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Commissioner of Income-tax Vs. Estienne Andre, - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtMumbai High Court
Decided On
Case NumberIncome-tax Application Nos. 202-06 and 211-13 of 1997
Judge
Reported in[2000]242ITR422(Bom)
ActsIncome Tax Act, 1961 - Sections 90, 90(1), 90(2) and 256
AppellantCommissioner of Income-tax
RespondentEstienne Andre, ;crequer Jean Claude, ;gyepeyrous Jean Vyes, ;hanwell Jacques, ;fortier Jean Claude,
Appellant AdvocateR.V. Desai and ;P.S. Jetley, Advs.
Respondent AdvocateD.K. Vyas and ;P.C. Tripathy, Advs.
Excerpt:
.....agreement entered between india and foreign country - remuneration received by employees for services rendered outside india not subjected to tax in india as per article 14 (1). - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under..........the fact that the contract for services between the assessee and spie capag is for the services rendered in india and payment is for services rendered in india which is the contracting state for the assessee ?' 2. we have heard mr. r. v. desai, learned counsel for the petitioners. we have also heard mr. d. k. vyas, learned counsel for the respondents. mr, vyas submitted that the proposed question is wrongly framed as it gives an impression that the services were rendered in india, whereas, there is a categorical finding of the income-tax appellate tribunal ('the tribunal'), to the effect that the services were rendered in france. our attention was drawn by mr. vyas to article xiv(1) of the double taxation avoidance agreement between india and france which reads as under (see.....
Judgment:

1. These are applications of the Revenue under Section 256(2) of the Income-tax Act, 1961 ('the Act'). The facts and circumstances and the proposed question are identical in all these applications. In fact, the Income-tax Appellate Tribunal has disposed of all the applications under Section 256(1) by a common order. We have, therefore, taken up these applications for hearing together. The question of law proposed to be referred to this court for opinion is as under :

'Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that as per Article XIV of the Agreement for Avoidance of Double Taxation between India and France, the assessee was not liable to be taxed in respect of salary paid in France for the asses-see's stay in France without appreciating the fact that the contract for services between the assessee and Spie Capag is for the services rendered in India and payment is for services rendered in India which is the contracting state for the assessee ?'

2. We have heard Mr. R. V. Desai, learned counsel for the petitioners. We have also heard Mr. D. K. Vyas, learned counsel for the respondents. Mr, Vyas submitted that the proposed question is wrongly framed as it gives an impression that the services were rendered in India, whereas, there is a categorical finding of the Income-tax Appellate Tribunal ('the Tribunal'), to the effect that the services were rendered in France. Our attention was drawn by Mr. Vyas to Article XIV(1) of the Double Taxation Avoidance Agreement between India and France which reads as under (see [1970] 76 ITR (St.) 1, 6) :

'XIV. (1) Subject to the provisions of Article XII, salaries, wages or other similar remuneration for services as an employee performed in one of the contracting States by an individual who is a resident of the other contracting State may be taxed only in the contracting State in which such services are rendered.'

3. Reference was also made by learned counsel to Sub-section (2) of Section 90 of the Income-tax Act which provides that where the Central Government has entered into an agreement with the Government of any country outside India under Sub-section (1) for granting relief of tax, or, as the case may be, avoidance of double taxation, then, in relation to the assessee to whom such agreement applies, the provisions of this Act shall apply to the extent they are more beneficial to the assessee. It is submitted by Mr. Vyas that the proposed question does not arise out of the order of the Tribunal.

4. Otherwise also, it is contended that from the findings of the Tribunal the answer to the question is self-evident.

5. We have carefully considered the rival submissions and perused the order of the Tribunal. There is a clear finding of the Tribunal that the services were rendered in France. The Tribunal has categorically observed that it was never the case of the Revenue that the payments in question were for the services rendered in India. That being so, under Article XIV(1) of the Double Taxation Avoidance Agreement between India and France, the remuneration received by the employees for the services rendered in France cannot be subjected to tax in India.

6. In view of Article XIV(1) of the Double Taxation Avoidance Agreement, Sub-section (2) of Section 90 of the Act and the categorical finding of the Tribunal that the remuneration in question was for the services rendered in France, we are of the clear opinion that the proposed question is not a referable question of law.

7. These applications are, therefore, rejected and the rule is discharged.


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