“Section 90(5)”
The decision most relied on for Section 90(5) is CIT v. Siemens Aktiongesellschaft (310 ITR 320), cited in 259 judgments on BharatTax.
Leading authorities on Section 90(5)
Reimbursements of actual expenses without any profit element are not taxable income. Additionally, mere amendments to the Income-tax Act do not override the provisions of Double Taxation Avoidance Agreements (DTAAs).
Sections 4 and 5 of the Income Tax Act, which define total income and chargeability, are subject to Section 90, meaning that Double Taxation Avoidance Agreements (DTAAs) override the Act's provisions in case of a conflict.
Procedural law serves as an aid to justice, not an obstruction, and should not ordinarily be construed as mandatory; it is subservient to substantive justice.
The claim for Foreign Tax Credit cannot be denied solely due to a delay in filing Form-67, as the requirement for filing Form-67 under Rule 128(9) is considered directory and not mandatory. The provisions of a Double Taxation Avoidance Agreement (DTAA) prevail over the Income-tax Act, 1961.
The burden of proving the existence of a Permanent Establishment (PE) under a Double Taxation Avoidance Agreement (DTAA) rests squarely on the Income Tax Department.
Salary received by a non-resident for services rendered outside India accrues outside India and is not taxable in India. Only salary earned for work performed in India is regarded as income arising in India and is taxable.
The filing of an audit report along with the return of income is directory and not mandatory, meaning non-compliance does not automatically invalidate the return.
An assessee has the option to choose between the provisions of the Income-tax Act and a Double Taxation Avoidance Agreement (DTAA) in any given year, and the non-election of DTAA benefits in one year does not prevent claiming them in subsequent years.
