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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

Deputy Commissioner of Income Tax (It)-3(2)(1), Mumbai vs. M/S Marriott International Design & Construction Services Inc., Mumbai

In the result the appeal filed by the Assessing Officer is thus dismissed

ITA 2977/MUM/2022[2018-2019]Status: DisposedITAT Mumbai02 May 2023AY 2018-2019

Bench: Shri Amit Shukla, Hon'Ble & Shri S. Rifaur Rahman, Hon'Bledcit (It) – 3(2)(1) V. M/S. Marriott International Design Room No. 1632, 16Th Floor & Construction Services Inc., Air India Building, Nariman Point C/O. Marriot Hotels India Pvt. Ltd., Mumbai – 400 021 303A, 304, Fulcrum B-Wing, Hiranandani Business Park Mumbai, Sahar Road Andheri (E) - 400099 Pan: Aagcm5401Q (Appellant) (Respondent) C.O. No. 01/Mum/2023 [Arising Out Of Ita No. 2977/Mum/2022 (A.Y: 2018-19)] M/S. Marriott International Design V. Dcit (It) – 3(2)(1) & Construction Services Inc., Room No. 1632, 16Th Floor C/O. Marriot Hotels India Pvt. Ltd., Air India Building 303A, 304, Fulcrum Nariman Point B-Wing, Hiranandani Business Park Mumbai – 400 021 Mumbai, Sahar Road Andheri (E) - 400099 Pan: Aagcm5401Q (Appellant) (Respondent) Assessee Represented By : Shri Paras Savla Department Represented By : Shri Kunal Haver

Section 143(2)Section 143(3)Section 144C

received by the assessee is taxable in the hands of the assessee as fees of included services under article 12 of the US Tax Treaty and also as fees for technical services u/s. 9 (1) (vii) of the Income Tax Act. For the reasons set out in short while ... source liability u/s 195 of the Act, it was held that these amounts are not taxable under the provisions of the Indo-US tax treaty, while holding so the co- ordinate bench inter alia observed as follows:- “30. We have also gone through the definition of 'included services in Indo