IN THE INCOME TAX APPELLATE TRIBUNAL DELHI (DELHI BENCH ‘D’ NEW DELHI)

BEFORE SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER AND SHRI YOGESH KUMAR U.S., JUDICIAL MEMBER ITA No. 972/DEL/2025 (A.Y. 2022-23)

Eleentec Co. Ld. Vs. Deputy/Assistant

37 Samsung-RO268 Beon-Gil Director of Income Tax, Yeongtong-GU, Gyeonggi DO International Taxation, Republic of Korea Noida, Uttar Pradesh PAN: AAFCE6530P Appellant Respondent Assessee by Sh. Himanshu S. Sinha, Adv, Sh.

Prashant Mehar Chandani, Adv& Sh.

Jainender Singh Kataria, Adv Revenue by Sh. M.S. Nethrapal, CIT DR Date of Hearing 19/08/2025 Date of Pronouncement 28/08/2025 ORDER PER YOGESH KUMAR, U.S. JM:

This appeal is filed by the assessee pertaining to Assessment Year

2022-23 challenging the Final Assessment Order passed by Deputy Commissioner of Income Tax DDIT/ADIT, International Taxation, Nodia dated 20/01/2025 u/s143(3) r.w. Section 144C(13) of the Income Tax Act, 1961 ('Act' for short).

2. The grounds of Appeal are as under:-

“1. That on the facts and circumstances of the case and in law, the Ld. AO has erred in passing the assessment order dated January 20, 2025, beyond the prescribed limitation period under Section 153(1) of the Income-tax Act, 1961, rendering the order void ab initio. 2. That on the facts and circumstances of the case and in law, the Ld. AO erred in attributing 1.05% of the offshore sales, leading to an addition of Rs.2, 14,94,417/-, to the alleged Permanent Establishment ("PE") of the Appellant in India without properly appreciating that there is no PE of the Appellant in India.

On the existence of supervisory/installation PE

3. That on the facts and circumstances of the case and in law, the Ld. AO erred in holding that there is a PE in India under Article 5(3) of the India-Korea Double Taxation Avoidance Agreement ("DTAA")

on pure surmises and conjectures.

4. That on the facts and circumstances of the case and in law, the Ld. AO has erred in alleging that personnel (Mr. Park Shinkyu and Mr. Kim Khitwan) for whom travel reimbursement has been made to the Appellant are employees of the Appellant, ignoring the copious evidence submitted by the Appellant to show that these are employees of Elentec Power India Private Limited.

5. That on the facts and circumstances of the case and in law, the Ld. AO has erred in assuming the existence of a PE in India under Article 5(3) of the India-Korea DTAA based on the travel of two employees (Mr. Park Shinkyu and Mr. Kim Khitwan) without appreciating that they are employees of Elentec Power India Private Limited and not the Appellant, thereby making the assumption of PE purely on surmises and conjectures.

Without prejudice to the ground that there is no supervisory/installation PE in India, no attribution can be made in respect of offshore supply

6. Without prejudice to the primary contention of the Appellant that there is no supervisory/installation PE in India, no profit attribution can be made with respect to the offshore supplies as the same is made before the constitution of PE in India. Further, no attribution can be made as the risk and title in respect of the offshore supply has passed outside the territory of India.

On the issue of secondment

7. That on the facts and circumstances of the case and law, the Ld. AO has erred in holding that employees have been seconded to India, whereas no employees have been seconded to India during the subject year.

On the inter-connection of offshore sales with technical know-how

8. That on the facts and circumstances of the case and in law, the Ld. AO has erred in holding that 'Purchase and Sale Agreement' and 'Royalty and Technical agreement' with Elentec India Private Limited are composite in nature whereas both are separate and distinct agreements. The Ld. AO has failed to appreciate that there is no nexus between the offshore supply and provision of technical know-

how by the Appellant.

9. That on the facts and circumstances of the case and in law, the Ld. AO erred in attributing the profits in respec