“double taxation”

MiscellaneousGeneralGeneral4,703 judgments

The decision most relied on for double taxation is DIT v. New Skies Satellite BV (382 ITR 114), cited in 325 judgments on BharatTax.

Leading authorities on double taxation

DIT v. New Skies Satellite BV

382 ITR 114 · 2016 · High Court

325

citing judgments

An amendment to the Income Tax Act, such as the Finance Act, 2012 amendment to Section 9(1)(vi) defining royalty, does not automatically override or alter the definition of 'royalty' as provided in a Double Taxation Avoidance Agreement (DTAA) unless the DTAA itself is bilaterally amended. The definition of royalty in a DTAA remains unaffected by unilateral changes to domestic law.

CIT v. Siemens Aktiongesellschaft

310 ITR 320 · 2009 · High Court

259

citing judgments

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).

Transmission Corporation of Andhra Pradesh v. CIT

239 ITR 587 · 1999 · Supreme Court

243

citing judgments

The Supreme Court lays down principles for deducting tax at source (TDS) under Section 195 on payments to non-residents, including aspects of income deemed taxable in India and the application of Double Taxation Avoidance Agreements (DTAAs) under Section 90.

Raymond Ltd. v. Dy. CIT

86 ITD 791 · 2003 · ITAT

154

citing judgments

For services to qualify as 'Fees for Technical Services' or 'Fees for Included Services' under Double Taxation Avoidance Agreements (DTAAs), they must 'make available' technical knowledge, experience, skill, or processes to the recipient, enabling them to apply such expertise independently.

CIT v. Visakhapatnam Port Trust

144 ITR 146 · 1983 · High Court

124

citing judgments

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.

Assessing Officer (International Taxation) v. Nestle SA

458 ITR 756 · 2023 · Supreme Court

122

citing judgments

The benefit of a Most Favoured Nation (MFN) clause in a Double Taxation Avoidance Agreement (DTAA) is available only upon notification by the Government. A notification under section 90(1) is a necessary and mandatory condition for giving effect to a DTAA or any protocol that alters existing law.

Ms. Brinda Ramakrishna v. ITO

135 Taxmann.com 358 · 2022 · ITAT

109

citing judgments

The filing of Form 67 for claiming Foreign Tax Credit (FTC) is a directory requirement, not mandatory. Rule 128(9) does not provide for disallowance of FTC due to delay in filing this form. Double Taxation Avoidance Agreements (DTAAs) override domestic law.

CIT v. Havells India Ltd.

352 ITR 376 · 2013 · High Court

citing judgments

For royalty income, especially in the context of Double Taxation Avoidance Agreements (DTAA), the 'source of income' is the determinative factor for taxability, rather than merely the 'source of receipt'.

Judgments citing double taxation

Deputy Commissioner of Income Tax, Central Circle-1(2), Bengaluru vs. M/S. Gokula Education Foundation (Medical), Bengaluru

In the result, revenue appeals in ITA Nos

ITA 500/BANG/2021[2012-13]Status: DisposedITAT Bangalore18 Jul 2022AY 2012-13

Bench: Shri Chandra Poojari & Smt. Beena Pillai

For Appellant: Shri V.S. Chakrapani, D.RFor Respondent: Shri V. Chandrashekar, A.R

Section 132Section 143Section 153A

also filed copies of demand notices for these assessment years stating that department is enforcing both the demands which amount to double taxation of same income. We make it clear that the department cannot enforce both the demands, which is created vide assessment

Deputy Commissioner of Income Tax, Central Circle-1(2), Bengaluru vs. M/S. Gokula Education Foundation (Medical), Bengaluru

In the result, revenue appeals in ITA Nos

ITA 499/BANG/2021[2011-12]Status: DisposedITAT Bangalore18 Jul 2022AY 2011-12

Bench: Shri Chandra Poojari & Smt. Beena Pillai

For Appellant: Shri V.S. Chakrapani, D.RFor Respondent: Shri V. Chandrashekar, A.R

Section 132Section 143Section 153A

Toyota Boshoku Automotive India Private Limited, Ramanagaram vs. The Assistant Commissioner of Income Tax, Ltu, Circle-2, Bangalore

In the result, the appeal of the assessee is allowed

ITA 362/BANG/2021[2016-17]Status: DisposedITAT Bangalore18 Jul 2022AY 2016-17

Bench: Shri N.V Vasudevan, Hon’Ble & Shri Laxmi Prasad Sahu

For Appellant: Ms. Hirali Desai, ARFor Respondent: Shri Pradeep Kumar, CIT (DR)

Section 92D

have been earned in India. In the case of seconded employee, if they are tax residents of a country with whom India has Double Taxation Avoidance Agreement (DTAA), Indian tax authorities right to tax salary income would depend on the terms of such treaty. 14.2. In OECD Model Commentary, Article

Mr.Rahil Mahesh Kumar Nizamuddin, Bangalore vs. Deputy Commissioner of Income Tax (International Taxation) Circle-1(2), Bangalore

In the result, the appeal of the assessee is partly allowed

ITA 892/BANG/2019[2014-15]Status: DisposedITAT Bangalore18 Jul 2022AY 2014-15

Bench: Shri Chandra Poojari & Smt. Beena Pillaiassessment Year: 2014-15

For Appellant: Shri K.Y. Ningoji Rao, A.RFor Respondent: Shri V.S. Chakrapani, D.R

Section 48Section 54FSection 55A

subject to tax in the assessment year 2015-16 and cannot be brought to tax in the assessment year 2014-15, which amounts to double taxation. Accordingly, this ground of appeal of assessee is allowed. 12. Ground Nos.12, 13 & 15 are not required for adjudication at this stage

M/S Kable First Private Limited, Bangalore vs. Deputy Commissioner of Income Tax Circle-4(1)(1), Bangalore

In the result, the appeals of the assessee are allowed for statistical purposes

ITA 1696/BANG/2018[2015-16]Status: DisposedITAT Bangalore18 Jul 2022AY 2015-16

Bench: Shri N.V. Vasudevan, Vice Preseident & Shri Padmavathy S

For Appellant: Shri Aliasger Rampurwala, CAFor Respondent: Shri Narayana, K.R., Addl.CIT(DR)(ITAT), Bengaluru

Section 143(2)Section 37(1)Section 40Section 4o

offered any part of the impugned sum of Rs. 1,33,53,000/- as income in the subsequent assessment year, so as to avoid double taxation, if any, arising out of the impugned order. The assessee's grounds of appeal are therefore disallowed, subject to above direction.” 8. The assessee

M/S Kable First Private Limited, Bangalore vs. Assistant Commissioner of Income Tax Circle-4(1)(1), Bangalore

In the result, the appeals of the assessee are allowed for statistical purposes

ITA 1695/BANG/2018[2014-15]Status: DisposedITAT Bangalore18 Jul 2022AY 2014-15

Bench: Shri N.V. Vasudevan, Vice Preseident & Shri Padmavathy S

For Appellant: Shri Aliasger Rampurwala, CAFor Respondent: Shri Narayana, K.R., Addl.CIT(DR)(ITAT), Bengaluru

Section 143(2)Section 37(1)Section 40Section 4o

M/S Kable First India Private Limited, Bangalore vs. Deputy Commissioner of Income Tax Circle-4(1)(1), Bangalore

In the result, the appeals of the assessee are allowed for statistical purposes

ITA 1694/BANG/2018[2013-14]Status: DisposedITAT Bangalore18 Jul 2022AY 2013-14

Bench: Shri N.V. Vasudevan, Vice Preseident & Shri Padmavathy S

For Appellant: Shri Aliasger Rampurwala, CAFor Respondent: Shri Narayana, K.R., Addl.CIT(DR)(ITAT), Bengaluru

Section 143(2)Section 37(1)Section 40Section 4o

Van Oord Dredging and Marine Contractors Bv, Mumbai vs. DCIT (It) 4(3)(1), Mumbai

In the result, the appeal of the assessee is partly allowed

ITA 1382/MUM/2017[2012-13]Status: DisposedITAT Mumbai15 Jul 2022AY 2012-13

Bench: Shri Amit Shukla & Shri Amarjit Singhvan Oord Dredging & Vs. Deputy Commissioner Of Marine Contractors Bv Income-Tax (International 201, 2Nd Floor, Central Taxation)-4(3)(1) Plaza, 166 Cst Road, 16Th Floor, Air India Kalina, Building, Nariman Point, Mumbai - 400098 Mumbai - 400020 स्थायी लेखा सं./जीआइआर सं./ Pan/Gir No: Aaach3500M Appellant .. Respondent

For Appellant: Nishant Thakkar &For Respondent: K.C. Kanojiya

Section 144C(13)Section 92CSection 92C(3)

learned AO/DRP; 19. erred in treating the management service fees received by the Appellant as "Royalty" under Article 12(4) of the Double Taxation Avoidance Agreement (DTAA) between India and the Netherlands as well as fee for technical services under Article 12(5) of India - Netherlands DTAA, thereby making ... draft assessment order, the Assessing Officer treated the aforesaid amount received by the assessee as royalty as per Article–12 of India– Netherland Double Taxation Avoidance Agreement (DTAA) and accordingly, brought it to tax. The assessee challenged the aforesaid addition before learned DRP. ITA No.1382/Mum/2017

Alkyl Amines Chemicals Ltd, Navi Mumbai vs. Dy CIT (OSD) 10(3), Mumbai

In the result, appeal filed by the assessee is partly allowed

ITA 1019/MUM/2020[2011-12]Status: DisposedITAT Mumbai14 Jul 2022AY 2011-12

Bench: Shri S. Rifaur Rahman, Hon'Ble & Shri Sandeep Singh Karhail, Hon'Blem/S. Alkyl Amines Chemicals Ld., V. Dcit (Osd)-10(3) 401-407, Nirman Vyapar Kendra Room No. 517, 4Th Floor Plot No. 10, Sector – 17 Aayakar Bhavan, M.K. Road Vashi, Navi Mumbai – 400703 Mumbai - 400020 Pan: Aaaca6783F (Appellant) (Respondent) Assessee By : Ms. Shruti Agarwal Department By : Shri Mehul Jain

For Appellant: Ms. Shruti AgarwalFor Respondent: Shri Mehul Jain

Section 10Section 143(1)Section 143(2)Section 14ASection 195Section 40

disallowance u/s.40(a)(i) would not be warranted. Without prejudice to the above, the Appellant further submits that as per the provisions of the Double Taxation Avoidance Agreement ("DTAA") with the related countries, business profits are taxable only in the contracting state and not in the other contracting state

M/S Subex Limited, Bangalore vs. Income Tax Officer Ward-6(1)(4), Bangalore

In the result, the appeal filed by the assessee stands partly allowed

ITA 107/BANG/2019[2014-15]Status: DisposedITAT Bangalore14 Jul 2022AY 2014-15

Bench: Smt. Beena Pillai & Shri. Laxmi Prasad Sahuit(Tp)A No. 107/Bang/2019 Assessment Year : 2014-15 M/S. Subex Ltd., Rmz Ecoworld, The Income Tax Outer Ring Road, Officer, Devarabisanahalli, Ward – 6 (1)(4), Bangalore – 560 103. Bangalore. Vs. Pan: Aabcs9255R Appellant Respondent Assessee By : Shri Ajay Rotti, Ca : Shri Sunil Kumar Singh, Cit- Revenue By Dr Date Of Hearing : 07-06-2022 Date Of Pronouncement : 14-07-2022 Order Per Beena Pillaipresent Appeal Is Filed By Assessee Against Order Dated 26/10/2018 Passed By Ld.Ito, Ward – 6(1)(4), Bangalore For A.Y. 2014-15 On Following Grounds Of Appeal: “The Grounds Stated Hereunder Are Independent Of & Without Prejudice To One Another. The Appellant Submits As Under: 1. Assessment & Reference To Learned Transfer Pricing Officer Are Bad In Law 1.1. The Income Tax Officer. Ward — 6(1)(4), Bangalore (Learned Assessing Officer Or 'Ld. Ao') Erred In Making A Reference To The Deputy Commissioner Of Income-Tax, Transfer Pricing —Range 2(2)(1) (Learned Transfer Pricing Officer' Or 'Ld. Tpo'), Inter Alia, Since He Has Not Recorded

For Appellant: Shri Ajay Rotti, CA

Section 143(3)Section 144C(13)Section 92C(3)

working capital adjustment subsumes sundry creditors. In such situation computing interest on outstanding receivables as loans and advances to associated enterprise would amount to double taxation. Hon’ble Delhi Tribunal in case of Orange Business Services India Solutions Pvt. Ltd. vs. DCIT in ITA No. 6570/Del/2016 vide its order dated

Kiran S Patel, Mumbai vs. ADIT, CPC, Bengaluru

In the result, the appeal of the assessee is allowed for statistical purposes

ITA 233/MUM/2022[2019-20]Status: DisposedITAT Mumbai13 Jul 2022AY 2019-20

For Appellant: Shri Chetan K. DhabaliaFor Respondent: Shri Rajesh Ojha, (Sr. AR)

Section 143(1)Section 205

assessee would be liable to pay tax once again even though the tax was deducted at source. Thus, it would be a case of double taxation which is not permissible in law. To avoid such anomaly, Section 205 has been enacted, to the effect that, once the tax is deducted

M/S Kennametal Inc, United States of America vs. Deputy Commissioner of Income Tax (International Taxation) Circle-1(2), Bangalore

In the result, the appeal for AY 2014-15 is treated as allowed for statistical purpose while the appeal for AY 2012-13

ITA 1658/BANG/2017[2014-15]Status: DisposedITAT Bangalore13 Jul 2022AY 2014-15

Bench: Shri Chandra Poojari & Smt. Beena Pillaiassessment Year: 2014-15

For Appellant: Shri K.R. Vasudevan &For Respondent: Shri Dilip, Standing Counsel for Dept

Section 143(3)

Internaitonal Hotel Licensing Company Sarl, Mumbai vs. DCIT (It) RG 2(2)(1), Mumbai

In the result, appeal by the assessee is allowed for statistical purpose

ITA 2951/MUM/2019[2009-10]Status: DisposedITAT Mumbai12 Jul 2022AY 2009-10

Bench: Shri Pramod Kumar & Shri Sandeep Singh Karhail

For Appellant: Shri Paras Salva a/wFor Respondent: Shri Milind Chavan

Section 143(3)Section 250Section 253(1)

exist in isolation of payment of Royalty for Marriot Brand. 28. Let us consider this receipt of Royalty income in accordance with provisions of double Taxation Avoidance Agreement. Under Double Taxation Avoidance Agreement, income is not determined, but tax is determined as a fixed per cent of gross RECEIPT

M/S. Subex Limited, Bangalore vs. Deputy Commissioner of Income Tax, Circle- 6(1)(2), Bangalore

In the result, the appeal filed by the assessee stands partly allowed

ITA 2579/BANG/2019[2015-16]Status: DisposedITAT Bangalore11 Jul 2022AY 2015-16

Bench: Shri Chandra Poojari & Smt. Beena Pillaiit(Tp)A No. 2579/Bang/2019 Assessment Year : 2015-16 M/S. Subex Ltd., The Deputy Rmz Ecoworld, Commissioner Of Outer Ring Road, Income Tax, Devarabisanahalli, Circle – 6(1)(2), Bangalore – 560 103. Vs. Bangalore. Pan: Aabcs9255R Appellant Respondent Assessee By : Shri Ajay Rotti, Ca : Shri Sumer Singh Meena, Revenue By Cit-Dr Date Of Hearing : 11-07-2022 Date Of Pronouncement : 11-07-2022 Order Per Beena Pillaipresent Appeal Is Filed By Assessee Against The Final Assessment Order Dated 23/10/2019 Passed By Ld.Dcit, Circle – 6(1)(2), Bangalore For A.Y. 2015-16 On Following Grounds Of Appeal: “The Grounds Stated Hereunder Are Independent Of & Without Prejudice To One Another. The Appellant Submits As Under: 1. Erroneous Transfer Pricing Adjustments Arising From Interest On Trade Receivables 1.1. The Deputy Commissioner Of Income Tax, Circle - 6(1)(2), Bangalore (Learned Assessing Officer' Or 'Ld. Ao') / Assistant Commissioner Of Income Tax, Transfer Pricing Circle - 1(3)(1) ('Learned Transfer Pricing Officer' Or 'Ld.

For Appellant: Shri Ajay Rotti, CA

Section 234ASection 234BSection 271(1)(c)

Ayush Multitrade Pvt Ltd., Mumbai vs. ITO Ward 12(1)(2), Mumbai

In the result appeal of the assessee is partly allowed

ITA 392/MUM/2020[2011-12]Status: DisposedITAT Mumbai07 Jul 2022AY 2011-12

Bench: Shri Pavan Kumar Gadale & Shri Gagan Goyalayush Multitrade Pvt. Ltd. Mehta House, A/F-3, Cama Industrial Estate, Off Western Express Highway, Goregaon (E), Mumbai-400063 Pan: Aajca0364M ...... Appellant Vs. The Ito, Ward-12(1)(2), Room No. 146A, 1St Floor, Aayakar Bhavan, M.K. Road, Mumbai-400020. ..... Respondent Appellant By : Sh. Sanjiv M. Shah & Rajesh Chamaria Respondent By : Sh. Indira Adakil, Cit-Dr Date Of Hearing : 13/04/2022 Date Of Pronouncement : 07/07/2022 Order Per Gagan Goyal, A.M:

For Appellant: Sh. Sanjiv M. Shah & Rajesh ChamariaFor Respondent: Sh. Indira Adakil, CIT-DR

Section 132Section 132(4)Section 143(2)Section 147Section 148Section 68

subscribe to shares of alleged shell companies and addition of the alleged amount was already made in the case of group company, resulting into double taxation. (5) Appellant prays for leave to add, amend or delete any ground/s of appeal on or before the final date of hearing.” 2. Brief

Interactive Avenues Pvt. Limited, Mumbai vs. DCIT 14(2)(1), Mumbai

In the result, the appeal of the assessee is allowed

ITA 3130/MUM/2019[2015-16]Status: DisposedITAT Mumbai07 Jul 2022AY 2015-16

Bench: Us :-

Section 143(3)Section 40

located in Ireland and other two are 15 M/s. Interactive Avenues Pvt. Ltd., companies located in USA. We notice that India has entered into Double Taxation Avoidance Agreement (DTAA) with Republic of Ireland and also with United States of America. The question whether the provisions of Income tax Act could

Vena Energy Patan Power Private Limited, Bangalore vs. Deputy Commissioner of Income Tax, Central Circle- 2(2), Bangalore

In the result, the appeal is allowed in favour of the assessee

ITA 198/BANG/2021[2016-17]Status: DisposedITAT Bangalore07 Jul 2022AY 2016-17

Bench: Shri George George K. & Ms. Padmavathy S

For Appellant: Shri Padamchand Khincha, CAFor Respondent: Smt. Susan Dolores George, CIT(OSD)(DR)

Section 115JSection 143(3)Section 40

loan is to be repaid normally determines the rate of return on the money lent, i.e. the rate of interest. Klaus Vogel on Double Taxation Conventions (Third Edition) under Article 11 in paragraph 115 states as under:- "The existing differences in the levels of interest rates do not depend