RENTERS LIMITED, V. C.I.T. SPL RG-12,

MA 736/MUM/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6993 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-09-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: L
• Assessment Year: misc
• Appeal Filed On: 10-12-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: C G K NAIR
• Assessee Lawyers: DASTUR
• Keywords: Business income; Double taxation relief; Permanent establishment; Advance ruling
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH L BEFORE SHRI RS. S. SYAL, ACCOUNTANT MEMBER AND SHRI N.V. VASUDEVAN, JUDICIAL MEMBER M.A. NO.736/MUM/2010 (IN ITA NO.1325/MUM/01) (ASSESSMENT YEAR : 1997-98) M/S.REUTERS LIMITED CONSTRUCTION HOUSE, 3 RD FLOOR, WALCHAND HIRACHAND MARG, BALLARD ESTATE, MUMBAI-400 001 PAN/GIR NO.JCIT SR 12/18-R VS. JOINT COMMISSIONER OF INCOME TAX (SPECIAL RANGE 12), AAYAKAR BHAVAN, MUMBAI. APPELLANT. RESPONDENT. ASSESSEE BY : SHRI DASTUR. REVENUE BY : SHRI C.G.K. NAIR. DATE OF HEARING : 26.08.2011. DATE OF PRONOUNCEMENT : O R D E R PER SHRI N.V. VASUDEVAN : THIS IS A MISCELLANEOUS APPLICATION FILED BY THE A SSESSEE UNDER SECTION 254 OF THE INCOME TAX ACT, 1961 (THE ACT) PRAYING FOR RECT IFICATION OF CERTAIN APPARENT ERRORS IN THE ORDER DATED 29.7.2009 PASSED BY THE T RIBUNAL IN THE ABOVE APPEAL. 2. THE ASSESSEE IS A COMPANY INCORPORATED UNDER THE LAWS OF THE UNITED KINGDOM OF GREAT BRITAIN (UK) AND IS A TAX RESIDENT OF UK. THE ASSESSEE IS IN THE WORLDWIDE BUSINESS OF PROVIDING NEWS AND FINANCIAL INFORMATIO N PRODUCTS (REUTERS PRODUCTS). THE NEWS AND FINANCIAL INFORMATION PRODUCTS ARE COMPILE D AND DISTRIBUTED BY THE ASSESSEE THROUGH THE REUTERS GLOBAL NETWORK. THE REUTERS GLO BAL NETWORK IS A VAST GLOBAL COMMUNICATION NETWORK CONSISTING OF DATA STORAGE FA CILITIES IN THREE LOCATIONS (I.E. LONDON, NEW YORK AND SINGAPORE) LINKED BY SATELLITE LINKS AND TERRESTRIAL LINES. IT IS ONE M.A.736/MUM/2010 (IN ITA NO.1325/MUM/2001) - 2 - OF THE WORLDS LARGEST PRIVATELY OWNED ELECTRONIC N ETWORKS OF ITS KIND. THE ASSESSEE USES THIS NETWORK TO RECEIVE INFORMATION, TO TRANSM IT INFORMATION AND PROVIDE ACCESS TO SUBSCRIBERS OF THE REUTERS PRODUCTS. THE ASSESSEE P ROVIDES REUTERS PRODUCTS TO ITS INDIAN SUBSIDIARY, REUTERS INDIA LIMITED (RIL) UNDE R CERTAIN SPECIFIED AGREEMENTS, AS EXPLAINED BELOW. RIL THEN DISTRIBUTES THE REUTERS P RODUCTS TO INDIAN SUBSCRIBERS INDEPENDENTLY IN ITS OWN NAME. CONTRACTUAL AGREEMENTS WITH RIL : 1. DISTRIBUTOR AGREEMENT (DA) : THE ASSESSEE ENTERED INTO A DA, DATED 6.9.1995, WITH RIL UNDER WHICH, RIL HAS BEEN APPOIN TED TO SELL DESIGNATED REUTERS PRODUCTS TO SUBSCRIBERS IN INDIA, USING THE REUTERS GLOBAL NETWORK. UNDER THE DA, INTER ALIA, THE ASSESSEE PROVIDES RIL A CONNECTION TO THE REUTERS GLOBAL NETWORK WHEREBY REUTERS PRODUCTS ARE MADE AV AILABLE TO RIL, WHICH ARE THEN DISTRIBUTED BY RIL TO VARIOUS SUBSCRIBERS IN I NDIA. IN CONSIDERATION FOR THE SAME, RIL PAYS TO THE ASSESSEE DISTRIBUTION FEES OF 65% OF THE SUBSCRIPTION REVENUES DERIVED BY RIL FROM THE INDIAN SUBSCRIBERS . 2. PRODUCT DISTRIBUTION AGREEMENT (PDA) AND:- IN ADD ITION TO THE DA, THE ASSESSEE HAS ALSO EXECUTED A PDA DATED 6.9.1995 WIT H RIL FOR DISTRIBUTION OF SOME OF THE ASSESSEES SPECIFIC SOFTWARE PRODUCTS. RIL PAYS THE ASSESSEE IN RESPECT OF EACH PRODUCT, A PRODUCT DISTRIBUTION FEE S AMOUNTING TO A PRESCRIBED PERCENTAGE (RANGING FROM 20 TO 55%) OF THE REVENUES FROM THE SUBSCRIBERS UNDER THE PDA. 3. LICENSE AGREEMENT (LA):- THE ASSESSEE HAS ALSO ENTE RED INTO A LA WITH RIL DATED 6.9.1995, WHEREBY THE ASSESSEE HAS GRANTED RI L A NON-EXCLUSIVE LICENSE TO USE THE TRADEMARK REUTERS AS A WORD AND IN DOT TED LOGO FORM AS WELL AS ANY INCIDENTAL COPYRIGHT THAT MAY SUBSIST IN THE REUTER S PRODUCTS. IN CONSIDERATION M.A.736/MUM/2010 (IN ITA NO.1325/MUM/2001) - 3 - FOR THE SAME, RIL PAYS THE ASSESSEE A LICENSE FEE ( I.E. ROYALTY) AMOUNTING TO 1% OF ITS TOTAL SUBSCRIPTION REVENUES RECEIVED FROM IT S SUBSCRIBERS IN INDIA. THE ISSUE THAT WAS CONSIDERED BY THE TRIBUNAL IN TH E ABOVE APPEAL RELATES TO TAXABILITY OF THE PAYMENTS UNDER THE DA (I.E. DISTRIBUTION FEE ) RECEIVED BY THE ASSESSE. 3. ACCORDING TO THE ASSESSEE THE DISTRIBUTI ON FEE RECEIVED UNDER THE DA WERE IN THE NATURE OF BUSINESS PROFITS. AS PER ARTICLE 7 OF THE TREATY, BUSINESS PROFIT OF A UK TAX RESIDENT COMPANY ARE TAXABLE IN INDIA, ONLY IF IT HAS A PERMANENT ESTABLISHMENT (PE) IN INDIA AND EVEN IN SUCH CASE, ONLY TO THE EX TENT OF THE PROFITS AS ARE ATTRIBUTABLE TO THE PE IN INDIA. ACCORDING TO THE A SSESSEE, SINCE THE ASSESSEE DID NOT HAVE ANY PE IN INDIA AS CONTEMPLATED BY ARTICLE 5 O F THE INDIA-UK TREATY, THE DISTRIBUTION FEE AND THE PRODUCT DISTRIBUTION FEE W ERE NOT LIABLE TO TAX IN INDIA, AS PER THE INDIA UK TREATY. 4. THE ASSESSING OFFICER IN HIS ORDER DATED 3 0.3.1998 UNDER SECTION 143(3) OF THE ACT TREATED THE DISTRIBUTION FEE PAYABLE UNDER THE DA AS FEES FOR TECHNICAL SERVICES (FTS) AS PER ARTICLE 13 OF THE INDIA-UK-TREATY. THE AMOUNTS RECEIVED UNDER PDA WERE TREATED AS IN THE NATURE OF BUSINESS INCOME. 5. ACCORDING TO THE AO, THE DISTRIBUTION FEE IS E SSENTIALLY A TECHNICAL SERVICES PROVIDED BY THE ASSESSEE TO INDIAN CLIENTS AND REND ERED AS ON LINE COMPUTER SERVICES. ACCORDING TO THE ASSESSING OFFICER, THE ASSESSEES CASE IS ALSO COVERED BY THE AUTHORITY FOR ADVANCE RULING IN THE CASE OF AN AMER ICAN COMPANY (REPORTED IN 238 ITR 296(AAR). BASED ON THIS, THE ASSESSING OFFICER HELD THAT THE DISTRIBUTION FEE UNDER THE DA IS IN EFFECT A FEE FOR TRANSFER OF ELECTRICA L INFORMATION AND ACCORDINGLY IS TAXABLE AS PER ARTICLE 13 OF THE INDIA-UK TREATY AT THE RATE OF 20% ON A GROSS BASIS. FURTHER THE ASSESSING OFFICER PROCEEDED TO TREAT RI L AS A DEPENDENT AGENT OF THE M.A.736/MUM/2010 (IN ITA NO.1325/MUM/2001) - 4 - ASSESSEE ON THE BASIS THAT RIL HAS CONDUCTED BUSINE SS ONLY FOR THE ASSESSEE IN INDIA. IN HIS ORDER, THE ASSESSING OFFICER HAS FURTHER HEL D THAT RIL HAS ALL AUTHORITY TO MAKE THE ASSESSEES PRODUCT IN INDIA AND CAN EXECUTE CON TRACTS WITH INDIAN CLIENTS AND RENDER THEM SERVICES. BASED ON THIS, THE ASSESSING OFFICER HELD THAT RIL IS TO BE CONSIDERED A DEPENDENT AGENT OF THE ASSESSEE AND HE NCE CONSTITUTE ASSESSEES PE. ACCORDINGLY, THE ASSESSING OFFICER APPLYING THE DEC ISION IN THE CASE OF BECHTEL FINANCE, AAR 213 OF 1995 TO THE ASSESSEES CASE HEL D THAT THE DISTRIBUTION FEE RECEIVED BY THE ASSESSEE IS ESSENTIALLY FTS RECEIVE D BY IT THROUGH A PE (I.E. THROUGH DEPENDANT AGENT, RIL). ACCORDINGLY, SUCH FTS ARE TO BE COMPUTED IN ACCORDANCE WITH SECTION 44D OF THE ACT AND THE ENTIRE RECEIPT WOULD BE TAXED ON GROSS BASIS AT THE RATE OF 20% UNDER SECTION 115A OF THE ACT. 6. BEFORE CIT(A), THE ASSESSEE RAISED TWO ISSUES VIZ., (I) WHETHER RIPL CAN BE TREATED AS DEEMED PE OF THE ASSESSEE IN INDIA. IF T HE ANSWER IS IN THE AFFIRMATIVE THAN THE ASSESSEES BUSINESS PROFITS IN INDIA WILL BE TA XABLE IN INDIA TO THE EXTENT IT IS ATTRIBUTABLE TO ITS PE. (II) WHAT IS THE NATURE OF PAYMENTS(DISTRIBUTION FEE) RECEIVED BY THE ASSESSEE UNDER THE DA VIZ. WHETHER THEY WERE ARE ROYALTY, FTS OR BUSINESS PROFITS WITHIN THE MEANING OF THESE TERMS IN THE D TAA. AS FAR AS THE FIRST ISSUE AS TO WHETHER THE ASSESSE E CAN BE SAID TO HAVE A PE IN INDIA AND THEREFORE ITS BUSINESS PROFITS CAN BE BROUGHT T O TAX IN INDIA, WHICH IS THE DISPUTE IN THE APPEAL BY THE REVENUE BEFORE THE TRIBUNAL, T HE LEARNED CIT(A) HELD THAT THERE WAS NO PE OF THE ASSESSEE IN INDIA. 7. AS FAR AS THE SECOND ISSUE IS CONCERNED, TH E LEARNED CIT(A) HELD THAT DISTRIBUTION FEE PAID UNDER THE DA IS NOT ROYALTY O R FTS BUT BUSINESS PROFITS. THE FINDINGS OF THE LEARNED CIT(A) IN THIS REGARD HAVE NOT BEEN CHALLENGED BY THE REVENUE AND THEREFORE THAT HAS BECOME FINAL. THE ONLY ISSU E RAISED BY THE REVENUE BEFORE THE TRIBUNAL WAS REGARDING THE FINDINGS OF THE CIT(A) T HAT THERE WAS NO PE OF THE ASSESSEE IN INDIA. M.A.736/MUM/2010 (IN ITA NO.1325/MUM/2001) - 5 - 8. ON THE QUESTION WHETHER THE ASSESSEE H AD A PE IN INDIA, THE CASE OF THE AO WAS THAT RIPL HAD CONDUCTED ONLY THE BUSINESS OF TH E ASSESSEE COMPANY IN INDIA. RIPL HAD AUTHORITY TO CONCLUDE CONTRACTS ON BEHALF OF TH E ASSESSEE IN INDIA. THE AO HOWEVER DID NOT SPELL OUT ANY PARTICULAR ARTICLE IN THE DTAA OR ELABORATE FURTHER AS TO HOW HE CAME TO SUCH CONCLUSION. THE CIT(A) ON THIS ISSUE REFERRED TO ARTICLE 5(4) OF THE DTAA BETWEEN INDIA AND UK (DTAA) AND HELD THAT THE RIPL DID NOT FULFILL THE CONDITIONS LAID DOWN IN THE SAID ARTICLE AND CANNOT BE CONSIDERED AS A DEPENDENT AGENT OF THE ASSESSEE SO AS TO CONSTITUTE A PE OF THE ASS ESSEE IN INDIA. ON THE ISSUE WHETHER RIPL CAN BE SAID TO BE AN INDEPENDENT AGENT WITHIN THE MEANING OF ARTICLE 5(5) OF THE DTAA, THE CIT(A) HELD THAT IT IS POSSIB LE TO HOLD THAT RIPL WAS AN INDEPENDENT AGENT OF THE ASSESSEE IN INDIA BUT AS P ER THE OECD COMMENTARY ON MODEL TAX CONVENTION ON INCOME AND CAPITAL (APRIL, 2000) A SUBSIDIARY COMPANY IS A SEPARATE LEGAL ENTITY AND THEREFORE MERE EXISTENCE OF A SUBS IDIARY COMPANY AND THE FACT THAT ITS TRADE OR BUSINESS IS MANAGED BY THE PARENT COMP ANY WOULD ALONE NOT BE SUFFICIENT TO CONCLUDE THAT THE SUBSIDIARY COMPANY IS INDEPEND ENT AGENT. THE EXISTENCE OF THE ABOVE FACT SHOULD BE COUPLED WITH POWER OF THE SUBS IDIARY COMPANY TO HABITUALLY EXERCISE AUTHORITY TO CONCLUDE CONTRACTS IN THE NAM E OF OR ON BEHALF OF THE PARENT COMPANY. HE HELD THAT THE SECOND CONDITION VIZ., P OWER OF THE SUBSIDIARY COMPANY (RPIL) TO HABITUALLY EXERCISE AUTHORITY TO CONCLUDE CONTRACTS IN THE NAME OF OR ON BEHALF OF THE PARENT COMPANY(ASSESSEE). IN OTHER W ORDS, HE HELD THAT ARTICLE 5(4) WILL GOVERN ARTICLE 5(5) ALSO AND THAT THEY ARE NOT BOTH SEPARATE CLAUSES. THIS CONCLUSION IS BASED ON THE OECD COMMENTARIES AS ALREADY STATED. 9. ON REVENUES APPEAL BEFORE THE TRIBUNAL, THE ONLY QUESTION WAS WHETHER THE CONCLUSIONS OF THE CIT(A) THAT THERE WAS NO PE OF T HE ASSESSEE IN INDIA IS CORRECT OR NOT. 10. THE LR.D.R. SUBMITTED THAT IN AY 98-99 IN THE CASE OF THE ASSESSEE IT WAS HELD THAT THERE WAS A SERVICE PE WITHIN THE MEANING OF A RTICLE 5 (2)(K) OF THE DTAA. SINCE M.A.736/MUM/2010 (IN ITA NO.1325/MUM/2001) - 6 - NEITHER THE AO OR THE CIT(A) HAD EXAMINED THE ISSUE IN THE LIGHT OF ARTICLE 5(2)(K) OF THE DTAA, IT WAS SUBMITTED THAT THE MATTER SHOULD B E DIRECTED TO BE EXAMINED BY THE AO AFRESH. THIS REQUEST WAS ACCEPTED BY THE TRIBUN AL. AGAINST THIS PART OF THE TRIBUNAL, THE ASSESSEE IS IN APPEAL BEFORE THE HON BLE BOMBAY HIGH COURT. 11. WITH REGARD TO EXISTENCE OF AGENCY PE, T HE TRIBUNAL HELD THAT THE FINDINGS OF THE CIT(A) WITH REGARD TO SATISFACTION OF THE CONDI TIONS OF ARTICLE 5(5) OF THE DTAA AND THE FURTHER CONCLUSION OF THE CIT(A) THAT THE C ONDITIONS MENTIONED IN ARTICLE 5(4) OF THE DTAA SHOULD ALSO BE SATISFIED TO CONSTITUTE AN AGENCY PE WAS NOT CORRECT. THE OBSERVATIONS OF THE TRIBUNAL IN THIS REGARD WERE AS FOLLOWS: LEARNED DEPARTMENTAL REPRESENTATIVE ALSO POINTED O UT THAT LEARNED CIT(A) AFTER HOLDING THAT RIPL WAS NEITHER A DEPENDENT AGE NT NOR A INDEPENDENT AGENT OF THE ASSESSEE WITHIN THE MEANING OF ARTICLE 5(4) AND 5(5) OF THE INDIA-UK DTAA HAS FURTHER MADE REFERENCES TO OECD COMMENTARI ES AND OPINED THAT RIPL CAN BE CONSIDERED AS AN AGENT OF AN INDEPENDEN T STATUS UNDER ARTICLE 5(5) OF THE DTAA. THERE IS THEREFORE A CONTRADICTION IN THE CONCLUSION OF THE LEARNED CIT(A) AND THE BASIS ON WHICH THE LEARNED C IT(A) HELD THAT THERE WAS NO PE OF THE ASSESSEE IN INDIA. THIS ISSUE ALSO TH EREFORE REQUIRES A FRESH EXAMINATION BY THE ASSESSING OFFICER AS THERE IS NO CLEAR FINDINGS ON THE ISSUE 12. IN THIS MISCELLANEOUS APPLICATION, IT HAS BEEN ALLEGED THAT THE LEARNED D.R. DID NOT MAKE ANY SUBMISSIONS ON RIPL CONSTITUENT AGENT PE FOR THE ASSSESSEE. THE LEARNED D.R. DID NOT MAKE ANY SUBMISSION DURING THE HEARING ON THE ASPECT OF AGENCY PE. 13. AT THE TIME OF HEARING OF THE MISCELLANEOUS APPLICATION, THE LOG BOOK OF THE AUTHOR OF THE ORDER WAS PERUSED AND IT WAS FOUND TH AT THERE IS A REFERENCE TO PARA-9 PAGE-4 OF THE CIT(A)S ORDER WHICH CONTAINS THE REL EVANT FINDINGS OF THE CIT(A) ON THE ISSUE OF AGENCY PE. FURTHER THERE IS ALSO A REFERE NCE TO THE RELEVANT PORTION OF THE OECD COMMENTARIES RELIED UPON BY THE CIT(A) AND THE DRS SUBMISSION THAT THE CIT(A) HAS PROCEEDED TO CONSIDER THE CONDITIONS MEN TIONED IN ARTICLE 5(4) AND 5(5) AS CUMULATIVE WHEREAS THOSE CONDITIONS ARE NOT CUMULAT IVE AND EVEN IF THE CONDITION THAT IF THE ACTIVITIES OF SUCH AN AGENT ARE CARRIED OUT WHOLLY OR ALMOST WHOLLY FOR THE M.A.736/MUM/2010 (IN ITA NO.1325/MUM/2001) - 7 - ASSESSEE THEN THE AGENT SHALL BE CONSIDERED TO BE A N AGENT OF AN INDEPENDENT STATUS FOR THE PURPOSES OF PARAGRAPH 5(5) OF THE DTAA. WE ARE THEREFORE UNABLE TO ACCEPT THE PLEA IN THE MISCELLANEOUS APPLICATION THAT THE QUESTION OF AGENCY PE WAS NEVER RAISED BEFORE THE BENCH AT THE TIME OF HEARING OF T HE APPEAL. 14. THE FURTHER PLEA OF THE ASSESSEE IN T HE MISCELLANEOUS APPLICATION IS THAT THE CONCLUSION OF THE CIT(A) ON THE EXISTENCE OF AGENCY PE IN THE CONTEXT OF ARTICLE 5(5) OF THE DTAA ARE CORRECT AND THE TRIBUNAL ERRONEOUSL Y ASSUMED THAT THERE WAS A CONTRADICTION IN THE FINDINGS OF THE CIT(A). THE T RIBUNAL ERRED IN GIVING ITS CONCLUSION THAT THERE WAS NO DEFINITE FINDING ON THE ISSUE OF EXISTENCE OF AGENCY PE IN THE CONTEXT OF ARTICLE 5(5) OF THE DTAA EITHER BY THE A O OR THE CIT(A). IT HAS FURTHER BEEN REITERATED THAT ARTICLE 5(4) WILL GOVERN ARTIC LE 5(5) ALSO AND THAT THEY ARE NOT BOTH SEPARATE CLAUSES. IT HAS ALSO BEEN STATED THA T THE TRIBUNAL FAILED TO NOTE THIS FINDING OF THE CIT(A) IN GIVING ITS CONCLUSION THAT THERE IS A CONTRADICTION IN THE FINDINGS OF THE CIT(A) REGARDING EXISTENCE OF A PE UNDER ARTICLE 5(5) OF THE DTAA. 15. WE HAVE CONSIDERED THE SUBMISSION OF T HE LEARNED COUNSEL FOR THE ASSESSEE WHO REITERATED THE PLEA OF THE ASSESSEE AS PUT FORT H IN THE MISCELLANEOUS APPLICATION. HIS PLEA WAS THAT THE PART OF THE ORDER WHICH DEALS WITH THE EXISTENCE OF AGENCY PE IN TERMS OF ARTICLE 5(5) OF THE DTAA SHOULD BE RECALLE D AND HEARD AFRESH AS IT SUFFERS FROM AN INCORRECT ASSUMPTION THAT THERE WAS NO DEFI NITE FINDING ON THE ISSUE OF EXISTENCE OF AGENCY PE IN THE CONTEXT OF ARTICLE 5( 5) OF THE DTAA BY THE CIT(A). 16. THE LEARNED D.R. SUBMITTED THAT THE PLE A PUT FORTH IN THE MISCELLANEOUS APPLICATION DOES NOT DISCLOSE A MISTAKE APPARENT ON THE FACE OF THE RECORD. HE ALSO SUBMITTED THAT THE OECD COMMENTARIES ARE NOT BINDIN G AS INDIA HAS ADOPTED THE UN MODEL TAX CONVENTION. 17. WE HAVE CONSIDERED THE RIVAL SUBMISSIO NS. IN OUR VIEW THE CONTENTIONS PUT FORTH IN THE MISCELLANEOUS APPLICATION DOES NOT DIS CLOSE ANY APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL. THE TRIBUNALS CONCLUSIONS ARE BASED ON ITS OPINION THAT IF THE M.A.736/MUM/2010 (IN ITA NO.1325/MUM/2001) - 8 - CONDITIONS MENTIONED IN ARTICLE 5(5) OF THE DTAA AR E SATISFIED THAN THAT WOULD BE SUFFICIENT TO CONSTITUTE RIPL AS AN INDEPENDENT AGE NT OF THE ASSESSEE IN INDIA AND CONDITIONS MENTIONED IN ARTICLE 5(4) OF THE DTAA NE ED NOT BE SATISFIED. IN OTHER WORDS, EVEN THOUGH THE AGENT ACTS INDEPENDENTLY IN THE ORDINARY COURSE OF HIS BUSINESS, IF THEY DEVOTE THEIR ACTIVITIES WHOLLY OR MOSTLY WH OLLY ON BEHALF OF THE FOREIGN ENTERPRISE, THEY WOULD BE CONSIDERED INDEPENDENT AG ENTS AND WOULD BE PE OF THE FOREIGN ENTERPRISE IRRESPECTIVE OF WHETHER THEY CON CLUDE CONTRACTS BINDING ON THEIR PRINCIPAL OR NOT. IN A MISCELLANEOUS APPLICATION, IT IS NOT POSSIBLE TO CONSIDER THE PLEA OF THE ASSESSEE THAT THE VIEW EXPRESSED BY THE TRIBUNA L IS ERRONEOUS. THE SCOPE OF A MISCELLANEOUS APPLICATION U/S.254(2) OF THE ACT IS ONLY TO RECTIFY AN APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL. IN A MISCELLANEOUS APPL ICATION IT IS NOT POSSIBLE TO SEEK REVIEW OF THE ORDER OF THE TRIBUNAL. WE ARE THEREF ORE OF THE VIEW THAT THE MISCELLANEOUS APPLICATION IS WITHOUT MERIT AND THE SAME IS LIABLE TO BE DISMISSED. WE ACCORDINGLY DISMISS THE MISCELLANEOUS APPLICATION A S THE SAME DOES NOT DISCLOSE ANY APPARENT ERROR IN THE ORDER OF THE TRIBUNAL. 18. IN THE RESULT, THE MISCELLANEOUS APPLICAT ION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 9TH 2011. SD/- SD/- (R.S. SYAL) (N.V. VASUDEVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DT. 9/9/2011. *GPR M.A.736/MUM/2010 (IN ITA NO.1325/MUM/2001) - 9 - TRUE COPY COPY TO : 1. THE ASSESSEE. 2. THE ASSESSING OFFICER. 3. CIT(APPEALS) 4. CIT 5. DEPARTMENTAL REPRESENTATIVE, ITAT, MUMBAI. 6. GUARD FILE. BY ORDER DY./ASST.REGISTRAR, ITAT, MUMBAI M.A.736/MUM/2010 (IN ITA NO.1325/MUM/2001) - 10 - DATE INITIAL OF SR.P.S. 1. DRAFT DICTATED ON 29.08.2011 2. DRAFT PLACED BEFORE AUTHOR 3. DRAFT PROPOSED & PLACED BEFORE SECOND MEMBER 4. DRAFT DISCUSSED & APPROVED BY SECOND MEMBER 5. APPROVED DRAFT COMES TO SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 7. FILE SENT TO BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE ON WHICH FILE GOES TO A.R. 10. DATE OF DISPATCH OF ORDER.