Judicial analysis - Judicial analysis - Germany

Judicial analysis See the following cases dealing with old agreements : Words subject to the provisions of paragraph (3) in article III(1) of Double Taxation Avoidance Agreement (between Federal Republic of Germany and India) would indicate that while industrial or commercial income of the foreign enterprise are not taxable in India, the rents, royalties, interests, dividends, etc., derived by the foreign enterprise from sources in India are taxable - CIT v. Visakhapatnam Port Trust 1983 (6) TMI 31 - ANDHRA PRADESH HIGH COURT . Words any other form of indebtedness from sources in the other territory could only mean interest arising or accruing as a separate source of income -CIT v. Visakhapatnam Port Trust 1983 (6) TMI 31 - ANDHRA PRADESH HIGH COURT . Mere supply of a plant by a foreign company whose assembly and erection are undertaken by purchaser under supervision of engineer deputed by supplier does not amount to foreign company having a permanent establishment - CIT v. Visakhapatnam Port Trust 1983 (6) TMI 31 - ANDHRA PRADESH HIGH COURT . A sub-contractor cannot be treated as an agent within meaning of article II(1)(i)(dd) of Double Taxation Avoidance Agreement between Federal Republic of Germany and India - CIT v. Visakhapatnam Port Trust 1983 (6) TMI 31 - ANDHRA PRADESH HIGH COURT . Where supplier of machinery had a permanent establishment in Germany where press was manufactured and certain services were rendered in connection with setting up of that press in India, this could not be treated as personal service in any way even if agreement for rendering service was embodied in a separate agreement; as such in view of agreement for avoidance of double taxation between Germany and India, tax was not deductible at source from amount paid to German company for such services - Andrew Yule Co. Ltd. v. CIT 1992 (11) TMI 19 - CALCUTTA HIGH COURT . Fees for technical services is industrial or commercial profit and, therefore, would be entitled to exemption as per article III of DTA between India and Germany - AEG Telefunken v. CIT 1998 (3) TMI 107 - KARNATAKA HIGH COURT . In case of a non-resident, who is a resident of Germany, income arising to him in India by way of royalties or technical charges could be taxed in India Dy. CIT v. UHDE GmbH 1994 (5) TMI 46 - ITAT BOMBAY-E . Expression laws in force occurring in Article XVI, para 1 of Agreement for Avoidance of Double Taxation between India and Federal German Republic, must mean the laws in force at the time the construction of a term is to be done and the term is not restricted to the law in force at the time of execution of the Agreement ITO v. Leonhardt Andra UND Partner 1987 (2) TMI 104 - ITAT CALCUTTA-B . Where assessee German resident had adopted calendar year for his assessment in Germany, for purpose of assessment of his income in India also, same should be taken as previous year in view of article II(1)(g) of Agreement for Avoidance of Double Taxation between Germany and India and financial year could not be taken as previous year on ground that he did not maintain accounts M.G.K. Blum v. Second ITO 1983 (11) TMI 90 - ITAT BANGALORE . Where assessee was not concerned with actual installation of plant but mere supervision of same, which was not same thing as installation of project, assessee could not be said to be having a permanent establishment in India within the meaning of article II(1)(h)(cc) of AADT between Germany and India UDHE GmbH v. Dy. CIT 1996 (8) TMI 545 - ITAT MUMBAI . Where under supply and service agreement with Indian company for establishing a fertiliser project, assessee, a West German company, purchased bulk material for Indian company and charged from Indian company cost plus 4 per cent as procurement fee, procurement fee was not assessable as royalty and fee for technical services but was to be treated as industrial and commercial profit which was not taxable in view of Double Taxation Agreement between India and West Germany Linde A.G. v. ITO 1997 (1) TMI 479 - ITAT MUMBAI . There is no merit in contention that only that amount of royalty that was derived from the operation of a mine, quarry, or any other extraction of natural resources as stated in article IX of the Double Taxation Avoidance Agreement alone was to be excluded from industrial and commercial profits and there being no provision for exclusion of other kinds of royalties, any other receipt of royalty was not subject to taxation. As provided in article XVI(I), the law of respective States shall apply unless contrary is provided in the DTA. It means that if there was no provision for the treatment to be given to the royalty, other than the royalty under Article IX of the DTA, the same would be subject to Indian taxation and taxable in India under section 9(1)(viii) of the Act. DTA does not provide that any receipt, which does not fall in any of the clauses, would be taxable under the Income-tax Act or would be excluded from the purview of Indian taxation G.U.J. Jaeger GmbH v. ITO 1990 (9) TMI 126 - ITAT BOMBAY-A . The contention that the consideration pertaining to the provision of recurring know-how would also be a part of industrial and commercial profits has no force. It would be in the nature of royalty and there being a specific exclusion of royalty from the definition of industrial and commercial profits, by Article III(3) of DTA, it would not enjoy the exemption on the ground that the assessee had no permanent establishment in India G.U.J. Jaeger GmbH v. ITO 1990 (9) TMI 126 - ITAT BOMBAY-A . Rendering of consultancy service in India by non-resident in connection with industrial project would not amount to doing industrial or commercial activity within meaning of Double Taxation Avoidance Agreement between Federal Republic of Germany and India so as to make section 195 inapplicable to payments made by assessee to non-resident Gujarat Narmada Valley Fertilisers Co. Ltd. v. ITO 1981 (6) TMI 42 - ITAT AHMEDABAD-B . Under no circumstances executive authority can make an item of income as of taxable nature with retrospective effect if the same is not provided in the protocol - Tata Iron Steel Co. Ltd. v. Dy. CIT 1998 (6) TMI 566 - ITAT MUMBAI . Words subject to the provisions of paragraph (3) in article III(1) of Double Taxation Avoidance Agreement (between Federal Republic of Germany and India) would indicate that while industrial or commercial income of the foreign enterprise are not taxable in India, the rents, royalties, interest, dividends, etc., derived by the foreign enterprise from sources in India are taxable CIT v. Visakhapatnam Port Trust 1983 (6) TMI 31 - ANDHRA PRADESH HIGH COURT . Words any other form of indebtedness from sources in the other income could only mean interest arising or accruing as a separate source of income CIT v. Visakhapatnam Port Trust 1983 (6) TMI 31 - ANDHRA PRADESH HIGH COURT . Mere supply of a plant by a foreign company whose assembly and erection are undertaken by purchaser under supervision of engineer deputed by supplier does not amount to foreign company having a permanent establishment CIT v. Visakhapatnam Port Trust 1983 (6) TMI 31 - ANDHRA PRADESH HIGH COURT . A sub-contractor cannot be treated as an agent within meaning of article II(I)(i)(dd) of Double Taxation Avoidance Agreement between Federation Republic of Germany and India CIT v. Visakhapatnam Port Trust 1983 (6) TMI 31 - ANDHRA PRADESH HIGH COURT . Where supplier of machinery had a permanent establishment in Germany where press was manufactured and certain services were rendered in connection with setting up of that press in India, this could not be treated as personal service in any way even if agreement for rendering service was embodied in a separate agreement; as such in view of agreement for avoidance of double taxation between Germany and India, tax was not deductible at source from amount paid to German company for such services Andrew Yule Co. Ltd. v. CIT 1992 (11) TMI 19 - CALCUTTA HIGH COURT . Amendment to 1959/60 DTAA between India and Federal Republic of Germany by GSR No. 680(E), dated 26-8-1985 could not be made effective from 1-4-1984 Tata Iron Steel Co. Ltd. v. Dy. CIT 1998 (6) TMI 566 - ITAT MUMBAI (Tax. Mag.).