ULO Systems LLC, Gurgaon V. ADIT, Dehradun

ITA 5968/DEL/2010

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9254 (ITAT-DELHI)
• Duration Of Justice: 7 year(s) 11 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 17-07-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 28-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G K DHALL
• Keywords: Double taxation relief; Permanent establishment; Advance ruling
• Section: 143(3); 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI D BENCH, NEW DELHI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER, AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO. 5 968 /DEL/201 0 [ASSESSMENT YEAR 2007 - 08] M/S ULO SYSTEMS LLC . VS. A SSISTANT D .I.T C/O S.R. BATLIBOI & CO INTERNATIONAL TAXATION GOLF VIEW CORPORATE TOWER DEHRADUN. N EAR DLF GOLF COURSE, SECTOR 42 GURGAON, HARYANA PAN : AAACU 5048 F DATE OF HEARING : 29 .12.2018 DATE OF PRONOUNCEMENT : 21 .12.2018 ASSESSEE BY : SH RI NAGESHWAR RAO , ADV SH RI PURSHOTTAM ANAND , ADV SHRI SANDIP KAHAIL, ADV REVENUE BY : S HRI G.K. DHALL, CIT - DR ORDER PER N.K. BILLAIYA, AM: - THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST THE ORDER DATED NIL FRAMED U/S 143(3) R.W.S 144C OF THE INCOME - TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT'] PERTAINING TO ASSESSMENT YEAR 20 07 - 08 . 2 2. THE GRIEVANCE OF THE ASSESSEE CAN BE SUMMARIZED AS: (A) WHETHER THERE IS A PE IN INDIA FROM GROUTING ACTIVITIES; (B) ALTERNATIVE PLEA IN RESPECT OF APPLICABILITY OF SECTION 44 BB OF THE ACT TO GROUTING ACTIVITIES ; AND , (C) NON - T AXABILITY OF RECEIPTS IN CONNECTION WITH OFFSHORE SU PPLIES MADE TO INDIAN CUSTOMERS. 3. THE FIRST ISSUE GOES TO THE ROOT OF THE MATTER FOR WHICH IT IS BETTER TO CONSIDER THE RELEVANT ARTICLE OF INDIA UAE DTAA, WHICH READS AS UNDER: ART1CLE 5 - PERMANENT ESTABLISHMENT - 1. FOR THE PURPOSES OF THIS AGREEMENT, THE TERM PERMANENT ESTABLISHMENT MEANS A FIXED PLACE OF BUSINESS THROUGH WHICH THE BUSINESS OF AN ENTERPRISE IS WHOLLY OR PARTLY CARRIED ON. 2. THE TERM PERMANENT ESTABLISHMENT INCLUDES ESPECIALLY : ( A ) A PLACE OF MANAGEMENT; ( B ) A BRANCH ; ( C ) A N OFFICE ( D ) A FACTORY; 3 ( E ) A WORKSHOP; ( 1 ) A MINE, AN OIL OR GAS WELL, A QUARRY OR ANY OTHER PLACE OF EXTRACTION OF NATURAL RESOURCES; ( G ) A FARM OR PLANTATION; ( H ) A BUILDING SITE OR CONSTRUCTION OR ASSEMBLY PROJECT OR SUPERVISORY ACTIVITIES IN CONNECTION THEREWITH, BUT ONLY WHERE SUCH SITE, PROJECT OR ACTIVITY CONTINUES FOR A PERIOD OF MORE THAN 9 MONTHS; ( I ) THE FURNISHI NG OF SERVICES INCLUDING CONSULTANCY SERVICES BY AN ENTERPRISE OF A CONTRACTING STATE THROUGH EMPLOYEES OR OTHER PERSONNEL IN THE OTHER CONTRACTING STATE, PROVIDED THAT SUCH ACTIVITIES CONTINUE FOR THE SAME PROJECT OR CONNECTED PROJECT FOR A PERIOD OR PERIODS AGGREGATING MORE THAN 9 MONTHS WITHIN ANY TWELVE - MONTH PERIOD. 4. THE BONE OF CONTENTION IS IN RELATION TO THE APPLICABILITY OF GENERAL CLAUSE OR SPECIAL CLAUSE (H). 5. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE APPELLANT COMPANY IS ENGAGED IN PROVIDING GROUTING AND PRECAST SOLUTIONS FOR SUBSEA OFF - SHORE CONSTRUCTION INDUSTRY. IT PROVIDES PRODUCTS AND SOLUTIONS TO SUPPORT AND PROTECT SUBSEA PIPELINES, CABLES AND STRUCTURES . 4 6. THE TECHNICALITIES OF GROUTING CAN BE UNDERSTOOD FROM THE FOLLOWING: G ROUT IS A NEAT CEMENT AND WATER MIXTURE WHICH IS USED IN THE OFFSHORE OIL INDUSTRY BECAUSE THE LOGISTICS OF USING MULTIPLE MATERIALS IS NOT PRACTICAL. THEREFORE, TO INJECT SHAPES AND FORMS LIKE ULO PROVIDING FABRIC FORMWORK, A NEAT CEMENT AND WATER MIX (GROUT) IS MIXED AND PUMPED UNDER WATER INTO THE SHAPES OR FORMS TO MAKE THE HARDENING STRUCTURE WHICH SUPPORTS, PROTECTS AND STABILIZES SUBSEA PIPELINES, CABLES AND UMBILICALS. AS THE SEABED IS NOT UNIFORM AND CORROSION OCCURS IF TWO STEEL STRUCTURES ARE TOUCHING EACH OTHER UNDER WATER, THIS IS WHY ULO PROVIDES ITS FABRIC FORMWORK TO SUPPORT PIPELINES, CABLES OR UMBILICAL, SUBSEA TO EITHER SUPPORT SO TH AT THEY DO TO DEFAULT DUE TO BENDING WHERE SPANS OCCURS AND OR NOT TOUCHING AT CROSSING SITUATIONS WHERE AN ELECTROLYTIC ACTION COULD OCCUR CAUSING CORROSION. THE OFFSHORE OIL INDUSTRY HAS ADOPTED THIS POLICY FOR THE PAST 50 YEARS. 5 STABILISATION OF PIPE LINES AND CABLES SUBSEA IS REQUIRED DUE TO THE NATURAL FORCES BEING GREATER THAN THE ORIGINAL CONSTRUCTED OR INSTALLED PIPELINE OR CABLE. GROUTING SERVICES ARE CONSTRUCTION OF PIPELINE SUPPORT SUBSEA WITH THE HELP OF GROUT BAGS. GROUT BAGS SERVE AS A SUPP ORT TO PIPELINES SO THEY REMAIN STABLE ON THE SEA BED. AS A PROCESS CEMENT IS PUMPED INTO GROUT BAGS SUBSEA SO THAT IT WORKS AS A SUPPORT. THE SUBSEA PIPELINES HAVE TO BE PROTECTED TO ENSURE THAT THE LINE DOES NOT CORRODE. PIPELINE PROTECTION HAS TO BE DESIGNED SO THAT THERE IS A SEPARATION GAP BETWEEN THE PROTECTION AND THE PIPELINE. ULO OFFERS SPECIAL SOLUTIONS FOR ANY KIND OF SUBSEA GROUTING PROBLEMS: - PIPELINE AND CABLE CROSSING - PIPELINE AND CABLE STABILIZATION - PIPELINE AND CABLE PROTECTION STABILIZATION AND PROTECTION FOR VARIOUS SUBSEA STRUCTURES - ANTI - SCOUR PROTECTION ULO HAS DEVELOPED MANY SPECIALISED AND UNIQUE SOLUTIONS AND IS CONTINUOUSLY EXPANDING THE HORIZONS OF DEVELOPING SYSTEMS FOR THE EVER CHANGING OFFSHORE CONSTRUCTION INDUSTR Y GLOBALLY. IT PROVIDES PRODUCTS AND SOLUTIONS TO SUPPORT AND PROTECT 6 SUBSEA PIPELINES, CABLES AND STRUCTURES WORLDWIDE; PROVIDED FABRIC FORMWORK, PRECAST CONCRETE, GROUT BAGS & GROUTING SOLUTIONS FOR OFFSHORE OR ONSHORE PIPELINES . 7. IN THE LIGHT OF THE AFOREMENTIONED GROUTING ACTIVITIES, THE APPELLANT STRONGLY CONTENDED THAT THE GROUTING ACTIVITIES CARRIED OUT IN INDIA FALL WITHIN CONSTRUCTION ACTIVITY CONTEMPLATED IN SPECIFIC PROVISION OF ARTICLE 5(2)(H) WHEREAS THE REVENUE AUTHORITIES ARE OF THE FIRM BELIEF TH A T ARTICLE 5(1) SQUARELY APPLIES ON THE FACTS OF THE CASE. 8. THERE IS NO DISPUTE IN SO FAR AS NUMBER OF DAYS SPENT IN INDIA DURING THE YEAR UNDER CONSID ERATION IS CONCERNED. THE DRP HAS DETERMINED THE SAME AT 264 DAYS. THE APPELLANT CONTENDS T HAT ASSUMING YET NOT ACCEPTING THE NUMBER OF DAYS DETERMINED BY THE DRP, THE SAME IS STILL LESS THAN THE STIPULATED PERIOD OF 9 MONTHS/DURATION TEST IN INDI A AS PER ARTICLE 5(2)(H) INDIA - UAE DTAA. THEREFORE, NO PE COMES INTO EXISTENCE. IT WAS FURTHER CONTENDED THAT SERVICES HAVING BEEN RENDERED TO DIFFERENT UNRELATED THIRD PARTY CUSTOMERS IN INDIA, AND CONTRACTS NOT BEING INTER CONNECTED, THEREFORE, IT CANNOT BE SAID THAT T HE APPELLANT HAS A PE IN INDIA. 7 9. THE REVENUE HAS STRONGLY RELIED ON THE DECISION IN THE CASE OF FUGRO ENGINEERS BV IN ITA NO. 2691/DEL/2017. THE FACTS AND FINDINGS OF THE TRIBUNAL READ AS UNDER: FEBV IS A TAX RESIDENT OF NETHERLANDS. DURING THE RELEVANT YEAR, FEBV EXECUTED FOLLOWING CONTRACTS IN INDIA: CONTRACT WITH OIL AND NATURAL GAS LIMITED (ONGC ): THE SCOPE OF WORK UNDER THE ABOVE CONTRACT INVOLVED SOIL INVESTIGATION FOR TWO JACK - UP EXPLORATION DRILLING LOCATIONS IN THE GODAVARI DELTA REGION. THE INVESTIGATIO N INCLUDED DRILLING AND SAMPLING OF TWO BORE HOLES, ON BOARD LABORATORY TESTING AND SPECIALIZED ANALYSIS THROUGH RISK ASSESSMENT TECHNIQUES. FEBVS TOTAL PRESENCE IN INDIA FOR THIS CONTRACT WAS FOR A PERIOD OF 13 DAYS DURING THE YEAR. CONTRACT WITH CAIRN ENEMY INDIA PTV LTD (CAIRN ): THE SCOPE OF WORK UNDER THIS CONTRACT INVOLVED GEOPHYSICAL AND GEOTECHNICAL INVESTIGATION IN THE GULF OF KHAMBAT, OFF THE WEST COAST OF INDIA. AN INTEGRATED SITE INVESTIGATION APPROACH WAS CONTRACT WITH G ANESH BENZOPLAST LIMITED (GBL ) FOR EXECUTION OF WORK ON ONGC'S VESSEL SAMUDRA SARVESHAK : 8 THE SCOPE OF WORK UNDER THE ABOVE CONTRACT INVOLVED PROVISION OF GEOTECHNICAL INVESTIGATIONS AND GEOTECHNICAL SERVICES ON BOARD SAMUDRA SARVESHAK A VESSEL OWN ED BY ONGC. FEBVS TOTAL PRESENCE IN INDIA FOR THIS CONTRACT WAS FOR A PERIOD OF 37 DAYS DURING THE YEAR. IN VIEW OF THE ABOVE SCOPE OF WORK, FEBV CONTENDED THAT THE ACTIVITIES CARRIED ON BY IT WERE COVE RE FUNDER ARTICLE 5(2)0) OF THE INDIA - NETHERLAND TA X TREATY AND AS SERVICES RENDERED IN RESPECT OF EXPLORATION OF NATURAL RESOURCES WERE NOT CARRIED ON FOR MORE THAN 183 DAYS, IT DID NOT CONSTITUTE A PE IN INDIA. RULING OF THE DELHI ITA T BASED ON THE ABOVE FACTS AND DISCUSSIONS BEFORE THE ITA T, IT WAS HELD THAT: FEBV DID NOT CARRY ON ANY INSTALLATION OR STRUCTURAL ACTIVITY AND HENCE IT IS NOT COVERED BY THE PROVISION OF ARTICLE 5(2)(I) OF THE INDIA - NETHER LANDS TAX TREATY. CONSEQUENTLY, PROVISIONS OF ARTICLE 5(1) OF THE INDIA - NETHERLANDS TAX TREATY WO ULD BE APPLICABLE. FOR DETERMINING FIXED PLACE PE, ARTICLE 5(1) OF THE INDIA - NETHERLAND TAX TREATY DOES NOT HAVE PRESCRIBED LENGTH OF TIME/ PRESENCE IN INDIA. 9 HENCE, FEBV WOULD FORM A PE IN INDIA UNDER ARTICLE 5(1) AND NOT UNDER ARTICLE 5(2)(I). 10. I N OUR CONSIDERED OPINION, THIS DECISION IS NOT APPLICABLE ON THE FACTS OF THE CASE IN HAND , IN AS MUCH AS , IN THE CASE OF FUGRO ENGINEERS BV [SUPRA], THE SPECIFIC PROVISIONS WERE NOT APPLICABLE ON THE FACTS OF THE CASE WHEREAS IN THE CASE IN HAND, SPECIFIC ARTICLE 5(2)(H) SQUARELY APPLIES. IT IS A SETTLED LEGAL PRINCIPLE IN LATIN MAXIM GENERALIA SPECIALIBUS NON DEROGANF', WHICH MEANS A GENERAL PROVISION WOULD NOT BE APPLICABLE WHEN SPECIFIC PROVISION IS THERE. 11. THE ASSESSING OFFICER AND THE DRP STRONGLY STATED THAT BY KEEPING THE NUMBER OF DAYS LESS THAN NINE MONTHS, THE ASSESSEE HAS CIRCUMVENTED THE PROVISION OF THE ACT BY MANIPULATING THE STAY OF NUMBER OF DAY IN INDIA. 12. THE DRP WAS OF THE OPINION THAT THE EQUIPMENT OF THE ASSESSEE WAS IN I NDIA FOR AT LEAST 2 6 4 DAYS ON WHICH WORK FOR EXECUTION OF CONSTRU C T I ON WAS CARRIED ON. THUS, THE ASSESSEE HAS EQUIPMENT PE IN INDIA. THIS FINDING OF THE DR P FINDS NO PLACE IN INDIA UAE DT AA AND THE CONC EPT E QUIPMENT PE IN INDIA IS NO WHERE MENTIONED. THE DRP FURTHER OBSERVED THAT EVEN MOVABLES PLACE OF BUSINESS MAY CONSTITUTE 10 A PE EVEN IF THEY ARE TEMPORARY IN LOCATION BUT PERMANENT IN TIME. A PLACE OF BUSINESS WOULD CONSTITUTE A PE EVEN IF IT EXISTS ONLY F OR A VERY SHORT PERIOD , IF TIME AND NATURE OF BUSINESS IS SUCH THAT IT IS CARRIED ON FOR THAT PERIOD OF TIME. THE DRP IS OF THE OPINION THAT THE ASSESSEE SHOULD BE ALLOWED BENEFIT OF LIMITATION CLAUSE ONLY WHEN SUCH ACTIVITIES ARE OCCASIONAL BUT WHEN SUCH ACTIVITIES ARE CARRIED ON FROM YEAR TO YEAR REGULARLY AND PERIODICALLY , THEN IT DOES RAISE A PRESUMPTION THAT IT IS BEING DONE DELIBERATIVELY TO AVOID ESTABLISHMENT OF PE IN INDIA. 13 . IN OUR CONSIDERED OPINION, IT IS THE SETTLED PRINCIPLE OF INTERPRETATION IN VIEW OF VIENNA CONVE NTION OF 1969, THAT DTAA NEEDS TO BE INTERPRETED UBERRIMAE FIDEI WHICH MEANS WITH UTMOST GOOD FAITH . IT MEANS THAT THE ASSESSING OFFICER/DRP ARE REWRITING DTAA. THE CONTENTION OF THE LD. DR THAT THE ASSESSEE DELIBERATELY MANIPULATED LENGTH OF PROJECTS TO ALWAYS KEEP IT UNDER 270 DAYS IS AN ILL - PLACED ALLEGATION ONLY. 14. IN OUR UNDERSTANDING OF THE FACTS, THE OBSERVATION BY THE ASSESSING OFFICER /DRP THAT GROUTING IS NOT A SIMPL E MASONRY WORK AND INVOLVES COMPLEX ASPECTS DOES NOT TAKE IT OUT OF THE CONSTRUCTION 11 ACTIVITIES AS MENTIONED IN ARTICLE 5(2)(H) OF THE INDIA UAE DTAA BECAUSE THERE IS NO BIFURCATION OF SIMPLE AND COMPLEX MASONRY/CONSTRUCTIO N WORK UNDER ARTICLE 5(2)(H) AND ANY FURTHER CLASSIFICATION [AS DONE BY THE REVENUE] WOULD AMOUNT TO REWRITING DTAA. 15. THE LD. DR ALSO RELIED ON THE RULING OF THE AUTHORITY FOR ADVANCE RULINGS A . A . R NO. 1295 /2012 DATED 28.03.2018 . BUT WE FIND THAT THI S RULING IS MORE IN FAVOUR OF THE ASSESSEE THAN THAT OF THE REVENUE. THE RELEVANT PART OF THE RULING IN THE CASE OF SEA BIRD EXPLORATION FZ LLC READS AS UNDER: 6.3.9 IN CONTRAST TO THE ABOVE PROVISIONS IN DIFFERENT DTAAS, IN THE CASE OF THE INDIA UAE DT AA, WHICH CONCERNS US IN THIS CASE, NO SUCH MENTION HAS BEEN MADE WITH REGARD TO ACTIVITIES IN CONNECTION WITH EXPLORATION OR CONNECTED ACTIVITIES. IT IS THEREFORE CLEAR THAT AS FAR AS THE SERVICES AND ACTIVITIES OF THE APPLICANT ARE CONCERNED, THERE IS NO SPECIFIC PROVISION IN 17 AAR/ 1295 / 2012 SEA BIRD EXPLORATION FZ LLC, UAE PARAGRAPH 2 OF ARTICLE 5 OF THE INDIA UAE DTAA, EITHER MENTIONED OR INTENDED, THAT COULD COVER THE SERVICES CARRIED OUT BY THE APPLICANT IN CONNECTION WITH EXPLORATION OF MINERAL O IL ON THE HIGH SEAS, AS IN PARA (5) 12 OF ARTICLE 5 OF THE INDIA SINGAPORE DTAA CITED ABOVE. HENCE, WE GET NO ASSISTANCE FROM THE CASES CITED BY THE APPLICANT AS THE FACTS AND THE IMPACTED PROVISIONS IN THE INSTANT CASE ARE EITHER DIFFERENT OR ARE ABSENT IN T HE INDIA UAE DTAA. IN THESE CIRCUMSTANCES, WE DO NOT FIND ANY SCOPE FOR GETTING INTO THE DEBATE OF INTERPLAY BETWEEN PARAS 1 AND 2 OF ARTICLE 5 OF THE INDIA UAE DTAA, OR TO RESOLVE ANY CONFLICT THEREIN, AS MADE OUT BY THE APPLICANT, SINCE THE SERVICES REND ERED BY THE APPLICANT ARE NOT COVERED BY ANY OF THE SUB PARAS OF PARA 2 OF ARTICLE 5OR ANY OTHER PARA. IF AT ALL, AND IF A BROAD VIEW IS TAKEN, NAMELY THAT THE ACTIVITIES UNDERTAKEN BY THE APPLICANT ARE CONSIDERED AS BEING IN CONNECTION WITH EXTRACTION OF MINERAL OIL, THEN THE CLOSEST PROVISION IN THE INDIA UAE DTAA WOULD BE ARTICLE 5(2)(F), WHEREIN THERE IS NO MENTION OF ANY DURATION, AND HENCE DOES NOT COME TO THE HELP OF THE APPLICANT. 6.3.10 IN THIS VIEW OF THE MATTER, WE HAVE NO OPTION BUT TO GO BACK TO PARAGRAPH 1 OF ARTICLE 5, WHICH PROVIDES AN OVERARCHING DEFINITION OF PERMANENT ESTABLISHMENT. AS WE HAVE SEEN ABOVE, IN THIS PARA ALL THE INGREDIENTS NECESSARY TO CONSTITUTE A PERMANENT ESTAB LISHMENT FIND PLACE IN THE NATURE OF SERVICES UNDERTAKEN BY THE APPLICANT THROUGH ITS VESSELS AND EQUIPMENTS UNDER ITS AGREEMENT WITH ONGC, WITH NO QUALIFICATION OF DURATION. 13 16. IT CAN BE SEEN FROM THE ABOVE THAT WHEN THERE IS NO OPTION IN A GIVEN CASE, THE GENERAL ARTICLE 5(1) WOULD GET ATTRACTED WHICH MEANS THAT WHEN THERE IS AN OPTION [LIKE IN THE PRESENT CASE], SPECIFIC ARTICLE WILL PREVAIL. 17. THERE ARE FEW OTHER DTAAS , NAMELY , AUSTRALIA, THAILAND, CANADA, USA, DENMARK ETC. WHERE RELEVANT PE CLAUSE S ARE SO WORDED THAT THERE IS A SPECIFIC MENTION FOR APPLICATION OF AGGREGATION PRINCIPLE ON ALL, OR EVEN CONNECTED, SITES, PROJECTS OR ACTIVITIES FOR COMPUTATION OF THRESHOLD DURATION TEST. WHEREAS, INDIA - UAE DTAA USES SINGULAR EXPRESSIONS A BUILDING, SI TE OR CONSTRUCTION OR ASSEMBLY PROJECT AND, THEREFORE, IN OUR UNDERSTANDING, AGGREGATION OF DIFFERENT PROJECTS IS NOT ALLOWED BY CONSCIOUS LEGISLATIVE SCHEME. 18. BEFORE US, THE LD. DR REFERRED TO RECORDS OF SEVERAL ASSESSMENT YEARS AND ON THAT BASIS, A LLEGED THAT IN THE ABSENCE OF RELIABLE AND AUTHENTIC DETAILS REGARDING NUMBER OF DAYS SPENT IN INDIA ARTICLE 5(1) WILL APPLY INSTEAD OF ARTICLE 5(2)(H). WE WOULD LIKE TO MENTION HERE THAT THE DRP HAS CONCLUDED THAT 264 DAYS WERE SPENT IN INDIA DURING ASSE SSMENT YEAR 2007 - 08. IN OUR CONSIDERED OPINION, THE LD. DR, AT THIS STAGE, CANNOT IMPROVE THE FINDINGS OF THE DRP. 14 19. ANOTHER OBJECTION OF THE LD. DR WAS THAT THE ASSESSEE INDULGED I N ON - GOING PROJECTS AND, THEREFORE, IT CANNOT BE SAID THAT THE STAY IS LESS THAN NINE MONTHS. WE ARE OF THE OPINION THAT THE ESTABLISHMENT OF PE IN INDIA IS IN RESPECT OF EACH ASSESSMENT YEAR ONLY. MOREOVER, THERE IS NO BAR IN CARRYING ON THE ACTIVITIES YEAR AFTER YEAR. THE DETERMINATION OF EXISTENCE OF PE IN INDIA IS TO BE MADE BY REFERENCE TO PROVISION IN DTAA. IN OUR CONSIDERED OPINION, THE LD. DR WAS TRYING TO SET UP A NEW CASE WHICH IS NOT PERMISSIBLE BY THE DECISION OF THE SPECIAL BENCH OF THE TRI BUNAL IN THE CASE OF MAHINDRA & MAHINDRA VS. DCIT [2009] 313 ITR (AT) 263 . THE LD. DR ALSO CONTENDED THAT THE MATTER SHOULD BE SENT BACK TO THE ASSESSING OFFICER FOR REDETERMINATION OF THE PERIOD OF STAY IN INDIA. 20. IN OUR CONSIDERED OPINION, MULTIPLE OPPORTUNITIES ARE NOT PERMISSIBLE TO ANY AUTHORITY TO EXPERIMENT IN SETTING UP CASE AS HELD BY THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF RAJESH BABUBHAI DAMANIA 251 ITR 541. CONSIDERING THE FACTS OF THE CASE IN TOTALITY, IN THE LIGHT OF INDIA UAE DTAA , WE ARE OF THE CONSIDERED OPINION THAT THERE IS NO PE IN INDIA FOR THE YEAR UNDER CONSIDERATION. FIRST GRIEVANCE IS ACCORDINGLY, ALLOWED. 21. THE ALTERNATIVE PLEA IN RESPECT OF APPLICABILITY OF SECTION 44BB OF 15 THE ACT BECOMES OTIOSE. 22. THIRD ISSUE ALS O GOES INTO OBLIVION SINCE WE HAVE HELD THAT THERE IS NO PE IN INDIA FOR THE YEAR UNDER CONSIDERATION. 23. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA NO. 5968 /DEL/20 10 IS ALLOWED. THE ORDER IS PRONOU NCED IN THE OPEN COURT ON 2 1 .12.2018. SD/ - SD/ - [KULDIP SINGH] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 1 S T DECEMBER, 2018 VL/ COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI 16 DATE OF DICTATION .12.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER