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31.01.2023

[Physical Hearing/Hybrid Hearing (as per request)]

1.

This appeal concerns Assessment Year (AY) 2009-2010, and is

directed against the order dated 04.01.2022 passed by the Income Tax

Appellate Tribunal [in short, “Tribunal”].

2.

The appellant/revenue has proposed the following questions of law:

“A. Whether on the facts and circumstance of the case and

in law, the Ld. ITAT erred in holding that the amount

received to assessee on account of off-shore supplies in

respect of Teesta and Purulia projects are not taxable under

the provisions of Section 44BBB of the Act?

B. Whether on the facts and circumstance of the case and in

law, the Ld. ITAT erred in holding that the Liaison Office of

the assessee did not constitute a Permanent Establishment,

ITA 53/2023

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liable to tax in India when the said office was clearly a fixed

place and the activities carried out could not be said to be

preparatory or auxiliary in nature?

C. Whether on the facts and circumstance of the case and in

law, the Ld. ITAT erred in holding that Liaison Office of the

assessee does not constitute a PE in India?

D. Whether on the facts and circumstance of the case and in

law, the Ld. ITAT has erred in holding that no income is

liable to be attributed in India as Mitsui India Pvt. Ltd.

(MIPL), the liaison office of the assessee, do not constitute a

Dependent Agency Permanent Establishment (DAPE) of the

assessee in India?

E. Whether on the facts and circumstance of the case and in

law, the Ld. ITAT erred in holding that the assessee's

income from Teesta and Purulia Projects should be taxed

on cash basis instead of Mercantile basis?”

3.

Mr Sanjay Kumar, learned senior standing counsel, who appears on

behalf of the appellant/revenue, says that the questions of law which are

shown as B, C and D hereinabove are covered by a decision of the

coordinate bench rendered on 12.10.2017 in ITA 902/2009 titled Director of

Income Tax v. Mitsui & Co. Ltd.

4.

We may note, that this decision was followed by another coordinate

bench of this Court in ITA 321/2018 via order dated 09.11.2022 titled The

Commissioner of Income Tax - International Taxation-2 v. Mitsui &

Company Ltd.

5.

We may also note, that insofar as the decision in ITA 902/2009 is

concerned, to which reference is made hereinabove, questions shown as B

and C are covered by the decision rendered in that appeal, while the question

shown as D is covered by the decision rendered in ITA 321/2018.

ITA 53/2023

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6.

Given this position, Mr Kumar says, that from amongst the questions

proposed, as set out hereinabove, the appeal is, therefore, confined to

questions shown as A and E. The statement of Mr Kumar is taken on record.

7.

At the request of Mr Kumar, list the appeal on 13.03.2023.

RAJIV SHAKDHER, J

TARA VITASTA GANJU, J

JANUARY 31, 2023 / tr

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ITA 53/2023

page 3 of 3

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.

The Order is downloaded from the DHC Server on 27/01/2024 at 22:45:51