“Section 90(2)”

Section References (mined)Section 90Section 90(2)547 judgments

The decision most relied on for Section 90(2) is Union of India v. Azadi Bachao Andolan (263 ITR 706), cited in 691 judgments on BharatTax.

Leading authorities on Section 90(2)

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.

CIT v. De Beers India Minerals (P.) Ltd.

346 ITR 467 · 2012 · High Court

371

citing judgments

For fees for technical or consultancy services to 'make available' technical knowledge or know-how under a DTAA, the service must transmit such knowledge, allowing the recipient to derive an enduring benefit and utilize it independently in the future.

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.

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).

Skycell Communications Ltd. v. DCIT

251 ITR 53 · 2001 · High Court

253

citing judgments

Technical services involve human intervention and expertise, not just routine or machine-based operations. Routine customer support and standard facility provision through technology do not constitute technical services under the Act.

Shivsagar Veg Restaurant v. ACIT

317 ITR 433 · 2009 · High Court

202

citing judgments

Orders that are inordinately delayed are liable to be recalled and heard afresh, and the Appellate Tribunal President should frame guidelines for timely disposal of appeals.

153 (Gujarat) 8 Shakti Karnawat v. ITO

296 ITR 90 · 2008 · High Court

171

citing judgments

A live link of third-party information can form the basis for reopening an assessment under Section 148, provided it contains material facts necessary for assessment. The Assessing Officer must demonstrate a "reason to believe" that income has escaped assessment, which can be satisfied by such information even if it pertains to other assessees or relates to accommodation entries.

Judgments citing Section 90(2)

Foseco India Limited, Pune vs. ACIT, Circle 1(1), Pune

In the result, the appeal of the assessee for AY 2014-15 is dismissed

ITA 1115/PUN/2024[2015-16]Status: DisposedITAT Pune11 Nov 2024AY 2015-16

Bench: Shri R.K. Panda & Ms. Astha Chandra

For Appellant: Shri Atul PoddarFor Respondent: Shri Ramnath P. Murkunde

Section 115Section 115JSection 237

restricted @10% as per of Article 11 of the India-UK Double Taxation Avoidance Agreement (the DTAA' or the tax treaty) read with section 90(2) of the Act. It is seen that section 90 is under Chapter IX of the Income Tax Act which is on double taxation relief ... This primarily deals with non-resident assesses and section 90(2) states the principle for granting relief of tax for non-resident assesses for avoidance of double taxation. It is not furnished how the dividends have been taxed in both India and UK for the non- resident parent entity

Foseco India Limited, Pune vs. ACIT, Circle 1 (1), Pune

In the result, the appeal of the assessee for AY 2014-15 is dismissed

ITA 1114/PUN/2024[2014-15]Status: DisposedITAT Pune11 Nov 2024AY 2014-15

Bench: Shri R.K. Panda & Ms. Astha Chandra

For Appellant: Shri Atul PoddarFor Respondent: Shri Ramnath P. Murkunde

Section 115Section 115JSection 237

Mma Offshore Asia Vessel Operations Pte Ltd., Singapore vs. CIT (International Taxation)-3, Mumbai

ITA 2567/MUM/2024[2020-21]Status: DisposedITAT Mumbai08 Nov 2024AY 2020-21

Bench: Shri Narendra Kumar Billaiya, Hon'Ble & Shri Sunil Kumar Singh, Hon'Ble

For Appellant: Shri Nitesh Joshi/Punit Lohiya, A/RsFor Respondent: Shri Vivek Perampurna, D/R

Section 142(1)Section 195Section 263

April 2018 to 31 March 2019 (copy of Tax Residency Certificate covering year under consideration attached as Annexure 5), therefore, as per section 90(2) of the Act, it would be governed by the provisions of the India-Singapore tax treaty or the Act whichever is more beneficial. We have

Mma Offshore Asia Vessel Operations Pte Ltd., Singapore vs. CIT (International Taxation)-3, Mumbai

ITA 2566/MUM/2024[2019-20]Status: DisposedITAT Mumbai08 Nov 2024AY 2019-20

Bench: Shri Narendra Kumar Billaiya, Hon'Ble & Shri Sunil Kumar Singh, Hon'Ble

For Appellant: Shri Nitesh Joshi/Punit Lohiya, A/RsFor Respondent: Shri Vivek Perampurna, D/R

Section 142(1)Section 195Section 263

Dassault SystÈMes Soildworks Corporaion, Chennai vs. ACIT (International Taxation)_2(1)(2), Mumbai

In the result, appeal of the assessee is allowed

ITA 4534/MUM/2023[2021-22]Status: DisposedITAT Mumbai08 Nov 2024AY 2021-22

Bench: Shri Narendra Kumar Billaiya, Hon’Ble & Shri Sunil Kumar Singh, Hon’Ble

For Appellant: Shri Akshay Kumar, A/RFor Respondent: Shri Vivek Perampurna, D/R

Section 143(3)Section 234BSection 9(1)(vi)

signatory nations." 165. The conclusions in the aforestated paragraph have no direct relevance to the facts at hand as the effect of section 90(2) of the Income-tax Act, read with explanation 4 thereof, is to treat the DTAA provisions as the law that must be followed by Indian

Suzlon Energy Ltd., Ahmedabad vs. The ACIT(OSD) Circle-8, Ahmedabad

In the result the appeal filed by the Assessee in ITA No

ITA 1621/AHD/2019[2008-09]Status: DisposedITAT Ahmedabad29 Oct 2024AY 2008-09

Bench: Shri T.R. SENTHIL KUMAR (Judicial Member), Shri Makarand Vasant Mahadeokar (Accountant Member)

Section 143(3)Section 90

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “D” BENCH Before: Shri T.R. SENTHIL KUMAR, Judicial Member And Shri Makarand Vasant

The DCIT, Circle-4(1)(1), Ahmedabad vs. Suzlon Energy Ltd., Ahmedabad

In the result the appeal filed by the Assessee in ITA No

ITA 1517/AHD/2019[2008-09]Status: DisposedITAT Ahmedabad29 Oct 2024AY 2008-09

Bench: Shri T.R. SENTHIL KUMAR (Judicial Member), Shri Makarand Vasant Mahadeokar (Accountant Member)

Section 143(3)Section 90

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “D” BENCH Before: Shri T.R. SENTHIL KUMAR, Judicial Member And Shri Makarand Vasant

Deputy Commissioner of Income Tax(It)-II, Hyderabad vs. Sew Infrastructure Limited, Secunderabad

In the result, appeal filed by the Revenue is dismissed

ITA 725/HYD/2024[2015-16]Status: DisposedITAT Hyderabad28 Oct 2024AY 2015-16

Bench: Shri Laliet Kumar & Shri Manjunatha, G.आ.अपी.सं /Ita No.725/Hyd/2024 (िनधा"रण वष"/Assessment Year: 2015-16) Dy. C.I.T (It)-Ii Vs. Sew Infrastructure Ltd Hyderabad Secunderabad Pan:Aadcs4061P (Appellant) (Respondent) राज" व "ारा/Revenue By: Shri B Bala Krishna, Cit(Dr) िनधा""रती "ारा/Assessee By: Shri S. Rama Rao, Advocate सुनवाई की तारीख/Date Of Hearing: 22/10/2024 घोषणा की तारीख/Pronouncement: 28/10/2024 आदेश/Order

For Appellant: Shri S. Rama Rao, AdvocateFor Respondent: Shri B Bala Krishna, CIT(DR)

Section 154Section 2Section 206ASection 90Section 90(2)Section 9O(2)

overriding of other provisions of I.T. Act, 1961. Further, section 206AA is also non-obstante clause which was inserted later in time within section 90(2) of the Act, and therefore, ought to take precedent over section 90(2) of the Act. Therefore, he submitted that once the provisions ... obstante clause which was inserted later in time than section 9O(2) of the Act and therefore ought to take precedence over section 90(2) of the Act. iii. The requirement for deduction of TDS at a higher rate of 20% u/s. 206AA of the Act for non-production

Morgan Stanley Mauritius Company Limited, Mumbai vs. Deputy Commissioner of Income Tax (International Taxation)-Circle 3(2)(2), Mumbai

In the result, the appeal of the assessee is allowed

ITA 3316/MUM/2023[2020-21]Status: DisposedITAT Mumbai28 Oct 2024AY 2020-21

Bench: Shri Om Prakash Kant () & Ms. Kavitha Rajagopal () Assessment Year: 2020-21 Morgan Stanley Mauritius Company Dy. Cit (International Taxation) – Ltd., Circle 3(2)(2), Vs. C/O S R B C & Associates Llp, 14Th 16Th Floor, Room No. 1615, Air India Floor, The Ruby, 29, Senapati Bapat Building Nariman Point, Marg, Dadar (West), Mumbai-400021. Mumbai-400028. Pan No. Aadcm 5927 G Appellant Respondent

For Appellant: Mr. Sunil Moti LalaFor Respondent: Ms. Somogyan Pal, CIT-DR

Section 143(2)Section 143(3)Section 144C(13)Section 253

course of passing the final assessment order, the learned AO has arned AO has ignored: o the provisions of section 90(2) of the Act which provides that the provisions of section 90(2) of the Act which provides that the provisions of section 90(2) of the Act which ... Stanley Mauritius Company Ltd. 6 Before the Assessing Officer t Before the Assessing Officer the assessee submitted that section he assessee submitted that section 90(2) of the Act allows the assessee to apply the provisions of the 90(2) of the Act allows the assessee to apply the provisions

M/S. Tirubala International Private Limited, Kanpur vs. Deputy Commissioner of Income Tax, Range-VI, Kanpur

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

ITA 147/LKW/2018[2014-15]Status: DisposedITAT Lucknow25 Oct 2024AY 2014-15

Bench: Sh. Sudhanshu Srivastava & Sh. Nikhil Choudharya.Y. 2014-15 Tirubala International Pvt. Ltd., Deputy Commissioner Of C-7, Panki Industrial Area, Vs. Income Tax, Range-Vi, Kanpur Kanpur, U.P. Pan:Aaect2086J (Appellant) (Respondent) Assessee By: Sh. Vikas Garg, Fca Revenue By: Sh. Sanjeev Krishna Sharma, Addl Cit Dr Date Of Hearing: 02.09.2024 Date Of Pronouncement: 25.10.2024 O R D E R Per Sh. Nikhil Choudhary: This Is An Appeal Filed Against The Order Of The Ld. Cit(A), Dismissing The Appeal Of The Assessee That Was Filed Against The Order Of The Dcit-6, Kanpur Passed On 19.12.2016. The Grounds Of Appeal Are As Under:- “1. That The Ao, Has Erred In Law & On Facts In Making An Addition Of Rs. 29,164/- On Account Of Late Payment Towards Employees Contribution To Esi. 2. That The Authorities Below Have Failed To Appreciate That The Payment Of Rs.29,164 Towards Employee'S Contribution To Provident Fund Was Made Before The "Due Date" Of Filing Return Of Income U/S 139(1) Of The Income Tax Act 1961 Therefore There Could Not Be Any Addition Of The Aforesaid Amount To The Returned Income. 3. That The Authorities Below Have Failed To Appreciate That The Due Date As Mentioned In 36(1) (Va) Is To Be Read In Conjunction With Section 43B(B)

For Appellant: Sh. Vikas Garg, FCAFor Respondent: Sh. Sanjeev Krishna Sharma, Addl CIT DR

Section 139(1)Section 195Section 36(1)(va)Section 40Section 43B

would not fall within the scope of "Fees for technical services" and no tax would liable to be deducted u/s 195, read with section 90(2) of the Income Tax Act, on payments remitted to M/S Aitex Research Institute for testing the samples and issuing test reports. It was further

Chambal Fertilisers and Chemicals Limited, Kota Gadepan vs. Principal Commissioner of Income Tax, Savina-Udaipur

ITA 694/JPR/2024[2018-19]Status: DisposedITAT Jaipur25 Oct 2024AY 2018-19

For Appellant: Shri Sanjay Jhanwar, Adv. & Shri Mukesh SoniFor Respondent: Shri Arvind Kumar, CIT

Section 115BSection 142(1)Section 143(2)Section 143(3)Section 194ASection 195Section 263Section 90

subject to 15% tax u/s 115BBD. The said contention is against the law and plain reading of provision of Section 115BBD read with Section 90(2) of the Act. The Ld. PCIT has wrongly taken adverse view based on the Article 9 of the convention between India and Morocco dated

Orient Overseas Container Line Limited, Mumbai vs. Deputy Commissioner of Income Tax (International Taxation)-Circle 3(2)(2), Mumbai

In the result, ground No.3 is allowed

ITA 3278/MUM/2023[2020-21]Status: DisposedITAT Mumbai24 Oct 2024AY 2020-21

Bench: Us The Effective Ground Which Has Been Raised Is Ground No.3, Wherein Assessee Has Challenged That Gst Amount Cannot Be Considered For The Purpose Of Computing Presumptive Income U/S.44B Of The Act. For The Sake Of Ready Reference, The

Section 143(3)Section 44B

IN THE INCOME TAX APPELLATE TRIBUNAL, ‘I’ BENCH MUMBAI BEFORE: SHRI AMIT SHUKLA, JUDICIAL MEMBER & SHRI AMARJIT SINGH, ACCOUNTANT MEMBER

Ram Avadhanulu Jonnavithula, Bangalore vs. Deputy Commissioner of Income Tax, Circle-3(3)(1), Bangalore

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

ITA 1645/BANG/2024[2017-18]Status: DisposedITAT Bangalore23 Oct 2024AY 2017-18

Bench: Shri George George K. & Shri Laxmi Prasad Sahuassessment Year : 2017-18

For Appellant: Shri Navneeth N. Kini, CAFor Respondent: Ms. Neha Sahay, Jt.CIT(DR)(ITAT), Bengaluru

Section 139Section 139(1)Section 143(1)Section 154Section 90

Delhi) ♦ CIT v. ACE Multitaxes Systems (P.) Ltd [2009] 317 ITR 207 (Karnataka). 13. It was submitted that as per the provisions of section 90(2) of the Act, where the Central Government of India has entered into a DTAA, the provisions of the Act would apply to the extent

Vamsi Krishna Ayyalasomayajula, Telangana vs. Income Tax Officer, Ward-5(3)(4), Bangalore

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

ITA 1469/BANG/2024[2017-18]Status: DisposedITAT Bangalore23 Oct 2024AY 2017-18

Bench: Shri George George K. & Shri Laxmi Prasad Sahuassessment Year : 2017-18

For Appellant: Smt. Vaidehi G., CAFor Respondent: Ms. Neha Sahay, Jt.CIT(DR)(ITAT), Bengaluru

Section 139(4)Section 143(1)Section 6(1)Section 90(2)

assessee claimed foreign tax credit (FTC) in respect of income tax paid in USA as per provisions of Page 3 of 8 section 90(2) of the Act r.w. Article 25(2)(a) of India-US DTAA. The return was processed u/s. 143(1) on 30.3.2019 wherein FTC claimed ... Delhi) ♦ CIT v. ACE Multitaxes Systems (P.) Ltd [2009] 317 ITR 207 (Karnataka). 13. It was submitted that as per the provisions of section 90(2) of the Act, where the Central Government of India has entered into a DTAA, the provisions of the Act would apply to the extent

Saket Kanoi, Gurgaon vs. DCIT Intl. Taxation, Gurgaon

In the result, the appeal of the assessee is allowed

ITA 3243/DEL/2023[2021-22]Status: DisposedITAT Delhi23 Oct 2024AY 2021-22

Bench: Dr. B. R. R. Kumar, Sh. Yogesh Kumar Us

For Appellant: Sh. Sunny Jain, CAFor Respondent: Sh. Vizay B. Vasanta, CIT-DR

Section 143(3)

between India and the State of residency of the assessee. In the instant case, the provisions of India- UAE Treaty would be applicable. Section 90(2) of the I.T.Act states that the provisions of the Treaty shall apply to the extent they are more beneficial to the 33 Saket Kanoi

Samsung R & D Institute India Bangalore Private Limited, Bangalore vs. Joint Commissioner of Income Tax, Special Range- 6, Bangalore

In the result, the appeal of the assessee is allowed and the appeal of the Revenue is dismissed

ITA 625/BANG/2020[2015-16]Status: DisposedITAT Bangalore22 Oct 2024AY 2015-16

Bench: Shri George George K. & Ms. Padmavathy S.It(Tp)A No. 625/Bang/2020 (Assessment Year: 2015-16)

For Appellant: Shri T. Suryanarayana, Sr. AdvFor Respondent: Shri R.N. Siddappaji, CIT-DR

Section 28Section 40Section 92C

have to be ignored if it is wider and less beneficial to the assessee than the definition contained in the DTAA, as per section 90(2) of the Income Tax Act read with explanation 4 thereof, and Article 3(2) of the DTAA. Further, the expression "copyright ... Contracting States must be applied unless there is any repugnancy to the terms of the DTAA.” 20. We shall also refer to section 90(2) of the Act that reads as under: “90(2) where the Central Government has entered into an Agreement with the Government of any other country

Ohm Juniper Longterm Fund Limited, Mauritius vs. DCIT Intl. Taxation -2(2)(2), New Delhi

ITA 2722/DEL/2023[2018-19]Status: DisposedITAT Delhi22 Oct 2024AY 2018-19

Bench: Shri Saktijit Dey, Hon’Ble & Shri M. Balaganeshm/S. Ohm Juniper Longterm Vs. Dcit, Fund Ltd, International Taxation- 5Th Floor, Ebene Esplanade, 2(22)(2), 24 Cybercity, Ebene, New Delhi Mauritius (Appellant) (Respondent) Pan:Aacco2383D

For Appellant: Shri Kanchan Kaushal, AdvFor Respondent: Shri Vizay B. Vasanta, CIT DR

Section 234BSection 234CSection 90(2)

India-Mauritius Double Taxation Avoidance Agreement (DTAA) to the extent they are more beneficial vis a vis the domestic tax provisions as per section 90(2) of the Act. 4. The assessee submitted that it was set up as a collective investment vehicle to pool in funds from various investors

Sandeep Jain, Jaipur vs. DCIT, Circle-1, Jaipur

In the result, the appeal of the assessee is allowed

ITA 178/JPR/2023[2017-2018]Status: DisposedITAT Jaipur04 Oct 2024AY 2017-2018

Bench: DR. S. SEETHALAKSHMI (Judicial Member), SHRI RATHOD KAMLESH JAYANTBHAI (Accountant Member)

For Appellant: Shri Amit Mudra (C.A.)For Respondent: Shri Anup Singh (Addl. CIT)

Section 139(5)Section 143(2)Section 90

person cannot be worse off visa-vis the provisions of theIncome-tax Act, even when a tax treaty applies in his case. Section 90(2) statesthat even in relation to the assessee to whom a tax treaty applies "the provisionsof this Act shall apply to the extent they are more ... agreement and the Act, the provisions of the agreement would prevail over the provisions of the Act, as is also clear from section 90(2). Section 90(2) makes it clear that "where the Central Government has entered into an agreement with the Government of any country outside India

Basavalinga Sadasivaiah Ajaikumar, Mysore vs. Deputy Commissioner of Income Tax, Circle-1(1)(1), Bengaluru

In the result, the appeal is allowed

ITA 1470/BANG/2024[2019-20]Status: HeardITAT Bangalore19 Sept 2024AY 2019-20

Bench: Shri Waseem Ahmed & Shri Soundararajan Kassessment Years : 2019-20

For Appellant: Shri Sandeep Huilgol, AdvocateFor Respondent: Shri Subramanian S, JCIT (DR)

Section 139(1)Section 143(1)

Delhi)CIT v. ACE Multitaxes Systems (P.) Ltd. [2009] 317 ITR 207 (Karnataka). 13. It was submitted that as per the provisions of section 90(2) of the Act, where the Central Government of India has entered into a DTAA, the provisions of the Act would apply to the extent

Neetu Agarwal, Kolkata vs. Income Tax Officer - Ward 7(1), Kolkata

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

ITA 67/KOL/2024[2020-21]Status: DisposedITAT Kolkata13 Sept 2024AY 2020-21

Bench: Shri Sanjay Garg & Shri Rakesh Mishraassessment Year: 2020-21

For Appellant: Puja Agarwal, C.AFor Respondent: Abhishek Kumar, JCIT, Sr. DR

Section 143(1)Section 154Section 234BSection 250Section 90

beneficial to the assessee: 165.The conclusions in the aforestated paragraph have no direct relevance to the facts at hand as the effect of section 90(2) of the Income Tax Act, read with explanation 4 thereof, is to treat the DTAA provisions as the law that must be followed