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Income Tax Appellate Tribunal, DELHI BENCH “D”, DELHI
Before: SHRI VIKAS AWASTHY & SHRI AVDHESH KUMAR MISHRA
सुनवाई क� ितिथ/ Date of hearing : 01/09/2025 घोषणा क� ितिथ/ Date of pronouncement : : 26/11/2025 आदेश/ORDER PER VIKAS AWASTHY, JM: to 1715/Del/2025, A.Y.s 2011-12, 2013-14 to 2015-16 These five appeals by the assessee for AY 2011-12, 2013-14, 2014-15, 2015- 16 and 2022-23, respectively germinate from identical set of facts, hence, are taken up together for adjudication. For the sake of convenience, the appeal of assessee for AY 2011-12 is taken up as a lead case, hence, the facts are narrated from the said appeal. (AY 2011-12) 2. These appeals are in second round of litigation before the Tribunal. In the first round, the appeal of assessee in ITA nos. 4404/Del/2019 for AY 2011-12, 4408/Del/2019 for AY 2013-14, 4406/Del/2019 for AY 2014-15 and 8818/Del/2019 for AY 2015-16 were remanded back to the Assessing Officer (AO) by the Tribunal vide common order dated 11.11.2022. The relevant excerpts from the said Tribunal order are reproduced herein below for the sake of ready reference: “7. We have considered rival submissions and perused the materials on record. On a reading of the impugned assessment orders as well as the orders of learned first appellate authority, it is absolutely clear that they have proceeded on the basis of the decision taken by the departmental authorities in past assessment years to conclude that the assessee had a PE in India. However, it is the specific contention of the assessee before us that the decision taken in the past assessment years cannot apply to the impugned assessment year, as, except one of the contracts, all other contracts under which the assessee has executed work in these assessment years are fresh contracts and the existence or otherwise of the PE has to be construed after examining the terms of the contract as well as scope of work. It is observed, though, before the departmental authorities, the assessee had furnished relevant extracts of the contract, however, complete set of contracts were not furnished. Since, existence or otherwise of PE is dependent upon the terms of the contract and the allocation of work under the contract between various consortium members in different assessment years under consideration, it is necessary to examine the contracts thoroughly. Considering the fact that while deciding the issue relating to existence of PE, the departmental authorities have simply relied upon decision taken in earlier assessment years without verifying the factual position qua contracts executed in these assessment years, in our view, the assessee must be given an opportunity to furnish the relevant contracts before the departmental authorities to establish its case that in the assessment years under consideration the assessee did not have any PE in India so as to bring to tax the income from off-shore supplies.
In view of the aforesaid, we are inclined to restore the matters back to the Assessing Officer for fresh adjudication after thoroughly examining the relevant contracts and other materials brought on record. At this stage, we must make it clear that we have not expressed any opinion on the merits of the issues arising in these appeals. Needless to mention, before deciding the issue, the assessee must be afforded reasonable opportunity of being heard. Grounds are allowed for statistical purposes.” [Emphasized by us] 3. Shri Deepak Chopra, appearing on behalf of the assessee submits that the assessee company was incorporated in France and is a tax resident of France. During the period relevant to assessment year under appeal, the assessee has inter alia entered into following International Transactions: i. Offshore supply of equipment and spare parts Rs.68,00,79,873/- ii. Offshore designing and other services Rs.22,80,39,490/- In so far as the first transaction of Offshore supply of equipment and spare parts no amount was offered to tax in India. As regard the second transaction of Offshore designing and other services the amount was initially offered to tax in India, however, later on by way of additional ground of appeal the assessee claimed that the said transaction is also not taxable in India as the transaction was completed outside India. The AO taxed receipts in respect of both the transactions holding that the assessee has PE in India. The said conclusion of the AO was based on assessment order for AY 2010-11. The matter travelled to the Tribunal. The Tribunal vide order dated 11.11.2022 restored the issue back to the AO for fresh examination.
In pursuance to directions of the Tribunal vide order dated 11.11.2022, the assessee again furnished relevant contracts and documents before the Assessing Officer (AO) for examination. The assessee along with other consortium partners had entered into contract with Delhi Metro Rail Corporation (DMRC) for design, manufacture, supply, installation, testing, commissioning of “Train Control, Signaling and Telecommunication Systems”. The relevant contracts entered into with DMRC were SYS 1 dated 09.03.2001 and BS-01 dated 14.03.2007. The other consortium partners in the aforesaid SYS 1 contract were Alstom Transport Ltd., Alcatel Portugal SA and Sumitomo Corporation. In BS-01 contract the consortium partner were Alstom projects India Ltd. and Sumitomo Corporation. Likewise, the assessee had entered into contract 2 S & T dated 16.09.2009 with Bangalore Rail Corporation Ltd. (BMRCL). The other consortium partners for the said contract were Alstom Projects India Ltd., Thales Security Solutions & Services and Sumitomo Corporation.
The ld. Counsel submits that the Assessing Officer instead of independently examining existence of assessee’s PE in India for the impugned assessment year, again placed reliance on the assessment orders for AY 2010-11, 2018-19 and 2019-20, 2020-21 and 2021-22 to hold that the assessee has fixed place PE in India. The AO heavily placed reliance on the reply of DMRC dated 23.12.2022 in response to the query raised for AY 2021-22 and held that the assessee has PE in India. He further referred to the Draft Assessment Order (page 8) to contend that the AO has wrongly assumed the fact that the assessee is the leader of consortium. In fact a perusal of the documents on record would reveal that in Agreement with DMRC, SYS-1 Alstom Transport Ltd. is the consortium leader. The consortium agreement dated 27.01.2001 was placed on record at page no. 216 of paper book Vol-1. In contract with DRMC, BS-01, the consortium leader is Alstom Projects India Ltd. Memorandum of Understanding dated 28.08.2006 is at page 2721 paper book Vol-4. And in contract with Bangalore Rail Corporation Ltd., 2 S&T, the consortium leader is Alstom Projects India Ltd. The consortium agreement dated 01.09.2009 is at page 3552 paper book Vol-5. He submitted that a perusal of the contracts would clearly show that DMRC/BMRCL shall pay consortium members directly for their respective scope of work. No consortium member was working in the capacity of an agent of the other consortium member. Each contractor was responsible for performance of its share of work and related contractual duty. Each contractor was to issue separate invoices and related documents to DMRC to receive direct payment. The contractors were jointly and severally liable for performance of contract. The ld. Counsel asserted that the Revenue without examining the facts and documents on record has erred in coming to the conclusion that the assessee has PE in India. The findings of the AO that the assessee has PE in India are purely on the basis of assessment order passed for the immediate preceding and succeeding assessment years. The said findings of the AO are in violation of the directions of the Tribunal. The ld. Counsel submits that though in remand assessment proceeding notice u/s.142(1) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) was issued to the assessee asking the assessee to furnish various documents and information, the assessee complied with the said notice and furnished relevant information/documents, the AO without examining the said documents, merely on the basis of assessment orders for the preceding and succeeding assessment years held that the assessee has PE in India.
The ld. Counsel for the assessee submitted that the scope of work assigned to the assessee was limited to Offshore supply of equipment and spare parts. The assessee was paid for Offshore supply and equipment of spare parts in the foreign currency. The terms of the contract also provided for transfer of title on FOB basis. Accordingly, the assessee had issued all invoices for the equipment and spare parts on FOB. Thus, the title and risk in the goods was transferred in favour of the customer at the port of delivery i.e. outside India. After the import of equipment and spare parts in India it was the Indian counterpart of consortium i.e. the leader of consortium which provided necessary on shore services including transportation of goods on the site as well as installation and commissioning of the equipment and spare parts. Installation and commissioning of the equipment and spare parts was not within the scope of assessee’s work. The payments were made by the customer for installation and commissioning the equipment and spare parts directly to the Indian counterpart of the consortium in INR. Thus, the necessary condition to constitute fix placed PE/installation PE in India were not satisfied. In support of his submissions, the ld. Counsel placed reliance on the decision rendered in the case of Bombardier Transportation Sweden AB vs. DCIT in decided on 29.10.2020 [125 taxmann.com 277 (Delhi-Trib.)].
In respect of second issue relating to provision of designing and other services, the ld. Counsel submits that receipts from Offshore designing and other services are inextricably linked to the supply of Offshore supply of equipment and spare parts. In the event, such Offshore supply is held to be not liable for taxation in India then receipts on account of Offshore designing and other services shall also not be taxable in India. To support his submissions, the ld. Counsel for assessee placed reliance on the following decisions:- i. SMS Concast AG vs. DDIT, 110 ITR (T) 138 (Delhi-Trib); ii. DSD Noell GmbH vs. DCIT, 157 taxmann.com 64(Delhi-Trib); iii. Andritz AG vs. DDIT, 165 taxmann.com 76(Delhi-Trib);& iv. DDIT vs. SMS Siemag,170 taxmann.com 245.
8. Per contra, Shri Nikhil Kumar Govila representing the department vehemently defending the assessment order reiterated the findings of the AO in holding existence of PE in assessee’s case for the impugned assessment years. The ld. DR submits that the assessee has been rendering services continuously for such a long time, without existence of PE it would not be possible for the assessee to provide the services to its customer in India. In the immediate preceding assessment year i.e. AY 2010-11 and in the subsequent assessment years starting from AY 2018-19 to 2020-21, the AO and the Dispute Resolution Panel (DRP) have held that the assessee was having PE. There has been no change in the facts and the contracts in the impugned assessment year, hence, there was no reason for the AO to take a different view in the impugned assessment years. He thus, prayed for upholding the assessment order and dismissing appeal of the assessee.
Both sides heard, orders of the authorities below examined, the case laws and the documents on which the ld. Counsel for the assessee has placed reliance considered. This is second round of litigation before the Tribunal for the impugned assessment year. In the first round the Tribunal vide order dated 11.11.2022 (the operative part of the said Tribunal order has already reproduced above) had directed the AO to make the assessment denovo after examining the relevant contracts and other material available on record. The Tribunal further directed to decide the issue relating to existence of Permanent Establishment (PE) in India on the basis of documents relevant to decide the issue in impugned assessment year rather than simply relying on assessment orders for earlier assessment years without verifying the factual position in the impugned assessment year. Thus, in light of above directions, the AO was required to pass fresh assessment order.
A perusal of the Draft Assessment Order at the outset reveal that the Assessing Officer has set the tone of his findings on the issue of assessee having PE India after referring to the assessment orders and directions of the DRP for AY 2010-11 and AY 2018-19 to 2021-22. The Assessing Officer has in extenso reproduced the reply received from the DMRC dated 23.12.2022 in response to the notice issued u/s. 133(6) of the Act for AY 2021-22. The entire findings of the AO with respect to assessee having a PE in India has roots in the directions of the DRP dated 14.11.2014 for AY 2010-11. No independent findings have been given by the Assessing Officer with regard to assessee having PE in India for AY 2011-12. The Tribunal had specifically remanded the matter back to the Assessing Officer to give findings on assessee having PE in India based on the contracts and documents on record relevant to assessment year under appeal, instead of following assessment order for previous assessment year. It is no more res- integra that existence of PE for each assessment year has to be determined.
Foreign Enterprises, if, having a PE in one year does not automatically mean that it has PE in the subsequent assessment year as well. Primary onus is on the revenue to prove existence of PE in each assessment year [RE: ADIT vs. E-Fund IT Solution Inc., 86 taxmann.com 240 (SC)]. The Assessing Officer has failed to discharge his duty and comply with direction of the Tribunal dated 11.11.2022 (supra).
During the period relevant to assessment year under appeal, the assessee has inter-alia received payments in respect of: i. Offshore supply of equipment and spare parts; & ii. Offshore designing and other services. It is an accepted fact that the assessee has offered to tax receipts in respect of offshore designing and other services, whereas, receipts in respect of offshore supply of equipment and spare parts were claimed as not taxable in India by the assessee. It was subsequently by way of additional ground of appeal
before the Tribunal that the assessee has claimed that receipts in respect offshore designing and other services are not taxable in India.
12. The assessee has placed on record copy of contracts viz. SYS-1, BS-01 i.e. the contracts between the assessee, other consortium partners on the one hand and DMRC on the other. The assessee has furnished a chart giving bird’s eye view of the critical covenants of the contracts. A perusal of the contract SYS-1 reveals that the purpose and the scope of contract is Design, Manufacture, Supply, Installation and Commissioning of Train Control and Signaling and Telecommunication System SYS-1. Likewise, for contract BS-01 the scope of work includes Design, Manufacture, Supply and Commissioning of Train Control and Signaling System for extension of lines 1 & 2 as per of phase-2 of DMRC’s Mass Rapid Transportation System. In so far as inputs received from outside India the payments for the same are to be made in foreign currency. The title to equipment and parts supplied from outside India were invoiced FOB. In FOB shipment once the goods have passed the ship’s rail at the port of shipment, the risk of shipment is transferred to the buyer. The seller’s responsibility ends when the goods are successfully loaded on the ship at the agreed port of origin. In the instant case since, the invoice refers to FOB delivery, the title in good and the risk is transferred to the buyer at the port of origin of consignment i.e. outside India. The responsibility of installation and erection of the equipment and the spares onshore is with the Indian consortium member, the payment for which was received by the Indian Company in INR. Neither, the AO has examined these facts nor the Revenue has disputed these facts emerging from the contracts already available on record. Since, the matter was earlier restored back to the AO with a specific direction by the Co- ordinate Bench to verify the factual position qua contracts executed in the impugned assessment years to ascertain existence of assessee’s PE in India, the AO again misdirected himself in giving findings on the PE issue based on assessment order and the DRP directions for AY 2010-11. The AO ought to have examined existence of PE in the impugned assessment year, on the basis of relevant contracts and documents on record with reference to the conditions set out in Article 5 of India-France DTAA. The AO has not only violated the directions of the Tribunal but has also missed the opportunity in examining the issue of assessee having PE in India and its consequent effect. Now, third opportunity cannot be given to the AO to examine the same set of facts.
13. Prima facie, on examining the contracts available on record, we are of considered view that the scope of work of the assessee was limited to offshore supply of equipment and spares. The assessee is not the consortium leader as is evident from consortium agreements/Memorandum of Understanding. The consortium leader is Alstom Transport Ltd. in SYS 1 contract and Alstom Projects India Ltd. is BS-01 contract. The responsibility is of the consortium leader to coordinate execution of the contract. The Revenue has failed to establish any fixed place PE/installation PE of the assessee in India in the impugned assessment year, consequently, question of profit attribution to any PE in respect of receipts of offshore supply of equipment and spares by the assessee does not arise.
In so far as, the transaction of offshore supply of design and other services is concerned once it is held that the assessee has no PE in India, the same is also not liable to tax in India as both transaction of supply of equipment and designs is inextricably linked. The Coordinate Bench of the Tribunal in the case of SMS Concast AG vs. DDIT (supra) held that the supply of drawings and design being inextricably linked to the sale of equipment. Thus, both the transactions have to be considered cumulatively. If the offshore supply of equipment and spares is held to be not taxable in India, logical corollary is that same treatment has to be given to the supply of drawings. 14.1. In the case of Andritz AG vs. DDIT (supra), the Tribunal following the decision rendered in the case of SMS Concast AG vs. DDIT (supra) held that where the assessee has entered into a composite contract involving supply of plant and equipment, drawing and designs, etc., the receipts in respect of design are not taxable in India. Similar view has been taken by the Tribunal in the case of DSD Noell GmbH vs. DCIT (supra).
In the result, the assessee succeeds on merits of the addition.
As far as grounds raised
by the assessee assailing validity of assessment order sans DIN, since, no submissions were made on the said issue, the same are dismissed.
17. The assessee has raised a ground challenge validity of penalty u/s.271(1)(c) of the Act, challenge to penalty proceeding at this stage is premature, hence, ground is dismissed.
18. The assessee has assailed levy of interest u/s. 234B, 234C and 234D of the Act. The ld. Counsel for the assessee referring to the decision in the case of DIT vs. Mitsubishi Corporation, 438 ITR 174 (SC), stated that interest u/s. 234B is not applicable to non-residents in AY 2011-12. Charging of interest u/s. 234B, 234C and 234D is mandatory and consequential. The AO shall decide chargeability of interest u/s.234B of the Act for AY 2011-12 in light of the decision rendered in the case of DIT vs. Mitsubishi Corporation (supra).
19. In the result, appeal of the assessee is partly allowed in the terms aforesaid.
20. Before parting we would like to observe that this order has been passed in peculiar set of facts, hence, does not lay down any precedent. to 1714/Del/2025, AYs 2013-14 to 2015-16 21. Both sides are unanimous in stating that the in Assessment Years 2013-14 to 2015-16 facts are identical to AY 2011-12. Hence, the submissions made for AY 2011-12 would equally apply to AY 2013-14 to 2015-16.
The grounds raised
and the facts germane to the issue in the assessment years 2013-14 to 2015-16 are identical to AY 2011-12. The AO has failed to pass fresh assessment order in accordance with the directions of the Tribunal dated 11.11.2022. Thus, the findings given by us while adjudicating the appeal of the assessee for AY 2011-12 would mutatis mutandis apply to the instant appeals.
23. In the result, appeals of the assessee are partly allowed for parity of reasons.
AY 2022-23 24. The present appeal against the Assessment Order dated 25.01.2025 passed u/s.143(3) r.w.s. 144C(13) for AY 2022-23 is in first round of litigation before the Tribunal.
The ld. Counsel for the assessee submitted that the AO while passing the assessment order for AY 2022-23 has verbatim reproduced the assessment order for AY 2021-22. No separate findings have been given by the Assessing Officer with regard to the status of assessee having PE in India. The assessee carried the assessment order for AY 2021-22 in appeal before the Tribunal in ITA No. 3858/Del/2023. The Tribunal vide order dated 30.05.2024 has restored the issue back to the AO for denovo assessment in accordance with the directions of the Tribunal in & 2378/Del/2022 and in ITA No. 921/Del/2023 decided on 17.01.2024. We find that the Co-ordinate Bench while disposing of aforesaid appeals in turn has referred to the Tribunal order in ITA No.4404/Del/2019 for AY 2011-12 dated 11.11.2022 and directed the AO to reframe the assessment following the directions of the Tribunal dated 11.11.2022.
Since, in the instant appeal the AO has followed the assessment order for AY 2021-22, the appeal of the assessee is disposed of with similar direction. The AO shall reframe the assessment following the directions of the Tribunal dated 11.11.2022. The said direction have already been reproduced above in para 2 of this order.
In the result, impugned assessment order is set aside and appeal of the assessee is allowed for statistical purpose. SA Nos. 311 to 315/Del/2025, A.Y.s 2011-12, 2013-14 to 2015-16 & 2022-23 28. Since, the appeals of the assessee have been decided, the Stay Applications for AYs 2011-12, 2013-14 to 2015-16 & 2022-23 have become infructuous and the same are dismissed as having become infructuous. 29. To sum up:- ITA & SA Nos. AY Result 1711/Del/2025 2011-12 Partly Allowed 1712 to 1714/Del/2025 2013-14 to 2015-16 Partly Allowed 1715/Del/2025 2022-23 Allowed for statistical purpose SA Nos. 311 to 2011-12, 2013-14 to 2015- Dismissed as Infructuous 315/Del/2025 16 & 2022-23 Order pronounced in the open court on Wednesday the 26th day of November, 2025. Sd/- Sd/- (AVDHESH KUMAR MISHRA) (VIKAS AWASTHY) लेखाकार सद�य/ACCOUNTANT MEMBER �याियक सद�य/JUDICIAL MEMBER िद�ी/Delhi, �दनांक/Dated 26/11/2025 NV/- �ितिलिप अ�ेिषत/Copy of the Order forwarded to : अपीलाथ�/The Appellant , 1. 2. �ितवादी/ The Respondent. 3. The PCIT िवभागीय �ितिनिध, आय.अपी.अिध., िद�ी /DR, ITAT, िद�ी 4. गाड� फाइल/Guard file. 5.