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2013 (1) TMI 399 - BOMBAY HIGH COURTWhether a respondent- assessee can be considered to be a tax resident of Germany? - Held that:- Respondent-assessee is receiving royalty and fees for technical services rendered in India & as Article 12 of DTAA, royalty and fees for technical services received in India by a person resident outside India are not liable to tax in India in excess of 10% of the gross amount received. On examination term 'resident' in terms of Article 4 of the DTAA means "any person who, under the laws of Germany is liable to tax therein by reason of his domicile, residence, place of management or any criterion of a similar nature". Thus both the CIT(A) and the Tribunal has on examination of records found that respondent-assessee is filing Trade Tax Return in Germany and therefore is paying tax to which the DTAA applies. Further, the Tax Resident Certificate dated 18.03.2005 issued by German Authorities evidences the fact that the respondent-assessee is considered as a taxable unit under the taxation laws of Germany. Therefore, the DTAA is applicable to the respondent-assessee and the benefit of Article 12(2) thereof cannot be denied - it is not open to deny the benefit of the DTAA on the basis of the OECD commentary - in favour of assessee. Interest chargeable u/s 234B - Held that:- The issue is covered in favour of the assessee as Director of Income Tax (International Taxation) v/s. NGC Network Asia LLC [2009 (1) TMI 174 - BOMBAY HIGH COURT] wherein held that when a duty is cast on the payer to pay the tax at source, on failure, no interest can be imposed on the payee-assessee - in favour of assessee.
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