TaxTMI 
TaxTMI 
TaxTMI 
2019 (7) TMI 363
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....n Netherlands, received certain payments from India towards Royalty and Fees for Technical Services (FTS) after TDS @ 10%. The assessee filed its return of income to claim the credit of TDS made from its receipts. The Assessing Officer passed an intimation u/s 143(1) of the Act for the AYs 2009-10 and 2010-11 bringing the income to tax @ 42.23% which included education cess and surcharge as well. The assessee filed an application u/s 154 of the Act stating that as per the DTAA between India and Netherlands, the tax rate applicable is 10% only and since the DTAA is beneficial to the assessee, the tax should be levied at 10% only as was done at the time of payment by way of TDS. It was also submitted that the TDS credit was not given and the....
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....ssessing Officer wherein he has submitted that the rectification application u/s 154 was disposed of by order dated 16/04/2012 pertaining to the assessment year 2009-10 and 2010-11 but since it pertained to the assessment years more than six years earlier, the relevant dispatch registers are not available and hence he is not able to prove the service of the same on the assessee. He has supplied the copies of the screen shots of the orders for the relevant assessment years and as seen therefrom, we find that the rate of tax has been modified and taken @ 10%, but education cess and surcharge and also the interest u/s 234A, 234B and 234C were levied. In the second rectification order, which is before us also, only the TDS credit has been given....
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....rding to him, it is clear that the same is not chargeable in view of the DTAA between India and Netherlands. 5. On the other hand, Ld DR supported the orders of the authorities below and submitted that though the DTAA refers to income tax and surcharge, the education cess is not referred to therein and it cannot be considered as surcharge. He submitted that education cess is for a particular purpose mentioned therein and cannot be utilised like income tax by the Government and hence it cannot be considered as part of the income tax. 6. Having regard to the rival contentions and the material on record, we find that the tax treaty between India and Netherlands was entered into in 1989 and subsequently amended in the year 1999. Article 2 and....
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....n the case of Sunil V. Motiani vs. ITO (International Taxation) reported in [2013] 59 SOT 37 / 33 taxmann.com 253 (Mum.) has held as under:- "3. The assessee is a tax resident of Singapore and claim benefit under DTAA between India and Singapore in the return of income. The assessee offered interest income to the tax as 15% as per the provisions of Article 11(2)(b) of DTAA between India and Singapore. The AO, while processing the assessment u/s 143(1) levied Surcharge and education cess on the interest income. The assessee challenged the action of the AO before the CIT(A). The CIT(A) deleted the Surcharge and education cess on the ground that the scope of adjustment u/s 143(1) is limited and the question of upper ceiling for the rate of t....
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.... are dealt with separately in any other Article of the agreement, provisions of those Articles should not be affected by the provisions of this Article. In other words, in case there is provision for dealing with a particular type of income, such type of income has to be dealt with by those provisions. Therefore, though interest income may have been assessed as business income, there being specific Article to deal with interest income i.e. Article-11, taxation of interest will be governed by the said Article-11. Secondly interest income may be taxed in contracting State in which it arises, according to law of that State but if the recipient is beneficial owner of interest, tax so charged shall not exceed 5% of gross interest if the interest....