Director Of Income Tax And Another ……… v. Saipem Uk Limited

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Income Tax Appeal No. 13 of 2009 Director of Income Tax and another ……….. Appellants Versus Saipem UK Limited ……….. Respondent Present: Mr. H.M. Bhatia, Advocate for the appellants. Mr. Saubhagya Agarwal, Advocate for the respondent. Coram: Hon’ble Barin Ghosh, C.J.Hon’ble Servesh Kumar Gupta, J. BARIN GHOSH, C.J. (Oral) A certificate was issued in favour of Buda, a juristic entity carrying on business at and from Netherlands on 14[th]January, 1998 under Section 197 of the Income Tax Act, 1961 on the basis of terms and conditions specified in the letter of intent dated 23[rd] December, 1997. Certain payments were made to Buda by the assessee. While those payments were made, recourse to deduction of tax at source was not taken. To that extent, assessee was made liable. Having had failed in the appeal, assessee went before the Tribunal and got relief. The Tribunal noticed two facts, namely, that no attempt has been made by the appellant to show that the payment that was made to Buda and in respect whereof tax was not deducted by the assessee was not covered by the letter of intent dated 23[rd] December, 1997, and that, the Assessing Officer has found, as a fact, that Buda did not have any permanent establishment in India during the relevant accounting year and, as such, its income was not liable to be taxed in India in terms of Article 7 of Indo-Netherlands Tax Treaty. These are factual findings, which have not been disputed in the grounds of appeal. In the grounds of appeal, however, it has been contended that the payment was made in August 1997, whereas the letter of intent is of 23[rd] December, 1997. This is a new fact, which has been brought on record as that has not been dealt with in the order of the Tribunal. Be that as it may, the most important aspect is that, it has not been contended in the grounds of appeal that the payment was not covered by the letter of intent dated 23[rd] December, 1997. We, accordingly, dismiss the appeal. ( Servesh Kumar Gupta, J.) (Barin Ghosh, C.J.) 04.12.2013 04.12.2013 04.12.2013 04.12.2013 P. Singh