Assessee claimed to have provided assistance on principle to principle basis to Indian company on few transactions and received fees and guarantee commission—Amounts received under aforesaid category were not offered to tax in India on ground that Assessee did not have permanent establishment in India. AO held that Indian Company was permanent establishment of Assessee within meaning of Article 5(5) of DTAA hence, certain percentage of sums under category referred above were taken as profits attributable to permanent establishment. CIT(A) passed detailed order that Assessee neither had fixed place of business nor agency or any other form of permanent establishment in India and consequently income of Assessee was not taxable in India. Tribunal remanded matter back to AO.. On appeal the Court held that There was nothing on record to prove that provisions of Article 5(1) of Agreement were applicable—Assessee was not having fixed place of business in India. Hence, First Appellate Authority rightly held that provisions of Article 5(1) were inapplicable. Tribunal could have summoned all records and thereafter should have arrived at categorical conclusion whether First Appellate Authority was right or AO. This having admittedly not been done, court was of firm opinion that Tribunal failed to act as last fact finding authority. It failed to discharge its duty and function expected of it by law. Tribunal is directed to decide  afresh . ( AY. 2002 -2003 , 2004 -05 , 2005 -06)