COMMISSIONER OF INCOME TAX vs. SAMSUNG HEAVY INDUSTRIES CO. LTD.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Income Tax Appeal No.37 of 2018

Commissioner of Income Tax .......Appellant Vs. Samsung Heavy Industries Co. Ltd.

…....Respondent

Shri Hari Mohan Bhatia, learned counsel for the appellant. Shri Pullak Raj Mullick, learned counsel for the respondent.

28th December, 2020

Coram : Hon’ble Ravi Malimath, A.C.J.

Hon’ble Alok Kumar Verma, J.

Ravi Malimath, A.C.J. (Oral)

By the order dated 19.09.2018 the appeal was admitted to consider the following substantial questions of law:- A. Whether on the fact and the circumstances of the case and in law, the ITAT has erred in setting aside the judgment of the DRP as well as the assessment order on the ground that tax liability @ 25% of the revenues claimed by the assessee to have been earned outside India has been imposed without establishing as to how the same is attributable to assessee’s PE in India, ignorning the finding of the Assessing Officer that the contract under consideration was a composite and indivisible contract executed in India through the assessee’s PE already in existence in India and therefore, the so-called outside India revenue were taxable in India.

B. Whether on the fact and in the circumstances of the case and in law, the ITAT has erred in setting aside the findings of the AO and in holding, that no finding has been recorded by the AO in attributing profit from outside India revenue to the PE of the assessee ignoring the specific findings of the AO that work relating to the composite contract has been executed in India through a PE. C. Whether on the facts and in the circumstances of the case and in law, the ITAT has erred in proceeding to set aside the assessment order though ITAT has accepted the stand of Revenue that the assessee had a establishment in India, ignoring the fact PE under Article 5(1) or 5(2) cannot have any role other than its involvement in the business activities of the assessee. 2.

The respondent’s counsel submits that between the assessee and the revenue identical questions of law were considered by the Hon’ble Supreme Court in Civil Appeal No.12183 of 2016, which was disposed off on 22.07.2020 and, hence, the same judgment is applicable in this case also. 3.

In view of the submissions made, the appeal is disposed off in terms of the judgment of the Hon’ble Supreme Court passed in Civil Appeal No.12183 of 2016 “Director of Income Tax-II (International Taxation) New Delhi & another vs. M/s Samsung Heavy Industries Co. Ltd.” dated 22.07.2020.

(Alok Kumar Verma, J.) (Ravi Malimath, A.C.J.) SK/JKJ