Nma v. Epcos Ag Germany

kps IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2533 OF 2009 ININCOME TAX APPEAL NO.770 OF 2009 The Director of Income Tax...Appellant-Versus-EPCOS AG Germany...Respondent ........... Mr.Vimal Gupta, Senior Advocate with Ms.Padma Divakar, for the Appellant/ Revenue. Mr.Sunil Moti Lala with Mr.Prashant Maheshwari i/by Mr.Atul K. Jasani, for the Respondent/ Assessee. ...........CORAM: S.C. DHARMADHIKARIAND GIRISH S. KULKARNI, JJ. DATE :- 07[th] May, 2014 P.C.: 1Having heard Mr.Gupta, learned Senior Counsel appearing for the Appellant/ Revenue and the learned counsel appearing for the Respondent/ Assessee and perusing the Notice of Motion and the Affidavit in support, we are satisfied that sufficient cause is made out for absence of the Revenue on the given date. The Notice of Motion and the Affidavit in support shows that there is no lack of bonafide on the part of the Revenue. In the light of the inadvertent mistake we recall the order dated 26.06.2009 and restore the Income Tax Appeal No.770/2009 to the file of this Court. The Notice of Motion is, accordingly, allowed. No order as to costs. (GIRISH S. KULKARNI, J.) (S.C. DHARMADHIKARI, J.) IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.770 OF 2009 The Director of Income Tax. ..Appellant -Versus-EPCOS AG Germany...Respondent ........... Mr.Vimal Gupta, Senior Advocate with Ms.Padma Divakar, for the Appellant/ Revenue.Mr.Sunil Moti Lala with Mr.Prashant Maheshwari i/by Mr.Atul K. Jasani, for the Respondent/ Assessee. ........... CORAM: S.C. DHARMADHIKARIAND GIRISH S. KULKARNI, JJ. DATE :- 07[th] May, 2014 P.C.: 1The Income Tax Appeal No.770/2009 is taken up for admission together with the Income Tax Appeal No.2557/2011 which is on Board today. 2Having heard the learned counsel appearing for the parties and perusing the order passed by the Income Tax Appellate Tribunal, we are of the opinion that the Appeal raises a substantial question of law. It is ADMITTED on the following substantial questions of law:- (1)Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal erred in holding that the Assessee does not have a PE in India against the finding of the Assessing Officer that the functions of EPCOS AG are performed the case, the Income Tax Appellate Tribunal erred in holding that the Assessee does not have a PE in India against the finding of the Assessing Officer that the functions of EPCOS AG are performed (3) through the Indian Subsidiaries by issuance of directions through emails etc. and the entire spectrum of activities of the Indian Subsidiaries are monitored by the Assessee thus having control and management of Indian Subsidiaries and thereby constituting a PE in India? Whether on the facts and in the circumstances of the case, the learned Income Tax Appellate Tribunal erred in law by concluding that a Double Taxation Avoidance Agreement (DTAA) is an alternative taxation regime and not an exemption regime and that DTAA is for the purpose of shifting onus on the Department to prove to the contrary in respect of the exemption claimed by the Assessee? Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal erred in law by holding that even if a PE exists but if the receipts sourced from India are not attributable to the PE, then the case of the Assessee would still fall under Article 12(2) and exclusion clause provided in Article 12(5) would not be invoked thereby not triggering Article 7 of the Treaty for the rate purposes? 3The Respondent waives service. 4 To be heard along with the Income Tax Appeal No.2557/2011. (GIRISH S. KULKARNI, J.) (S.C. DHARMADHIKARI, J.)