Assistant Director Of Income Tax. ……… v. Gil Mauritius Holdings Ltd

IN THE HIGH COURT OF UTTARAKHAND AT NAINITALIncome Tax Appeal No. 14 of 2012With Delay Condonation Application No. 6261 of 2012 Assistant Director of Income Tax. ………. Appellant Versus GIL Mauritius Holdings Ltd. ..………. Respondent Mr. Hari Mohan Bhatia, Advocate for the appellant. Mr. Salil Kapoor, with Mr. Ankit Gupta and Mr. Chetan Joshi, Advocates for the respondent. JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble U.C. Dhyani, J. BARIN GHOSH, C. J. (Oral) No objection to the Application for condonation of delay in preferring the appeal has been preferred. The learned counsel appearing on behalf of the assessee has also not seriously objected to the Application for condonation of delay in preferring the appeal. We have independently considered the averments made in the Application for condonation of delay in preferring the appeal and, although day-to-day delay has not been explained, but, having regard to the overall situation prevalent, we think that a case has been made out for condonation of delay. We, accordingly, allow the Application. 2. Before ITAT, respondent / assessee held out that it’s income is not taxable in India, inasmuch as, it is a foreign company and has no permanent establishment in India. It was contended by the assessee that it had an assembly project in India, which was carrying out, in addition to assembly, installation of certain items, and that project and other activities were carried out in India for a period less than 9 months. This aspect of the matter, although was highlighted before the Assessing Authority, but no independent inquiry was made to ascertain, whether the assertions of the assessee are true or not. When the matter was taken up before ITAT, it was contended that the said project was functioning in India between 1[st]December, 2006 and 10[th] August, 2007. Despite there being no dispute that the assessee had only an assembly project in India for a period less than 9 months, ITAT did not conclude the matter in favour of the respondent / assessee. Instead, it remitted back the matter to the Assessing Authority for the purpose of ascertaining, whether, in fact, such assertion on the part of the assessee is true or not. The Tribunal, thereafter, directed that, upon ascertainment of the truth and substance of such assertion of the assessee, the matter must proceed. 3. In the circumstances, we find no question of law requiring determination of this Court, except clarifying that, in the event, it is held that the assessee had a permanent establishment during the relevant assessment year in India, it goes without saying that the Assessing Authority would be entitled to take such recourse to law as is permissible against such an assessee under the Income Tax Act. 4. The appeal is, accordingly, disposed of. G (U.C. Dhyani, J.) (Barin Ghosh, C. J.) 19.10.2012 19.10.2012