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TMI Blog2016 (1) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... lms Ltd. was claimed as refund. Held that:- As decided in P and O Nedlloyd Ltd. v. Asst. DIT (International Taxation) [2014 (11) TMI 564 - CALCUTTA HIGH COURT] the benefit of Indo-UK treaty is available to the partnership firm registered in UK even though the firm is not recognised as taxable entity under the taxation provisions of UK. Thus we hold that the assessee is entitled to Indo-UK Double Taxation Avoidance Agreement benefits and accordingly dismiss the appeal filed by the Revenue. - Decided against revenue - I. T. A. No. 6245 /Mum/ 2008 (assessment year 2001-02). - - - Dated:- 9-10-2015 - B. R. BASKARAN (Accountant Member) and PAWAN SINGH (Judicial Member) Shridhar E. for the appellant. Sanjiv M Shah for the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled return of income as representative assessee of a firm of solicitors based in UK, named Millbank Tweed Hadley and Mccloy . M/s. Zee Telefilms Ltd. had engaged the abovesaid solicitor for its proposed ADR offering. M/s. Zee Telefilms Ltd. paid fees to the solicitors and deduced tax at source of ₹ 70.16 lakhs. Later it filed return of income as a representative of the abovesaid solicitors' firm declaring the total income as nil. Accordingly, the entire amount of TDS deducted by M/s. Zee Telefilms Ltd. was claimed as refund. The Assessing Officer noticed that a partnership firm is not liable for taxation in the UK and hence it is not a taxable entity under the laws of UK. The Assessing Officer took the view that the benefits of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in P and O Nedlloyd Ltd. v. Asst. DIT (International Taxation) on November 7, 2014 in W.P. No. 457 of 2005 and W.P. No. 458 of 2005 [2014] 369 ITR 282 (Cal) and submitted that the hon'ble High Court has held that the benefit of Indo UK treaty is available to the partnership firms formed in UK also. The learned authorised representative further submitted that the co-ordinate Bench of the Tribunal, vide its order dated July 16, 2010 rendered in the case of Linklaters LLP v. ITO (International Taxation) in I. T. A. No. 4896/ Mum/2003 relating to the assessment year 1995-96 [2011] 9 ITR (Trib) 217 (Mum), has also taken an identical view. Accordingly, the learned authorised representative submitted that the appeal filed by the Revenue is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her contracting state' mean respectively an enterprise carried on by a resident of a contracting state and an enterprise carried on by a resident of the other contracting state. 2. A partnership which is treated as a taxable unit under the Income tax Act, 1961 (43 of 1961), of India shall be treated as a person for the purposes of this Convention. Article 4-Fiscal Domicile 1. For the purposes of this Convention, the term 'resident of a Contracting State' means any person who, under the law of that State, is liable to taxation therein by reason of his domicile, residence, place of management or any other criterion of a similar nature. Article 9-Shipping 1. Income of an enterprise of a Contracting State from the ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the operation of paragraph 2 of article 3 of the said convention. Such conclusion is inescapable as the Revenue must bring a charge of Income-tax against a person under section 4 of the Income-tax Act, 1961. The Revenue in treating the said partnership as an assessee and seeking to assess income of it which had escaped assessment is for the purpose of charging tax on the income of the said partnership, treating it as a person liable to be charged with the levy of Income-tax under the said section. In doing so the Revenue has to treat the said partnership as a person within the definition provided of person under section 2(31)(iv) of the said Act. Thus the Revenue's case the said partnership is not covered by the said convention fails. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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