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TMI Blog2011 (4) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... te deducting TDS - The Tribunal has failed to see that the condition laid down in Article 16(2)(b) was not fulfilled by the assessee and, therefore, the finding of the Tribunal is to be interfered with - Accordingly decided against the assessee - 150 of 2008 - - - Dated:- 27-4-2011 - MR.JUSTICE ELIPE DHARMA RAO, MR.JUSTICE M. VENUGOPAL, JJ. For Appellant : Mr. K. Subramanian Sr. Standing Counsel For Respondent : Mr. R. Venkatanarayanan for M/s Subbaraya Aiyer JUDGMENT This Appeal is filed by the Revenue in respect of the assessment year 2001 - 02 against the order dated 27.4.2007 passed by the Income Tax Appellate Tribunal, "B" Bench, Chennai and was admitted on the following substantial questions of law: "1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Income Tax (Appeals), who confirmed the order of the Assessing Officer holding that the contention of the assessee that Article 16 of the DTAA is applicable to his case is not tenable, since he has not paid any tax in UK on this portion of income claimed. This order was carried in appeal to the Income Tax Appellate Tribunal by the assessee. The Tribunal, after considering various contentions raised before it, deleted the addition by setting aside the order of the Commissioner of Income Tax (Appeals). Aggrieved by the same, the Revenue has preferred the present appeal. 3. Heard the learned counsel appearing for the parties and perused the materials on record. 4. The assessee has claimed the salary amounting to Rs.15,25, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Notwithstanding the provisions of paragraph 1 of this Article, remuneration derived by a resident of a Contracting Stat in respect of any employment exercised in the other Contracting State shall not be taxed in that other State if: a. He is present in that other State for a period of not exceeding in the aggregate 183 days during the relevant fiscal year; b. the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State; and c. the remuneration is not deductible in computing the profits of an enterprise chargeable to tax in that other State." 6. The aforesaid provisions contained in DTAA make it clear that if the remuneration is received by a resident of the contracting State in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies have also found after verification of the return filed abroad that this portion of the salary paid in India through the Indian concern was claimed as exempt in United Kingdom and the same was not subjected to tax. The Tribunal has reversed the aforesaid factual finding of the authorities by holding that the certificate produced by the assessee had shown that it was a part of the arrangement and UDV India Ltd. was only acting as a postman and such money was being recovered from the holding Company i.e., Diageo Plc, U.K., and it was further held that the salary amount was never claimed as expenditure by UDV India Ltd. 8. The amount in question is the portion of the assessee's salary received and retained in India as per the terms of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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