2024 (11) TMI 1252 - AT - Income Tax

UAE resident claims tax exemption under India-UAE DTAA for capital gains successfully

Saket Kanoi Versus DCIT, International Taxation, Gurgaon

Saket Kanoi Versus DCIT, International Taxation, Gurgaon - TMI Issues Involved:1. Denial of benefits under Article 13(5) of the India-UAE DTAA on capital gains.2. Applicability of the India-UAE DTAA in the absence of UAE income tax laws for individuals.3. Interpretation of 'liable to tax' under Section 90(1) of the Income Tax Act.4. Consideration of precedents in similar cases.5. Reliance on judgments deemed not good law.6. Reference to the UAE Tax Decree of 1969.7. Impact of CBDT Notification No. 282 of 2007 on treaty benefits.Detailed Analysis:1. Denial of Benefits under Article 13(5) of the India-UAE DTAA:The primary issue was whether the appellant could claim exemption from Indian tax on capital gains from the sale of debt mutual funds under Article 13(5) of the India-UAE DTAA. The Assessing Officer (AO) and the Dispute Resolution Panel (DRP) denied this benefit, arguing that the appellant was not considered a 'person' under the UAE Tax Decree of 1969, and there was no existing income tax law in the UAE applicable to individuals. Consequently, the capital gains of Rs. 1,54,01,166/- did not qualify for treaty benefits.2. Applicability of the India-UAE DTAA:The AO and DRP concluded that since the appellant was not 'liable to any taxes' in the UAE, the India-UAE DTAA benefits could not be extended. The absence of double taxation was a critical factor, as the income had not been taxed anywhere else globally, leading to the disallowance of treaty benefits.3. Interpretation of 'Liable to Tax' under Section 90(1):The DRP and AO interpreted Section 90(1) of the Income Tax Act, emphasizing the phrase 'taxes paid,' which suggested that actual tax payment was necessary to claim treaty benefits. This interpretation was challenged by the appellant, who argued that the right to tax, rather than actual payment, should suffice for invoking DTAA provisions.4. Consideration of Precedents:The appellant relied on various case laws, such as ADIT vs. Green Emirates Shipping and others, where similar issues were adjudicated in favor of the taxpayer. These cases emphasized that the term 'liable to tax' does not necessarily require actual tax payment but includes the potential to be taxed.5. Reliance on Judgments Deemed Not Good Law:The AO and DRP relied on judgments like Cyril Eugene Pereira and Abdul Razak, which were treated as not good law by other tribunals. The appellant argued that these cases did not persuade even the Supreme Court and should not have been relied upon.6. Reference to the UAE Tax Decree of 1969:The AO mentioned the UAE Tax Decree of 1969, which excluded individuals from the definition of 'person' liable to tax. The appellant contended that this decree was irrelevant to the current India-UAE DTAA, which came into force in 1993.7. Impact of CBDT Notification No. 282 of 2007:The appellant argued that the CBDT Notification No. 282 of 2007 amended the India-UAE Treaty, indicating that taxability in one contracting state is not a prerequisite for availing treaty benefits. This was supported by the Mumbai ITAT's decision in the Meera Bhatia case.Conclusion:The Tribunal, guided by settled principles and precedents, concluded that the appellant was eligible for the benefits of the India-UAE DTAA. It emphasized that the right to tax in the UAE, even if not exercised, was sufficient to claim treaty benefits. The Tribunal relied on prior judgments, such as Green Emirates Shipping and others, which clarified that actual tax payment is not a condition precedent for treaty benefits. Consequently, the appeal was allowed, granting the appellant exemption from Indian tax on the capital gains in question.