TaxTMI 
TaxTMI 
2021 (12) TMI 394
X X X X Extracts X X X X
X X X X Extracts X X X X
....the case, and in law, the Ld. CIT(A) erred in holding that the assessee was not required to deduct tax at source on the remittance to IIRF Holdings XVI Ltd. towards buyback of shares. 1.2 That in the facts and circumstances of the case, and in law, the Ld. CIT(A) erred in holding that the assessee was not required to deduct tax at source on the remittance to IIRF Holdings XVI Ltd. towards buyback of shares, without following the decision of the Hon'ble ITAT (Bangalore) in Fidelity Business Services India Pvt. Ltd. (I.T.(T.P.)A. No.416/Bang/2016), and without considering that the assessee had not established that the price paid per share was the fair market price. 1.3 That in the facts and circumstances of the case, and in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....€¢ Copy of the Order of the Supreme Court's Ruling in case of UOI & Anr. Vs Azadi Bachao Andolan & Anr dated 31.05.2002 wherein the Hon'ble Supreme Court has quashed the order of the Delhi High Court and held that that Circular No. 79 dated 13.04.2000 is valid and efficacious. • Power of Attorney. 5. The facts of the case are that M/s IIRF Holding XVI Limited, Mauritius [having PAN - AACC17719K] has sold 2495770 fully paid Series A Compulsory Convertible Cumulative Preference Shares of M/s Bhartiya Urban Infrastructure & Land Development Co Pvt. Ltd [BUILDCO] of face value of Rs. 10/- each for an aggregate consideration of INR Rs. 43,42,63,980/- to the assessee company i.e. M/s Bhartiya Realty and Infrastructure Private ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... (2) (3) (4) Rs. 41,93,06,280/- Rs. 6,28,95,942/- Rs. 2,70,45,255/- Rs. 8,99,41,197/- 7. The assessee agitated the matter before the ld. CIT(A) and vehemently contended that the rulings of the AAR relied upon by the Assessing Officer is totally misplaced as in the assessee's case, share holding of Mauritius based company in share capital of the company is just 8.08% and the assessee company has made no distribution of dividend. 8. It was further pointed out to the ld. CIT(A) that the Assessing Officer has not followed the binding Circular of the CBDT Circular No. 3/2016 dated 26.12.2016. 9. After considering the facts and submissions, the ld. CIT(A) observed as under: "5.6 Further, the appellant pointe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....troduced with effect from 01/06/2013. As regards chargeability of capital gains under Section 46A of I.T. Act, the paragraph 4 of Article 13 of Avoidance of double taxation treaty between India and Mauritius grants the right of taxation to Mauritius if the capital gain arises to resident of Mauritius. The Article 13 of the treaty is reproduced as under : ARTICLE 13 - Capital gains - 1 Gains from the alienation of immovable property, as defined in paragraph (21 of article 6. may be taxed in the Contracting State in which such property is situated. 2. Gains from the alienation of movable property forming part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Con....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ew of paragraph 4 of Article 13 of Avoidance of double taxation treaty between India and Mauritius, therefore, there is no requirement to withheld tax on such remittance. Hence, the ground of appeal is allowed." 10. Before us, the ld. DR strongly supported the findings of the Assessing Officer. 11. Per contra, the ld. counsel for the assessee reiterated what has been stated before the lower authorities. 12. We have carefully considered the orders of the authorities below and have gone through the statement of HSBC placed at PDF page 8 of the paper book. We find that the remittances have been made on 31.05.2013 which conclusively proves that the assessee company remitted the buy-back of equity shares on or before 31.05.2013 which ma....