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“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)

Sunbeam Lightweighting Solutions Pvt Ltd (Formely Sunbeam Auto Pvt Ltd), Gurgaon vs. DCIT Circle-24(2), New Delhi

ITA 116/DEL/2020[2014-15]Status: DisposedITAT Delhi11 Oct 2023AY 2014-15

Bench: Sh. M. Balaganesh & Sh.Anubhav Sharma

Section 143(3)Section 195Section 234Section 234ASection 40Section 9Section 9(1)(vii)Section 9(2)

offshore services though chargeable under section 9(1)(vii) but exempt under the DTAA cannot be charged to tax in the light of section 90(2) of the Act. 11.7 The Ld. AR concluded that since the sales agents rendered services outside India and that they had no ‘business connection

E Service Singapore Pte Ltd., Gurugram vs. DCIT (International Taxation), New Delhi

In the result, the appeals of the assessee in :

ITA 573/DEL/2017[2013-14]Status: DisposedITAT Delhi10 Oct 2023AY 2013-14

Bench: Shri Saktijit Dey & Shri N.K. Billaiya

For Appellant: Shri Satyen Sethi, AdvFor Respondent: Shri Vizay B. Vasanta, CIT- DR
Section 143(3)Section 9(1)(vi)

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

E Service Singapore Pte Ltd., Gurugram vs. DCIT (International Taxation), New Delhi

In the result, the appeals of the assessee in :

ITA 572/DEL/2017[2012-13]Status: DisposedITAT Delhi10 Oct 2023AY 2012-13

Bench: Shri Saktijit Dey & Shri N.K. Billaiya

For Appellant: Shri Satyen Sethi, AdvFor Respondent: Shri Vizay B. Vasanta, CIT- DR
Section 143(3)Section 9(1)(vi)

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

Hp Services (Singapore) Pte Ltd., Gurgaon vs. DCIT (International Taxation), New Delhi

In the result, the appeals of the assessee in :

ITA 2142/DEL/2016[2011-12]Status: DisposedITAT Delhi10 Oct 2023AY 2011-12

Bench: Shri Saktijit Dey & Shri N.K. Billaiya

For Appellant: Shri Satyen Sethi, AdvFor Respondent: Shri Vizay B. Vasanta, CIT- DR
Section 143(3)Section 9(1)(vi)

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

Indium IV (Mauritius) Holdings Limited, Mumbai vs. Deputy Comm. of Income Tax (International Taxation) 2(2)(1), Mumbai

In the result, appeal filed by the assessee is allowed

ITA 2423/MUM/2022[2017-18]Status: DisposedITAT Mumbai06 Oct 2023AY 2017-18

Bench: Shri Amit Shukla, Hon'Ble & Shri S. Rifaur Rahman, Hon'Bleindium Iv (Mauritius) Holdings Limited V. Dcit (International Transaction)-2(2)(1) Office 201, 2Nd Floor, Sterling Tower Room No. 1722, 17Th Floor Air India Building, Nariman Point 14 Poudriere Street, Port Louis Mumbai – 400 021 Mauritius Pan: Aacci4907P (Appellant) (Respondent)

Section 143(2)Section 144C(5)Section 2(24)Section 45Section 92C

word 'Gains' will also include Losses'. Further the Article makes no distinction between short term or long term nature of income. 5.5 Section 90(2) of the Income Tax Act provides that, where the Central Government has entered into an agreement with the Government of any country outside India ... gains from different transaction as same source of income. 2. Erred in concluding that once the Assessee elected to apply the provisions of section 90(2) of the Act with respect to short-term capital gains, it cannot revert to the provisions of the Act only for the purpose

Inmarsat Solutions Bv, Maharashtra vs. ACIT (International Taxation) Circle 2(1)(1)-Delhi, Delhi

In the result, appeal of the assessee is partly allowed as indicated above

ITA 1717/DEL/2022[2018-19]Status: DisposedITAT Delhi04 Oct 2023AY 2018-19

Bench: Shri G. S. Pannua N D Shri Challa Nagendra Prasad

For Appellant: Ms. Aarti Sathe, &
Section 143(3)Section 144CSection 144C(13)Section 9(1)(vi)

extent to which special concessional tax provisions can be made notwithstanding that there might be a loss of revenue. A plain reading of section 90(2) of the Act makes it clear that the provisions of the DTAA would prevail over the Act unless the Act is more beneficial

Kraft Foods Group Brands Llc, Mumbai vs. Assistant Commissioner of Income Tax (International Taxation)-3(1)(2), Mumbai

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

ITA 2495/MUM/2022[2019-20]Status: DisposedITAT Mumbai27 Sept 2023AY 2019-20

Bench: Us Raising Following Grounds In Its Appeal: -

Section 143(2)Section 144C(5)Section 153Section 234BSection 270ASection 9(1)(vii)

parties agreed the mark-up of 0% share applied to cost of performing support services under this agreement and further, they submitted that Section 90(2) of the Act provides the option to non-resident to be governed under the provisions of tax or the provisions of applicable tax treaty ... towards support services (offered to tax) and USD 7,09,076 (INR 5,18,61,854) towards reimbursement of cost allocation arrangements. Section 90(2) of the Act provides an option to a non-resident to be governed under the provisions of the Act or the provisions of the applicable

Telefonica Uk Ltd., Mumbai vs. DCIT (Int Tax), Range-4(1)(2), Mumbai

In the result, on this ground, appeal of the assessee is treated as allowed

ITA 772/MUM/2023[2014-15]Status: DisposedITAT Mumbai22 Sept 2023AY 2014-15

Bench: Us On Merits Is With Regard To Ground No.11-19 Which Releates To Cellular Roaming Charges & Treating The Amount Of Rs.7,45,72,450/- Taxable Under 9(1)(Vi) Of The Act & Also As Per India-Uk Dtaa Under Article 13(3). At The Outset, Ld. Counsel For The Assessee Submitted That This Issue Stands Covered In The Case Of M/S. Telefonica Depreciation Espana Sa Vs. Cit In Ita No.2657/Bang/2019, 180/Bang/2022& 817/Bang/2022 For The A.Yrs. 2010-11 To 2012-13. 3. The Brief Facts Are That Assessee, I.E., Telefonica Uk Ltd Is A Company Incorporated Under The Laws Of United Kingdom Of Great Britain & Northern Ireland (Uk) & Is A Tax Resident Of Uk. The Assessee Is A Non-Resident Telecommunication Service Provider, Primarily Engaged In The Business Of Providing Mobile & Broadband Services Along With Various Other Ancillary Services Such As Text, Media Messaging, Games, Music, Video & Data Connections In The United Kingdom.

Section 144Section 148

made to the DTAA. Therefore, the provisions of Article- 13 of the DTAA are more beneficial to the Assessee and by virtue of section 90(2) of the Act, the income earned by the Assessee on account of roaming charges is not chargeable to tax in India. d. In support

Telefonica Uk Ltd., Mumbai vs. DCIT (Int Tax), Range-4(1)(2), Mumbai

In the result, on this ground, appeal of the assessee is treated as allowed

ITA 771/MUM/2023[2014-15]Status: DisposedITAT Mumbai22 Sept 2023AY 2014-15

Bench: Us On Merits Is With Regard To Ground No.11-19 Which Releates To Cellular Roaming Charges & Treating The Amount Of Rs.7,45,72,450/- Taxable Under 9(1)(Vi) Of The Act & Also As Per India-Uk Dtaa Under Article 13(3). At The Outset, Ld. Counsel For The Assessee Submitted That This Issue Stands Covered In The Case Of M/S. Telefonica Depreciation Espana Sa Vs. Cit In Ita No.2657/Bang/2019, 180/Bang/2022& 817/Bang/2022 For The A.Yrs. 2010-11 To 2012-13. 3. The Brief Facts Are That Assessee, I.E., Telefonica Uk Ltd Is A Company Incorporated Under The Laws Of United Kingdom Of Great Britain & Northern Ireland (Uk) & Is A Tax Resident Of Uk. The Assessee Is A Non-Resident Telecommunication Service Provider, Primarily Engaged In The Business Of Providing Mobile & Broadband Services Along With Various Other Ancillary Services Such As Text, Media Messaging, Games, Music, Video & Data Connections In The United Kingdom.

Section 144Section 148

made to the DTAA. Therefore, the provisions of Article- 13 of the DTAA are more beneficial to the Assessee and by virtue of section 90(2) of the Act, the income earned by the Assessee on account of roaming charges is not chargeable to tax in India. d. In support

Operadora Comercial De Desarrollo S.A. De C.V., Mexico vs. DCIT, International Taxation, Circle-2(2)(2), New Delhi

In the result, the appeal is allowed

ITA 2395/DEL/2022[2017-18]Status: DisposedITAT Delhi21 Sept 2023AY 2017-18

Bench: Shri Saktijit Dey, Vice- & Dr. B.R.R Kumarassessment Year: 2017-18 . Operadora Commercial De Vs. Dcit, Desarrollo S.A. De C.V. International Taxation, Mexico, Circle-2(2)(2), C/O- Bhatia & Bhatia, New Delhi Chartered Accountants, First Floor, 81, Hemkunt Colony, New Delhi Pan :Aabco9252E (Appellant) (Respondent)

Section 143(3)Section 144C(13)Section 50Section 90(2)

considered rival submissions and perused the materials on record. Undisputedly, the assessee is a Mexican resident holding a valid TRC. Therefore, as per section 90(2) of the Act, the provisions of the domestic law would apply to the assessee in case they are more beneficial. However, in the facts

Gaurav Singh, Satna vs. ITO-Ward Satna, Satna

In the result, the appeal is allowed

ITA 90/JAB/2023[2021-22]Status: DisposedITAT Jabalpur20 Sept 2023AY 2021-22

Bench: Shri Om Prakash Kant& Shri Pavan Kumar Gadalegaurav Singh, Ito, C/0,Rajiv Narayan Singh, Aayakar Bhawan, Parijat Niwas, Civil Lines, Satna-485001. Satna-485001. Madhya Pradesh, Madhya Pradesh, Appellant Respondent Pan: Bbdps8879Q

For Appellant: Shri.Sapan Usrethe,Advocate. ARFor Respondent: Shri. Shiv Kumar. Sr.DR
Section 143(1)Section 143(3)Section 90Section 91

Para 13 to 17 of the order which is read as under: 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 6 Gaurav Singh ITA No. 90/JAB/2023. provisions

ACIT(Ltu-1), Mumbai vs. M/S. Tcs Ltd, Mumbai

ITA 5904/MUM/2019[2014-15]Status: DisposedITAT Mumbai15 Sept 2023AY 2014-15

Bench: Shri Vikas Awasthy () & Ms. Padmavathy S. ()

Section 10ASection 115JSection 14ASection 19Section 40Section 90(1)(a)

ignored if it is wider and less beneficial to the assessee than the definition cont wined in the DTAA, in terms of section 90(2) of the Act read with Explanation 4 there-to.. and article 3(2) of the DTAA Further, the expression copyright" has to be understood

Tata Consultancy Serrvices Limited, Mumbai vs. DCIT-1, Mumbai

ITA 5199/MUM/2019[2014-15]Status: DisposedITAT Mumbai15 Sept 2023AY 2014-15

Bench: Shri Vikas Awasthy () & Ms. Padmavathy S. ()

Section 10ASection 115JSection 14ASection 19Section 40Section 90(1)(a)

ignored if it is wider and less beneficial to the assessee than the definition cont wined in the DTAA, in terms of section 90(2) of the Act read with Explanation 4 there-to.. and article 3(2) of the DTAA Further, the expression copyright" has to be understood

Rameshwar Prasad Shrivastava, Delhi vs. ITO, Ward 70(1), Delhi

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

ITA 1839/DEL/2023[2020-21]Status: DisposedITAT Delhi11 Sept 2023AY 2020-21

Bench: Shri Kul Bharatassessment Year: 2020-21 Rameshwar Prasad Shrivastava, Vs Ito, 344, Pocket-1, Sector-12, Ward-70(1), Dwarka, Delhi. Delhi – 110 078. Pan: Audps0424K (Appellant) (Respondent) Assessee By : Shri Devesh Poddar, Advocate Revenue By : Shri Om Parkash, Sr. Dr Date Of Hearing : 11.09.2023 Date Of Pronouncement : 11.09.2023

For Appellant: Shri Devesh Poddar, AdvocateFor Respondent: Shri Om Parkash, Sr. DR
Section 143(1)

mere delay in compliance of a procedural 4 provision. In other words, we would like to submit 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 only

Bombardier Transportation Signal (Thailand) Limited, Thailand vs. ACIT, Circle Int. Taxation 1(1)(2), New Delhi

In the result, three appeals of the assessee are partly allowed as indicated above

ITA 726/DEL/2023[2016-17]Status: DisposedITAT Delhi31 Aug 2023AY 2016-17

Bench: Shri Narendra Kumar Billaiya & Shri Challa Nagendra Prasad

For Appellant: Shri Anubhav Rastogi, &
Section 143(2)Section 143(3)Section 144CSection 144C(1)Section 263Section 90(2)

terms of Article 4 of Indo Thailand Double Taxation Avoidance Agreement (DTAA). As the assessee is a tax resident of Thailand as per section 90(2) of the Act it is eligible to be governed as per provisions of the I.T. Act or the DTAA whichever is more beneficial

Bombardier Transportation Signal (Thailand ) Limited, Thailand vs. DCIT, Circle-1(1)(2) Int. Taxation, Delhi

In the result, three appeals of the assessee are partly allowed as indicated above

ITA 2193/DEL/2022[2019-20]Status: DisposedITAT Delhi31 Aug 2023AY 2019-20

Bench: Shri Narendra Kumar Billaiya & Shri Challa Nagendra Prasad

For Appellant: Shri Anubhav Rastogi, &
Section 143(2)Section 143(3)Section 144CSection 144C(1)Section 263Section 90(2)

terms of Article 4 of Indo Thailand Double Taxation Avoidance Agreement (DTAA). As the assessee is a tax resident of Thailand as per section 90(2) of the Act it is eligible to be governed as per provisions of the I.T. Act or the DTAA whichever is more beneficial

Bombardier Transportation Signal (Thailand ) Limited, Thailand vs. DCIT, Circle 1(1)(2) Int. Taxation, Delhi

In the result, three appeals of the assessee are partly allowed as indicated above

ITA 2192/DEL/2022[2018-19]Status: DisposedITAT Delhi31 Aug 2023AY 2018-19

Bench: Shri Narendra Kumar Billaiya & Shri Challa Nagendra Prasad

For Appellant: Shri Anubhav Rastogi, &
Section 143(2)Section 143(3)Section 144CSection 144C(1)Section 263Section 90(2)

terms of Article 4 of Indo Thailand Double Taxation Avoidance Agreement (DTAA). As the assessee is a tax resident of Thailand as per section 90(2) of the Act it is eligible to be governed as per provisions of the I.T. Act or the DTAA whichever is more beneficial

Deloitte India Advisory Services Private Limited, Mumbai vs. National Faceless Appeal Centre (NFAC), Delhi/CIT(A), Mumbai

In the result, appeal of the assessee is allowed

ITA 1202/MUM/2023[2020-2021]Status: DisposedITAT Mumbai29 Aug 2023AY 2020-2021

Bench: The Revised Return, Therefore The Appellant Ought To Have Been Allowed Entire Foreign Tax Relief Of Rs. 2,82,44,841. 1.3 The Learned Nfac Ought To Have Appreciated That Rule 128 Of The Income Tax Rules, 1962 Does Not Provide For Disallowance Of Foreign Tax Relief In Case Of Filing Of Revised Form 67 Along With The Revised Return. 1.4 The Learned Nfac Ought To Have Granted The Balance Foreign Tax Relief Amounting To Rs. 1,34,86,569 Since The Appellant Has Filed The Revised Form 67 Before The Due Date Of Filing Of Revised Return Of Income.

Section 12ASection 139(1)Section 143(1)Section 90Section 90(2)

grant of credit against taxes payable in India for taxes paid in foreign countries in terms of DTAA entered into in pursuant to Section 90(2). The Section per se or the DTAA does not provide for any disallowance of FTC if it is not claimed by a particular date

The Golden State Capital Pte Ltd, Singapore vs. DCIT Circle 3(1)(1), International Taxation, Delhi

ITA 1686/DEL/2022[2018-19]Status: DisposedITAT Delhi23 Aug 2023AY 2018-19

Bench: Shri Kul Bharat & Shri M. Balaganeshthe Golden State Capital Pte Ltd, Vs. Dcit, 31, Tanglin Road, #03,-04, St. Circle-3(1)(1), Regis Residences, Singapore, International Taxation, Singapore, Singapore, 247912 Delhi (Appellant) (Respondent) Pan: Aagct8026Q Assessee By : Shri Deepak Chopra, Adv Shri Anmol, Adv Shri Priya, Adv Revenue By: Shri Vizay B. Vasanta, Cit Dr Date Of Hearing 31/05/2023 Date Of Pronouncement 23/08/2023

For Appellant: Shri Deepak Chopra, AdvFor Respondent: Shri Vizay B. Vasanta, CIT DR
Section 143(3)Section 144C(13)Section 282A(1)

lower than that contained in the DTAA. 25. That the AO erred in failing to appreciate that in terms of section 90(2) of the ITA, the ITA to the extent it is more beneficial, even issues in relation to fiscal avoidance, will be applicable over the DTAA. 26. That

Tech Data(Singapore) Pte Limited, Mumbai vs. The Deputy Comm. of Income Tax (It) Circle -4(1)(2), Mumbai

In the result, ground No.3 of appeal is allowed

ITA 2367/MUM/2022[2019-20]Status: DisposedITAT Mumbai21 Aug 2023AY 2019-20

Bench: Shri Vikas Awasthy & Shri Gagan Goyalआअसं.2367/मुं/ 2022 (िन.व.2019-20) Tech Data (Singapore) Pte Limited, 10, #05-17/20 Techpoint, Ang Mo Kio Street 65, Singapore -569059 Pan: Aagct-0951-J ...... अपीलाथ" /Appellant बनाम Vs. The Deputy Commissioner Of Income Tax International Taxation, Circle -4(1)(2) Mumbai . ..... "ितवादी/Respondent अपीलाथ" "ारा/ Appellant By : Shri Nitesh Joshi "ितवादी "ारा/Respondent By : Shri Avneesh Tiwari सुनवाई क" ितिथ/ Date Of Hearing : 22/05/2023 घोषणा क" ितिथ/ Date Of Pronouncement : 21/08/2023 आदेश आदेश/ Order आदेश आदेश Per Vikas Awasthy, Jm: This Appeal By The Assessee Is Directed Against The Assessment Order Dated 19/07/2022 Passed U/S. 143(3) R.W.S. 144C(13) Of The Income Tax Act, 1961 [ In Short ‘The Act], For The Assessment Year 2019-20. 2. The Assessee In Appeal Has Raised Five Grounds. The Gist Of Grounds Raised By The Assessee In Appeal Is As Under: (I) Challenge To Validity Of Assessment – Notice U/S. 143(2) Of The Act Issued Without Authority.

For Appellant: Shri Nitesh JoshiFor Respondent: Shri Avneesh Tiwari
Section 143(2)Section 143(3)Section 234ASection 274

assessee may fall within the sweep of FTS as defined under the Act, but the assessee would be protected by provisions of section 90(2) of the Act. Section 90(2) of the Act lays down that, where the Central Government has entered into an agreement with any other Sovereign