S. 9(1)(vi) : Income deemed to accrue or arise in India-Royalty-Non-resident-Use of equipment-Right to use-Source code of licensed software not provided to customers who had no right to exploit assessee’s intellectual property rights-Receipts not royalty or fees for included services-DTAA-India-United States of America [S. 144C(13) 147, Art. 12(3), 12(4)(b)]

S. 9(1)(i) : Income deemed to accrue or arise in India-Business connection-Non-resident-Permanent establishment-Disposal test-Fixed place PE-High Court correct in concluding that assessee’s ability to enforce compliance, oversee operations, and derive profit-linked fees from hotel’s earnings demonstrated clear and continuous commercial nexus and control with hotel’s core functions which satisfied conditions necessary for constitution of fixed place permanent establishment Income received under strategic oversight services agreement attributable to such permanent establishment and taxable in India-DTAA-India-United Arab Emirates (1994) 205 ITR 49 (St). [S. 9(1)(iv), 9(1)(vi), 9(1)(vii), Art. 4, 5(1), 12]

S. 276C : Offences and prosecutions-Wilful attempt to evade tax-Search and seizure-Settlement commission-Cash during election expenditure monitoring-Undisclosed income-Admitting in sworn statement that seized cash was undisclosed income of assessment year 2016-2017-Prosecution initiated-Application filed by assessee before Settlement Commission for assessment year 2016-2017 after initiation of prosecution-Question of fact to be proved at trial-Settlement for different assessment years not ground for quashing criminal proceedings-Authorisation-Commissioner Definition Principal Director competent authority to authorise Deputy Director (Investigation) for initiation of prosecution. [S. 2(16), 132(4). 245C, 276C(1), Criminal Procedure Code, 1973, S. 482.]

S. 276C : Offences and prosecutions-Wilful attempt to evade tax-Penalty waived-Circular of Board and prosecution manual of Department providing for prosecution only in cases where penalty exceeding Rs. 50,000 imposed-Circular binding on revenue-Circulars dated 24-4-2008 and 9-9-20191-Circular binding on revenue-Settlement Commission granting immunity-continuation of prosecution an abuse of process of law-Strictures-Costs of Rs. 2,00,000 was awarded against the Department, payable to the appellant. [S. 119, 245H, 245I, 279(IA), Art. 226]

S. 275 : Penalty-Bar of limitation-Cash transactions-Date for reckoning period of limitation proceeding based on reference by Assessing Officer Show-cause notice-Held, limitation to be reckoned from date of reference and not from date of issuance of notice by competent authority-Penalty order barred by limitation-Interpretation of taxing statutes Purposive interpretation-Absence of condonation provision to imply strict adherence to prescribed period-Courts cannot expand statutory timelines-Circular No. 9/DV/2016 dated April 26, 2016 ((2016) 383 ITR (St.) 21) [S. 269SS, 271D, 275(1)(c)]

S. 275 : Penalty-Bar of limitation-Penalty for failure to deduct tax at source-Date of commencement for determining limitation period-Date of reference by Assessing Officer-Show-cause notice issued after a year of delay by Joint Commissioner on receipt of reference by Assessing Officer-Penalty proceedings barred by limitation. [S. 260A, 271C, 275(1)(c)]

S. 260A : Appeal-High Court-Jurisdiction of High Court-Additional question of law raised for first time in High Court-Merger-Assessment in name of non-existent entity-Assessment order passed-on non-existent entity is void question involving jurisdictional issue not raised before Tribunal-Additionally proposed questions of law involved in these appeals and hence included.[S. 143(3), 260A(4)]

S. 260A : Appeal-High Court-Power of review-Process of reasoning is not an error apparent on face of record-Mistake or error apparent Neither inherent nor appellate power Earlier order cannot be recalled or reviewed unless court is satisfied that material error is manifest on face of record Error that is not self-evident and one that has to be detected by process of reasoning is not an error apparent on face of record-Decision or order cannot be reviewed merely because it is erroneous.[Civil Procedure Code, 1908, 0. 47, R 1.]

S. 254(1): Appellate Tribunal-Powers-Condonation of delay-Search and seizure-Cross objection-Rejection of assessee’s cross-objections on ground barred by limitation-Order of Tribunal quashed and set aside-Tribunal directed to hear cross-objections filed by assessee along with appeal filed by Department.[S. 132, 158BC, 253(5), 254(2), 260A.]

S. 237 : Refunds-Refund Rectification applications-Strictures-Refund amount not paid despite earlier court order Department failed to provide instructions despite time granted-Department directed to refund undisputed amount of refund-If the amount was not refunded within two weeks, liberty was granted to the assessee to revive the present application and the presence of the Assessing Officer in the court would be called for.[S. 143(1) 154, Art. 226]