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2012 (10) TMI 133 - AT - Income TaxIndia UAE DTAA - interest income - at the rate of 12.5% under DTAA OR 40% as per ITA - Held that - Assessee in this case is a UAE resident. The DTAA with the UAE mandates that interest income be taxed @ 12.5% under Article 11(2)(b) of the said DTAA. Also Board Circular No. 728 F.No. 500/12/95-FTD) dated 30.10.1995 which states that any remittance to a country with which a DTAA is in force, tax should be deducted at the rates provided in the Finance Act of the relevant year or at the rates provided in the DTAA, whichever is more beneficial to the assessee - in favour of the assessee. Short term capital gains - Held that - As the benefit of Indo-UAE Treaty is available with the assessee and short term capital gains derived by him from sale of shares/securities in India were not taxable in India terms of Article 13(3) of the Indo-UAE Tax Treaty - in favour of the assessee. Annual Letting Value(ALV) of the property - claim of deduction of amount paid to cooperative society - Held that - Assessee has claimed a sum of Rs. 22,888/- was paid by it towards common maintenance of the building including the provision of lift, cleaning of common areas etc. provided by the assessee to the occupants of the flat. Thus, it is the assessee s argument that while determining the rent receipt by it from the tenant, the amount of Rs. 22,888/- should have been excluded from the gross amount of the rent received by the assessee since it was only reimbursement of the utility charges paid by the assessee to the society on behalf of the tenant for the services enjoyed by the tenant. Thus the view adopted by the CIT (A) is cogent one to allow the deduction of Rs. 22,888/- while computing the netted ALV of the house - in favour of the assessee.
Issues Involved:
1. Taxation rate of interest income under India UAE DTAA. 2. Taxability of short-term capital gains under India UAE DTAA. 3. Deduction of maintenance charges while computing annual value of house property. Detailed Analysis: 1. Taxation Rate of Interest Income under India UAE DTAA: The Revenue contested the Ld. Commissioner of Income Tax (A)'s decision to tax the interest income earned by the assessee at 12.5% under the India UAE DTAA instead of 40% under the Income Tax Act due to the absence of a tax residence certificate. The assessee, a resident of Dubai, claimed the interest income should be taxed at the beneficial rate of 12.5% as per Article 11(2)(b) of the Indo-UAE DTAA. The Ld. Commissioner of Income Tax (A) upheld the assessee's claim, referencing CBDT Circular No. 734, which clarified that tax should be deducted at the rate more beneficial to the assessee. The Tribunal supported this view, noting that similar appeals for previous years were decided in favor of the assessee and that the Revenue could not provide contrary evidence. Thus, the Tribunal upheld the decision to tax the interest income at 12.5%. 2. Taxability of Short-Term Capital Gains under India UAE DTAA: The Assessing Officer taxed the short-term capital gains at 10% under section 111A of the Income Tax Act, rejecting the assessee's claim that such gains were not taxable in India as per Article 13(3) of the Indo-UAE DTAA. The Ld. Commissioner of Income Tax (A) referred to previous decisions, including ITAT rulings and AAR decisions, which supported the assessee's position that the DTAA benefits were applicable despite the UAE not having a tax regime. The Tribunal, agreeing with the Ld. Commissioner of Income Tax (A), noted that the ITAT in the case of Mustaq Ahmed Vakil had upheld similar claims, and the amended treaty provisions were not applicable before 1.4.2008. Therefore, the Tribunal confirmed that the short-term capital gains were not taxable in India under the Indo-UAE DTAA. 3. Deduction of Maintenance Charges While Computing Annual Value of House Property: The assessee claimed a deduction of Rs. 22,888/- paid to the cooperative society for maintenance while computing the Annual Letting Value (ALV) of the property. The Assessing Officer rejected this claim, stating that the standard 30% deduction under section 24 of the Act subsumed all repair and maintenance expenses. However, the Ld. Commissioner of Income Tax (A) accepted the assessee's argument that these charges were reimbursements for services provided by the society and should be excluded from the gross rent received. The Tribunal upheld this view, noting that the identical issue had been decided in favor of the assessee in the previous assessment year and that the Revenue could not counter these facts. Therefore, the Tribunal upheld the deduction of Rs. 22,888/- while computing the ALV. Conclusion: The Tribunal dismissed the Revenue's appeal, upholding the decisions of the Ld. Commissioner of Income Tax (A) on all three issues. The interest income was to be taxed at 12.5% under the Indo-UAE DTAA, the short-term capital gains were not taxable in India under Article 13(3) of the DTAA, and the maintenance charges were deductible while computing the ALV of the property.
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