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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)

Ishares Core Msci Emerging Markets Etf (As A Successor to Ishares Core Emerging Markets Mauritius Company, Mumbai vs. DCIT (Tp) 2(2)(2), Mumbai

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

ITA 6051/MUM/2025[2023-24]Status: DisposedITAT Mumbai02 Jan 2026AY 2023-24

Bench: Shri Vikram Singh Yadavshri Sandeep Singh Karhailishares Core Msci Emerging Markets Etf (As A Successor To Ishares Core Emerging Markets Mauritius Company) C/O Ernst & Young Llp, 17Th Floor, The Ruby, 29, Senapati Bapat Marg, ............... Appellant Dadar (West), Mumbai - 400028 Pan : Aafci3337N V/S Deputy Commissioner Of Income Tax (International Tax) - 2(2)(2) Room No.606, 6Th Floor, Kautilya Bhavan, ……………… Respondent C-41 To C-43, G-Block, Bandra Kurla Complex, Bandra (East), Mumbai – 400051 Ishares Msci All Country Asia Ex Japan Etf C/O Ernst & Young Llp, 17Th Floor, The Ruby, 29, Senapati Bapat Marg, Dadar (West), Mumbai - 400028 Pan : Aabti7439L ............... Appellant

For Appellant: Shri Pranav GandhiFor Respondent: Shri Satya Pal Kumar, CIT-DR
Section 143(3)Section 144C(13)Section 144C(5)Section 70Section 70(2)

treaty should be applied only to the 'net capital gain which forms part of total income; 10. failed to appreciate that as per section 90(2) of the Act, each provision of the Act should be considered separately and therefore for determining 'total income', the income under head "Capital gains ... section 2(24) of the Act, read with sections 4 and 5 of the Act. The AO held that the operation of section 90(2) of the Act does not change the method of set off for carry forward, and therefore, if there is any income during the year, whether

Ishares Msci All Country Asia Ex Japan Etf, Mumbai vs. DCIT (Int. Tax)-2(2)(2), Mumbai

ITA 6050/MUM/2025[2022-23]Status: DisposedITAT Mumbai02 Jan 2026AY 2022-23

Bench: Shri Vikram Singh Yadavshri Sandeep Singh Karhail

For Appellant: Shri Pranav GandhiFor Respondent: Shri Satya Pal Kumar, CIT-DR
Section 143(3)Section 144C(13)Section 144C(5)Section 70Section 70(2)

treaty should be applied only to the 'net capital gain which forms part of total income; 10. failed to appreciate that as per section 90(2) of the Act, each provision of the Act should be considered separately and therefore for determining 'total income', the income under head "Capital gains

Mitsui Kinzoku Components Pvt Ltd, Rewari vs. Income Tax Officer, ITO Ward Two

In the result, appeal of the assessee is allowed

ITA 3912/DEL/2024[2013-14]Status: DisposedITAT Delhi31 Dec 2025AY 2013-14

Bench: Shri Vikas Awasthy & Shri Brajesh Kumar Singh

Section 115Section 143(3)Section 237Section 239

dividend income of the shareholder, is subject to both, India-Japan tax treaty and Income tax Act, 1961 provisions. Accordingly, pursuant to Section 90(2), which enables a taxpayer to offer tax basis the tax treaty, if the same is more beneficial, MKCI is eligible to claim benefit of Article ... taxing the dividend income paid to the nonresident shareholder in excess of rate specified under DTAA without appreciating the provisions of section 90(2) of the Act in proper perspective. 2.3. The Ld. CIT(A) erred in fact and in law in disallowing the claim made by the Appellant

Mitsui Kinzoku Components Pvt Ltd, Rewari vs. Income Tax Officer, ITO Ward Two

In the result, appeal of the assessee is allowed

ITA 3911/DEL/2024[2012-13]Status: DisposedITAT Delhi31 Dec 2025AY 2012-13

Bench: Shri Vikas Awasthy & Shri Brajesh Kumar Singh

Section 115Section 143(3)Section 237Section 239

dividend income of the shareholder, is subject to both, India-Japan tax treaty and Income tax Act, 1961 provisions. Accordingly, pursuant to Section 90(2), which enables a taxpayer to offer tax basis the tax treaty, if the same is more beneficial, MKCI is eligible to claim benefit of Article ... taxing the dividend income paid to the nonresident shareholder in excess of rate specified under DTAA without appreciating the provisions of section 90(2) of the Act in proper perspective. 2.3. The Ld. CIT(A) erred in fact and in law in disallowing the claim made by the Appellant

Mitsui Kinzoku Components India Pvt Ltd, Rewari vs. Income Tax Officer, ITO Ward Two

In the result, appeal of the assessee is allowed

ITA 3910/DEL/2024[2011-12]Status: DisposedITAT Delhi31 Dec 2025AY 2011-12

Bench: Shri Vikas Awasthy & Shri Brajesh Kumar Singh

Section 115Section 143(3)Section 237Section 239

dividend income of the shareholder, is subject to both, India-Japan tax treaty and Income tax Act, 1961 provisions. Accordingly, pursuant to Section 90(2), which enables a taxpayer to offer tax basis the tax treaty, if the same is more beneficial, MKCI is eligible to claim benefit of Article ... taxing the dividend income paid to the nonresident shareholder in excess of rate specified under DTAA without appreciating the provisions of section 90(2) of the Act in proper perspective. 2.3. The Ld. CIT(A) erred in fact and in law in disallowing the claim made by the Appellant

G S Strategic Investments Limited, Mumbai vs. ACIT International Tax Circle 2(3)(2), Mumbai

In the result, the appeal of the assessee is allowed

ITA 5644/MUM/2025[2023-24]Status: DisposedITAT Mumbai30 Dec 2025AY 2023-24

Bench: SHRI AMIT SHUKLA (Judicial Member), SHRI GIRISH AGRAWAL (Accountant Member)

Section 112Section 143(3)Section 144C(13)Section 74

adjust brought forward losses against such non-chargeable gains. It is further urged that DTAA provisions prevail over domestic law by virtue of section 90(2), and that the treaty cannot be thrust upon an assessee; equally, the assessee is entitled to choose, year-wise, between ... chargeability 9 GS Strategic Investments Limited and allocation of taxing rights under the Treaty, (ii) the primacy accorded to the Treaty under section 90(2), and (iii) the scope of the statutory machinery for carry forward and set-off of losses under section 74. 12. Section 90(2) embodies

Acronis Asia Pte Ltd, Mumbai vs. Deputy Commissioner of Income Tax (International Taxation )Range-1(1)(1), Mumbai

In the result, the appeal filed by the assessee is

ITA 2035/MUM/2025[2022-23]Status: DisposedITAT Mumbai30 Dec 2025AY 2022-23
Section 10(50)Section 143(3)Section 144C(13)

assessee cannot be taxed in India under Article 7 of the DTAA. 44. At this juncture, it would be apposite to reiterate that section 90(2) of the Act mandates that where the provisions of the Act and the provisions of the DTAA are in conflict, the provisions which

Vaibhav Das Mundhra, Kolkata vs. Assistant Director of Income Tax, CPC, Bangalore

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

ITA 35/KOL/2025[2021-2022]Status: DisposedITAT Kolkata29 Dec 2025AY 2021-2022

Bench: Shri Sonjoy Sarma & Shri Rakesh Mishra

Section 234BSection 234CSection 250Section 295(1)Section 90

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 by Indian courts

Soumik Chatterjee, Kolkata vs. ITO, Ward 33(2), Kolkata

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

ITA 1508/KOL/2025[2024-2025]Status: DisposedITAT Kolkata23 Dec 2025AY 2024-2025

Bench: the Ld. CIT(A), the appellant filed statement of computation of income claiming tax relief of Rs.2,20,926/- (foreign tax credit) instead of Rs.5,22,964/- as claimed in his revised return of income. However, the Ld. CIT(A) dismissed the appeal of the assessee on the ground that the Form 67 was not filed in time. In our opinion the foreign tax credit cannot be denied mere for the reason of late filing of form 67. We note that the case is squarely covered by the decision of coordinate Benches

Section 139Section 139(1)Section 143(1)Section 154Section 250Section 90Section 90(2)

tune of Rs. 17,72,470/- was deducted in United Kingdom under DTAA between India and UK and provision of Section 90(2) of the Act. We also note that Rule 128 sub-Rule 9 provides that Form-67 should be filed on or before the due date of filing

ACIT, Circle-2(1)(1), Mumbai vs. M/S Bank of India, Mumbai

In the result, appeal of the revenue is dismissed

ITA 1549/MUM/2023[2013-2014]Status: DisposedITAT Mumbai23 Dec 2025AY 2013-2014

Bench: MS. SUCHITRA RAGHUNATH KAMBLE (Judicial Member), SHRI GIRISH AGRAWAL (Accountant Member)

For Appellant: Shri P. J. Pardiwala, Sr. Advocate and Shri C. Naresh, CAFor Respondent: Shri Satya Pal Kumar, CIT DR
Section 10Section 115JSection 143(3)Section 14ASection 90

authorized. Any retention of tax levied or collected, which is not otherwise payable, will be illegal and unconstitutional. 11.2. The provisions of section 90(2) of the Act provides that if India has entered into a DTAA with another country, then, the provisions of the DTAA or the domestic

Bank of India, Mumbai vs. The ACIT-2(1)(1), Mumbai

ITA 1397/MUM/2023[2013-14]Status: DisposedITAT Mumbai23 Dec 2025AY 2013-14

Bench: Ms. Suchitra Raghunath Kamble & Shri Girish Agrawal

Section 10Section 115JSection 143(3)Section 14ASection 90

authorized. Any retention of tax levied or collected, which is not otherwise payable, will be illegal and unconstitutional. 11.2. The provisions of section 90(2) of the Act provides that if India has entered into a DTAA with another country, then, the provisions of the DTAA or the domestic

Anuvu Uk Operations Limited, United Kingdom vs. Deputy Commissioner of Income Tax, Circle International Tax 1(1)(1), New Delhi

In the result, the appeal of the assessee is allowed

ITA 2021/DEL/2025[2022-23]Status: DisposedITAT Delhi15 Dec 2025AY 2022-23

Bench: Shri M. Balaganesh & Shri Vimal Kumaranuvu Uk Operations Ltd, Vs. Dcit, C/O. Anuvu Uk Operations Ltd, International Tax- 85, Tottentham Court Road, 1(1)(1) London, Greater Loan, United Kingdom, Wit4Tq (Appellant) (Respondent) Pan:Aagcg9126Q

For Appellant: Ms. Shruti Khimta, ARFor Respondent: Shri M. S. Netrapal, CIT DR
Section 143(3)Section 144C(5)Section 9(1)(vi)Section 9(1)(vii)

does not impact the definition of royalty as defined in Article 13 of India-UK DTAA. Therefore, in terms of provisions of section 90(2) of the Act, the provisions which are more beneficial i.e. provisions of Act or DTAA, shall apply. Once it is accepted by the Revenue that

Bombardier Inc., Quebec, Canada vs. Assistant Commissioner of Income Tax, Circle 1(1)(2), Delhi

In the result, the appeal of the Assessee are allowed

ITA 1022/DEL/2025[2018-19]Status: DisposedITAT Delhi10 Dec 2025AY 2018-19

Bench: Shri M. Balaganesh & Shri Vimal Kumarbombardier Inc, Vs. Acit, 400, Dorval, Cote-Vertu, Circle-1(1)(2), Road West, Quebee Delhi Canada-H4S1Y9 (Appellant) (Respondent) Pan: Aaccb7177J Assessee By : Shri Sriram Seshadri, Cas Shri Varun Jain, Ca Shri Mohit Agarwal, Ca Ms. Amulya K. Ca Revenue By: Shri M. S. Nethrapal, Cit Dr Date Of Hearing 15/09/2025 Date Of Pronouncement 10/12/2025

For Appellant: Shri Sriram Seshadri, CAsFor Respondent: Shri M. S. Nethrapal, CIT DR
Section 144C(5)Section 147Section 9(1)(vii)

India under the Article 12(4) of India Canada Treaty and accordingly not liable to tax in India in terms of section 90(2) of the Act. Accordingly, the grounds raised by the Assessee are allowed. 13. In the result, the appeal of the Assessee are allowed. Order pronounced

Mariappan Austin Prakash, Bengaluru, Kanrnataka vs. Assistant Commissioner of Income Tax, Intl Txn Circle, Visakhapatnam

In the result, appeal of the assessee is allowed

ITA 89/VIZ/2025[2022-23]Status: DisposedITAT Visakhapatnam05 Dec 2025AY 2022-23

Bench: Shri Ravish Sood, Hon’Ble

Section 142(1)Section 143Section 143(2)Section 143(3)Section 144C(1)Section 144C(13)Section 144C(5)Section 195Section 9(1)(i)

beyond the period of limitation and hence void ab initio. 7. Further, he also submitted that as per the provisions of section 90(2) of the Act assessee being an NRI having and being a tax resident in Dubai is covered under the provisions of Article 14 of India ... Page. No 6 LT.A.No.89/VIZ/2025 Vijay Mariappan Austin Prakash = India-UAE DTAA and hence assessee is entitled for claiming the relief as per section 90(2) of the Act. 8. With regard to the income arising in India as per provisions of section 9(1)(i) of the Act, Ld.AR

Iqvia Ag, Switzerland vs. The Deputy Commissioner of Income Tax (Internaltional Taxation) - 2(2)(2), Mumbai

In the result, the appeal filed by the assessee is allowed in above terms

ITA 4549/MUM/2023[2021-22]Status: DisposedITAT Mumbai02 Dec 2025AY 2021-22

Bench: Ms. Padmavathy S & Shri Raj Kumar Chauhan

Section 142(1)Section 143(2)Section 144C(5)Section 90(2)

well the Tax Treaty as clarified in the ensuing paragraphs and therefore not taxable in India in absence of a PE. As per section 90(2) of the Act, the assessee is governed by ITA No. 3359 & 4549/Mum/2023 IQVIA AG the beneficial provisions of the Tax Treaty as compared ... clarified in the ensuing paragraphs and therefore not taxable in India. 1.12 As mentioned above IQVIA AG is resident of Switzerland, under Section 90(2) of the Act and accordingly we are governed by the beneficial provisions of the Tax Treaty as compared to the provisions of the Act, wherever

Iqvia Ag, Switzerland vs. The Income Tax Officer (International Taxation) - 2(2)(1), Mumbai

In the result, the appeal filed by the assessee is allowed in above terms

ITA 3359/MUM/2023[2020-21]Status: DisposedITAT Mumbai02 Dec 2025AY 2020-21

Bench: Ms. Padmavathy S & Shri Raj Kumar Chauhan

Section 142(1)Section 143(2)Section 144C(5)Section 90(2)

well the Tax Treaty as clarified in the ensuing paragraphs and therefore not taxable in India in absence of a PE. As per section 90(2) of the Act, the assessee is governed by ITA No. 3359 & 4549/Mum/2023 IQVIA AG the beneficial provisions of the Tax Treaty as compared ... clarified in the ensuing paragraphs and therefore not taxable in India. 1.12 As mentioned above IQVIA AG is resident of Switzerland, under Section 90(2) of the Act and accordingly we are governed by the beneficial provisions of the Tax Treaty as compared to the provisions of the Act, wherever

Jeanne Lee Cantrill, Delhi vs. DCIT, Circle 67(1), Delhi

Appeal is allowed

ITA 6322/DEL/2025[2016-2017]Status: DisposedITAT Delhi26 Nov 2025AY 2016-2017

Bench: Shri Satbeer Singh Godaraassessment Year: 2016-17

Section 143(3)Section 90(2)

division or a local authority thereof.” 5. This tribunal therefore finds merit in the assessee’s instant sole substantive grievance in light of section 90(2) of the Act to conclude that once the above DTAA’s provisions are more beneficial to her which would prevail over the normal provisions

Lm Wind Power As, Denmark vs. Assistant Commissioner of Income Tax, Circle International Tax 2(2)(1), Delhi

In the result, ground raised by the assessee is allowed

ITA 4280/DEL/2024[2020-21]Status: DisposedITAT Delhi21 Nov 2025AY 2020-21

Bench: Shris.Rifaur Rahman & Shri Yogesh Kumar U.S.Lm Wind Power As, Vs, Acit, Circle Juptervej 6, 6000 Kolding, International Tax 2(2)(1), Denmark – 999999. Delhi (Pan :Aabcl8590Q) (Appellant) (Respondent) Assessee By : Shri Ajay Vohra, Sr. Advocate Shri Aditya Vohra, Advocate Shri Arpitgoyal, Ca Revenue By : Shri Saroj Kumar Dubey, Cit Dr Date Of Hearing : 27.08.2025 Date Of Order : 21.11.2025 Order Per S. Rifaur Rahman: 1. This Appealpreferred By The Assessee Is Directed Against The Assessment Order Dated 27.01.2025 Passed By The Acit, Circle Int. Tax 2(2)(1), Delhi Under Section 143(3) R.W.S. 144C(13) Of The Income-Tax Act, 1961 (For Short ‘The Act”) For Assessment Year 2020-21 Pursuant To The Directions Of The Dispute Resolution Panel U/S 144C(5) Of The Act Raising Following Grounds Of Appeal :- “1. That On The Facts & Circumstances Of The Case & In Law, The Assessment Order Dated 29.07.2024 Passed Under Section 143(3) Read With Section 144C(13) Of The Income-Tax Act, 1961 (He Act") For Assessment Year 2020-21 Assessing The Total Income Of The Assessee At Rs.81,14, 14,893 Is Bad In Law, Void- Ab-Initio & Therefore, Liable To Be Quashed And/ Or Set Aside.

For Appellant: Shri Ajay Vohra, Sr. AdvocateFor Respondent: Shri Saroj Kumar Dubey, CIT DR
Section 143(3)Section 144C(13)Section 144C(5)Section 271ASection 44DSection 5Section 92C

With regard to Ground No.3.2, assessee does not have Fixed Place PE in India, he submitted that even otherwise, in terms of section 90(2) of the Act, the provisions of the Act are overridden by the provisions of the India-Denmark DTAA, to the extent the provisions

Kisan International Trading Fze, New Delhi vs. ACIT, Int. Tax 2(1)(2), Delhi

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

ITA 6152/DEL/2024[2012-13]Status: DisposedITAT Delhi19 Nov 2025AY 2012-13

Bench: Shris.Rifaur Rahman & Shri Yogesh Kumar U.S.Kisan International Trading Fze, Vs. Acit, Circle C/O Shri Tarandeep Singh, Advocate Int. Tax 2(1)(2), C – 179, Mansarover Garden, Delhi. New Delhi – 110 015. (Pan :Aaeck0424D) (Appellant) (Respondent) Assessee By : Shri Tarandeep Singh, Advocate Shri Sandeep Yadav, Advocate Revenue By : Shri Vikram Singh Sharma, Sr. Dr Date Of Hearing : 21.08.2025 Date Of Order : 19.11.2025 Order Per S. Rifaur Rahman: 1. The Assessee Has Filed Appeal Against The Order Of The Learned Commissioner Of Income-Tax (Appeals), Delhi – 43 [“Ld. Cit(A)”, For Short] Dated 06.12.2024 For The Assessment Year 2012-13 Raising Following Grounds Of Appeal :- “1. That On Facts & In Law The Order Dated 06Th December 2024 Passed By The Commissioner Of Income Tax (Appeals) (Hereinafter Referred To As The "Cit(A)'} & Order Dated 23Rd December 2019 Passed By The Assessing Officer (Hereinafter Referred To As The "Ao") Are Bad In Law & Void Ab Initio.

For Appellant: Shri Tarandeep Singh, AdvocateFor Respondent: Shri Vikram Singh Sharma, Sr. DR
Section 115A(5)Section 147Section 148Section 195Section 251

Authorities, it establish that both Argos and its parent company are Singapore residents, and its place of effective management is also in Singapore. Section 90(2) of the Act mandates that a DTAA “shall prevail” over domestic law unless POEM or Section 6 of the Act override treaty concessions

DCIT Circle 4(2), New Delhi vs. Canon India Pvt. Ltd., New Delhi

In the result, to sum up and conclude:

ITA 1038/DEL/2023[2005-06]Status: DisposedITAT Delhi10 Nov 2025AY 2005-06

Bench: Shri Challa Nagendra Prasad & Shri Naveen Chandra

For Appellant: Shri Himanshu Sinha, AdvFor Respondent: Shri Vijay B. Basanta, CIT-DR
Section 10ASection 143(3)Section 254Section 92C

wherein it has claimed refund of the entire amount withheld in Japan, basis the India Japan Double Taxation Avoidance Agreement (DTAA) read with section 90(2) of the Income Tax Act, 1961 on account of total taxes of Rs. 4,47,81,650/- withheld in Japan, out of which