2007 (6) TMI 550

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....ion for the opinion of this Court:" Whether on the facts and in the circumstances of the case, the Income tax Appellate Tribunal was right in law in upholding the Deputy Commissioner of Income tax (Appeals) order holding that the relief under the agreement for the avoidance of double taxation of income was available to the assessee and the salaries and perquisites received by the assessee were ....

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....2003] 263 ITR 760, wherein, in an almost similar situation, it was stated (page 741) "in our view, the contention of the respondents proceeds on the fallacious premise that liability to taxation is the same as payment of tax. Liability to tax is a legal situation; payment of tax is a fiscal fact." The court further takes into consideration the Model Tax Convention of 1992 and reproduces article 4.....

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....accord with the terms of the agreement and the language employed in article XIV (2)(c) of the agreement. In fact, the Tribunal did observe on these lines but did not insist thereafter for applying the Austrian law when it observed that, if India was to give up its right to tax for the income earned in India, it had to be satisfied that the assessee was liable to pay tax in respect of that income i....

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....opinion, and we decline to answer the same leaving the parties to adduce whatever necessary evidence they may choose to place on record, and direct the Tribunal to decide the issue in accordance with law after taking into consideration further evidence that may be adduced by the parties. The reference stands disposed of accordingly. There shall be no order as to costs." Considering the view tak....