2008 (11) TMI 281

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.... considered the provisions of ss. 4, 190 and 191 and came to the conclusion that no credit for such TDS certificate could be given because the assessee had failed to pay tax in respect of the foreign income under the provisions of the IT Act, 1961. In the first appeal the learned CIT(A) relying on the order passed by the Bangalore Bench of the Tribunal in Wipro Ltd. vs. Dy. CIT (2005) 96 TTJ (Bang) 211, accepted the assessee's claim and came to the conclusion that the provisions of s. 90 were applicable and hence the assessee was entitled to the credit of TDS abroad to the extent it was relatable to the year in question amounting to Rs. 49,19,743. 3. The first grievance of the Revenue is on the granting of relief by the learned CIT(A) in p....

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.... or the learned first appellate authority. To find fault in the assessment order is outside the domain of the arguments of the learned Departmental Representative as such power vests with the learned CIT under s. 263 for revising any order which is erroneous and prejudicial to the interest of the Revenue. We are, therefore, not inclined to accept these grounds as they do not emanate from the orders of the authorities below. Be that as we will notice infra that the issue was not at all debatable or capable of having two views. 5. On merits it is observed that the assessee earned income of Rs. 16.24 crores which included the professional receipts from UK as well as USA. It is an undisputed fact that the income on which tax was deducted in th....

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....of deduction of tax paid in foreign country against the tax determined as due in the other country. If any provision under the Act comes in conflict with that enshrined in the DTAA, then the latter will have overriding effect over the former. Accordingly the reliance of the AO on the provisions of ss. 4, 190 and 191 is meaningless in as much as the specific provisions have been contained in this regard in both the treaties. 6. The art. 24(2) of DTAA between India and UK provides as under: "Subject to the provisions of the law of India regarding the allowance to the credit against Indian tax paid in a territory outside India (which shall not affect the general principle hereof), the amount of the UK tax paid, under the laws of the UK and i....