FOSECO INTERNATIONAL LTD,MUMBAI vs. DCIT (IT) CIR 2(3)(1), MUMBAI

Learned AR submitted that the assessee erroneously offered income at higher rate of 15.45% as per DTAA entered between India and UK. However, withholding the tax applicable on the said income under the provisions of section 115A(1)(b) of the Income tax Act is 10.506% . Accordingly the assessee put forth a claim before the Assessing Officer to apply provisions of section 115A(1)(b) of the Act, as it is more beneficial to the assessee. The Assessing Officer refused to admit said claim by following the decision rendered by Hon'ble Supreme Court in the case of Goetz India Ltd. Vs. CIT (2006) 157 Taxman 1. The learned CIT(A) also uphold the same.

Learned AR submitted that the decision rendered by Hon'ble Supreme Court in the case of Goetz India Ltd. (supra) does not impinge on the power of the Income Tax Appellate Tribunal. He submitted that the assessee is making a claim as per the provisions of the Act. Accordingly the learned AR submitted that the Tribunal may be pleased to admit the claim of the assessee and restore the same to the file of the Assessing Officer for adjudicating the issue afresh.

We heard learned DR and perused the record. We noticed that the assessee is pleading that its income should be assessed as per provisions of section 115A(1)(b) of the Act as it is more beneficial to it than the rate prescribed under DTAA. According to Ld A.R, the assessee is making the claim in accordance with law. Hence we admit this claim of the assessee. Since the claim of the assessee has not been examined by the AO, we restore the same to the file of the Assessing Officer in order to examine the claim of the assessee. After affording adequate opportunity of being heard, the AO may take appropriate decision in accordance with law.

In the result, appeal filed by the assessee is treated as allowed. Order has been pronounced in the Court on 28.02.2018.