epcos ag germany
TRANSCRIPT
Bombay
Hig
h Court
*1* nma.2533.09.itxa.770.09.902
kps
IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.2533 OF 2009IN
INCOME TAX APPEAL NO.770 OF 2009
The Director of Income Tax. ..AppellantVersus
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. DHARMADHIKARI
AND GIRISH S. KULKARNI, JJ.
DATE : 07th May, 2014P.C.:
1 Having 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.)
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Bombay
Hig
h Court
*2* nma.2533.09.itxa.770.09.902
IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION
INCOME TAX APPEAL NO.770 OF 2009
The Director of Income Tax. ..AppellantVersus
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 : 07th May, 2014
P.C.:
1 The 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.
2 Having 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
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Bombay
Hig
h Court
*3* nma.2533.09.itxa.770.09.902
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?
(2) 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?
(3) 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?
3 The Respondent waives service.
4 To be heard along with the Income Tax Appeal
No.2557/2011.
(GIRISH S. KULKARNI, J.) (S.C. DHARMADHIKARI, J.)
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