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TMI Blog2022 (11) TMI 1447X X X X Extracts X X X X X X X X Extracts X X X X ..... ITA No. 5711/DEL/2017 and decided the issue in favour of the assessee partly. 5. Per contra, the ld. DR fairly conceded to this. 6. We have carefully perused the orders of the authorities below. We find force in the contention of the ld. counsel for the assessee. An identical issue came up for hearing before this Tribunal in Assessment Year 2012-13 in ITA No. 5711/DEL/2017. This Tribunal has considered the issue at Para 6 of its order and, thereafter, held as under: "7. Insofar as the amortisable portion of the lease taken from the Noida Authority is concerned, Ld. AR fairly admitted that this issue is covered against the assessee by the order of the Hon'ble Delhi High Court in ITA No.205/2010 dated 12.07.2012 pertaining to the assessment year 2004-05, and though the assessee is in appeal before the Hon'ble Supreme Court on that issue, as the things stand today the assessee is bound by the order of the Hon'ble Delhi High Court. 8. Assessee is, therefore, confining the challenge in respect of the land at Visakhapatnam into Tuticorin, which issue is quite different from the issue relating to the Noida land. On this aspect it is the submission of the Ld. AR that in assessee's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. Facts on record show that during the year, the assessee has not earned any tax free income which may trigger application of provisions of section 14A of the Act. Such issue has now been decided in favour of the assessee and against the Revenue by the decision of the Hon'ble Jurisdictional High Court of Delhi in the case of Era Infrastructure [India] Pvt Ltd 327 CTR 0489 wherein the Hon'ble High Court, following the decision in the case of IL & FS Energy Development Company Ltd. 2017 SCC Online Del 9893 held that no disallowance u/s 14A of the Act can be made if the assessee had not earned any exempt income. 11. The Hon'ble Delhi High Court further considered the amendment made by the Finance Act, 2022 to Section 14A of the Act and held as under: "Consequently, this Court is of the view that the amendment of Section 14A, which is "for removal of doubts" cannot be presumed to be retrospective even where such language is used, if it alters or changes the law as it earlier stood. 9. Though the judgment of this Court has been challenged and is pending adjudication before the Supreme Court, yet there is no stay of the said judgment till date. Consequently, in view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... racting State and which are designed to promote development." The relevant portions of Article 11, which deals with dividend income in the DTAA, reads as follows: "1. Dividends paid by a company which is resident of a Contracting State to a resident of the other Contracting State may be taxed in that other Contracting State. 2. However, such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident and according to the laws of the State, but if the recipient is the beneficial owner of the dividends, the tax so charged shall not exceed:..." Naturally, the revenue's argument is that Article 11 (1) applies, to say so, it urges that the dividend income is not taxed, at least as far as co-operative societies are concerned and that in any event, the certificate relied upon by the assessee to claim the benefit of Article 25 (2) was not issued by a competent Omani authority. 25. The Tribunal noticed- in this court's opinion, correctly- that the expression "incentive" is neither defined in the Omani Tax Laws nor in the Income Tax Act, 1961. Due to this, OMIFCO wrote in November 2000 to Oman Oil Company SAOC seeking au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Permanent Establishments of the Indian Investors, as it would form part of their gross income under Article 8, if not for the tax exemption provided under Article 8 (bis) . As the introduction of Article 8 (bis) is to promote economic development in Oman, the Indian Investors should be able to obtain relief in India ITA NOS. 6785&6786/DEL/2015 (AYRS. 2010- 11 & 2011-12) KRISHAK BHARATI CO-OPERATIVE LIMITED VS. ACIT under Article 25 (4) of the Agreement for Avoidance of Double Taxation in India. All other matters covered in our letter No. FT/13/92/, dated 6th August, 2000 remained un-changed. " 26. The Tribunal concluded that the above clarification showed that the amendment of the law was to promote Omani economic development and to encourage investment in Omani companies. The Sultanate of Oman itself therefore clarified the issue regarding interpretation of Article 8 (bis). The tribunal held, in the light of this letter as follows: "It is an accepted position of interpretation that if there is some doubt about the interpretation of a particular provision of Law, the Competent Authority to clarify that provision is only the Government of that particular country. The Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilarly. The ITAT also noticed as follows: "Up to the tax year 2011 dividend has been first included in the total income and thereafter deduction has been granted. The facts mentioned above clearly establish that the Assessee Society is entitled to getting credit for the deemed dividend tax by virtue of the provisions of DTAA read with Section 90 of the Income Tax Act, 1961 together with the clarifications issued by the Sultanate of Oman and the assessment made under the Omani Laws. In view of the above it is respectfully submitted that on merits also Assessee Society is entitled for the tax credit which has been rightly allowed by the Assessing Officer and, therefore, the Ld. PCIT has completely erred in giving directions to the Assessing Officer under Section 263 to withdraw the said tax credit." These findings are, in this court's opinion, in consonance with logic and reason and do not call for interference. Both questions of law are answered in favour of the assessee; the appeals fail and are, therefore, dismissed." 15. Respectfully following the binding decision of the Hon'ble High Court [supra], Ground No. 3 is also dismissed. 16. In the result the appeal of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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