NO(S). 4 TO 19 AS HAD BEEN RESTORED BY US FOR THE PURPOSE OF FR ESH ADJUDICATION TO HIS FILE. WE THUS IN ALL FAIRNESS , AND IN THE VERY INTEREST OF JUSTICE RESTORE THE MATTER TO THE FILE OF A.O FOR FRESH ADJUDICATION OF THE ISSUES PERTAINING T O AND EMERGING FROM THE GROUND OF APPEAL NO.(S). 4 TO 19 SO ASSAILED BY THE ASSESSEE BEFORE US. THE A.O IS HEREIN DIRECTED TO PASS A SPEAKING ORDER AS REGARDS THE ISSUE UNDER CONSIDERATION, AFTER DULY CONSIDERING ALL THE CONTENTIONS OF THE ASSESSEE. 26 ITA NO. 2297 /MUM/2014 (A.Y. 2009 - 10 ) M/S. LINKLATERS NEEDLESS TO SAY, THE A.O SHALL AFFORD REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE DURING THE COURSE OF THE SET ASIDE PROCEEDINGS AND THE ASSESSEE SHALL REMAIN AT A LIBERTY TO FURNISH SUBMISSIONS OR LEAD FRESH DOCUMENTARY EVIDENCE IN SUPPORT OF HIS CONTENTIONS IN SUPPORT OF THE AFORESAID ISSUES DURING THE COURSE OF THE SET ASID E PROCEEDINGS. THE GROUNDS OF APPEAL NO(S). 4 TO 19 SO RAISED BY THE ASSESSEE ARE THUS ALLOWED FOR STATISTICAL PURPOSES. 8. THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORD ER PRONOUNCED IN THE OPEN COURT ON 08 /02/2017 SD/ - SD/ - ( G.S PANNU ) ( RAVISH SOOD ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 08 . 02.20 17 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. () / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I L E / BY ORDER / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI