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“tax treaty”

Chapter X-A - GAARSection 102(11)Section 102(11)1,494 judgments

The decision most relied on for tax treaty is Union of India v. Azadi Bachao Andolan (263 ITR 706), cited in 691 judgments on BharatTax.

Leading authorities on tax treaty

Union of India v. Azadi Bachao Andolan
263 ITR 706 · 2003 · Supreme Court
691
citing judgments

A citizen is free to carry on business within the law, and mere tax planning without a motive to evade taxes through colorable devices is not frowned upon. The liability to taxation, for the purpose of tax treaty application, is a legal situation, not the fiscal fact of actual payment.

Asia Satellite Telecommunications Co. Ltd. v. DIT
332 ITR 340 · 2011 · High Court
359
citing judgments

Payments for the use of equipment, such as satellite transponders, do not constitute 'royalty' under Section 9(1)(vi) of the Income-tax Act, 1961, or under applicable tax treaties, especially when there is no transfer of the right to use a process or underlying technology.

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.

India Vs. Azadi Bachao Andolan 263 ITR 706 (SC); and Vodafone International Holdings B.V v. Union of India
341 ITR 1 · 2012 · Supreme Court
295
citing judgments

Legitimate tax planning is permissible, allowing taxpayers to arrange their affairs to minimize tax liabilities while respecting the "look at test" for transaction genuineness and the separate entity principle in corporate taxation. The source of funds for treaty-beneficial structures does not automatically invalidate the transaction.

DIT v. Infrasoft Ltd.
39 Taxmann.com 88 · 2013 · High Court
269
citing judgments

Payments for the use of copyrighted software, without the transfer of any rights in the underlying copyright itself, do not constitute 'royalty' under the Income-tax Act or tax treaties. Such payments are often treated as business income, taxable only if a permanent establishment exists.

Motorola Inc. v. Dy. CIT
95 ITD 269 · 2005 · High Court
213
citing judgments

Revenue must demonstrate the existence of a Permanent Establishment (PE) of a foreign enterprise in India, including establishing that transactions underlying a Dependent Agent PE were not at arm's length. Income from the sale of goods is not taxable in India if title and risk in the goods pass outside India.

(i) Formula One World Championship Ltd. v. CIT
394 ITR 80 · 2017 · Supreme Court
200
citing judgments

This case provides foundational principles that illuminate the contours of the concept of 'Permanent Establishment' (PE) under tax treaties, especially regarding a 'fixed place' PE.

DIT v. Guy Carpenter & Co Ltd.
346 ITR 504 · 2012 · High Court
171
citing judgments

For fees for technical services to be taxable under a tax treaty's 'make available' clause, a transfer of technology enabling the recipient to independently perform the service in the future is necessary, beyond mere service rendition. The case also clarifies that re-insurance services do not constitute 'imparting' of information taxable as royalty.

Judgments citing tax treaty

General Motors Overses Disribution Coporation, Usa vs. ACIT Circle International Taxation 1(3)(1), New Delhi

The appeal of the assessee is allowed

ITA 2360/DEL/2022[2015-16]Status: DisposedITAT Delhi05 Sept 2024AY 2015-16

Bench: Dr. B.R.R. Kumar & Shri Anubhav Sharmaassessment Year: 2014-15 General Motors Company Usa, Vs Acit, Circle International 1209 Orange Street, Taxation 1(3)(1), Wilmington Delaware New Delhi – 110 002 United States, Zip Code - 19801 (Pan: Aaecg5571H) (Appellant) (Respondent) Assessment Year: 2015-16 General Motors Overseas Vs Acit, Circle International Distribution Corporation, Usa Taxation 1(3)(1), 2711, Centreville Roadnew Castle New Delhi – 110 002 County, Wilmington, Usa-19808 (Pan: Aaecg5571H) (Appellant) (Respondent) Assessee By : Shri Ajay Vohra, Sr. Adv., Shri Vishal Kalra, Adv., Shri Ss Tomar, Adv. & Shri Sumeet Hemkar, Ca Revenue By : Shri Vizay B. Vasanta, Cit-Dr Date Of Hearing : 05.07.2024 Date Of Pronouncement : 05.09.2024 Order Per Anubhav Sharma, Jm:

For Appellant: Shri Ajay Vohra, Sr. Adv., Shri VishalFor Respondent: Shri Vizay B. Vasanta, CIT-DR
Section 115ASection 148Section 234BSection 234c

member for purposes of payment of tax. While the phrase ‘liable to tax' has not been defined or explained in India-US tax treaty, as per Article 4 of the Organization for Economic Cooperation and Development ("OECD') commentary 2017, a person is considered to be liable to comprehensive taxation even ... legal situation: payment of tax is a fiscal fact. The Court had noted that for the purpose of application of Article 4 of a tax treaty, what is relevant is the legal situation, namely liability to taxation, and not the fiscal fact of actual payment of tax. The relevant extracts

General Motors Company, Usa vs. ACIT Circlr International Taxation 1(3)(1), New Delhi

The appeal of the assessee is allowed

ITA 2359/DEL/2022[2014-15]Status: DisposedITAT Delhi05 Sept 2024AY 2014-15

Bench: Dr. B.R.R. Kumar & Shri Anubhav Sharmaassessment Year: 2014-15 General Motors Company Usa, Vs Acit, Circle International 1209 Orange Street, Taxation 1(3)(1), Wilmington Delaware New Delhi – 110 002 United States, Zip Code - 19801 (Pan: Aaecg5571H) (Appellant) (Respondent) Assessment Year: 2015-16 General Motors Overseas Vs Acit, Circle International Distribution Corporation, Usa Taxation 1(3)(1), 2711, Centreville Roadnew Castle New Delhi – 110 002 County, Wilmington, Usa-19808 (Pan: Aaecg5571H) (Appellant) (Respondent) Assessee By : Shri Ajay Vohra, Sr. Adv., Shri Vishal Kalra, Adv., Shri Ss Tomar, Adv. & Shri Sumeet Hemkar, Ca Revenue By : Shri Vizay B. Vasanta, Cit-Dr Date Of Hearing : 05.07.2024 Date Of Pronouncement : 05.09.2024 Order Per Anubhav Sharma, Jm:

For Appellant: Shri Ajay Vohra, Sr. Adv., Shri VishalFor Respondent: Shri Vizay B. Vasanta, CIT-DR
Section 115ASection 148Section 234BSection 234c

member for purposes of payment of tax. While the phrase ‘liable to tax' has not been defined or explained in India-US tax treaty, as per Article 4 of the Organization for Economic Cooperation and Development ("OECD') commentary 2017, a person is considered to be liable to comprehensive taxation even ... legal situation: payment of tax is a fiscal fact. The Court had noted that for the purpose of application of Article 4 of a tax treaty, what is relevant is the legal situation, namely liability to taxation, and not the fiscal fact of actual payment of tax. The relevant extracts

Tyco Electronics Singapore Pte Limited, Bangalore vs. DCIT, Circle- Int. Tax. 3(1)(1), Delhi

The appeal is allowed

ITA 1760/DEL/2022[2017-18]Status: DisposedITAT Delhi05 Sept 2024AY 2017-18

Bench: Dr. B.R.R. Kumar & Shri Anubhav Sharmaassessment Year: 2017-18 Tyco Electronics Singapore Vs Dcit, Pte Limited, Circle Intl. Taxation Te Park-22B, Doddenakundi 3(1)(1), 2Nd Phase Industrial Area, Delhi. Whitefield Road, Bengaluru – 560 048, Karnataka. Pan: Aadct9910C (Appellant) (Respondent) Assessee By : Shri Ajay Vohra, Sr. Advocate & Ms Somya Jain, Ca Revenue By : Shri Vizay B. Vasanta, It-Dr & Shri Anshul, Sr. Dr Date Of Hearing : 05.07.2024 Date Of Pronouncement : 05.09.2024 Order Per Anubhav Sharma, Jm: This Appeal Is Preferred By The Assessee Against The Final Assessment Order Dated 23.06.2022 Passed U/S 143(3) R.W.S. 144C(13) Of The Income Tax Act, 1961 (Hereinafter Referred As ‘The Act’), By Assessing Officer, Circle Int. Taxation 3(1)(1), Delhi (Hereinafter Referred To As The Ld. Ao).

For Appellant: Shri Ajay Vohra, Sr. Advocate &For Respondent: Shri Vizay B. Vasanta, IT-DR &
Section 143(3)

facts and circumstance that the entity has been formed and operated in a manner that the only intention was to take benefit of the tax treaty without there being actual intention of an economic activity. As for this proposition we rely a co-ordinate bench decision in case of Tiger ... relating to business are taken in Singapore. 9 6.2 It was also pleaded that as per Article 24A (‘Limitation of Benefit’) of India-Singapore Tax Treaty, “A shell or conduit company is any legal entity falling within the definition of resident with negligible or nil business operations or with