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2017 (9) TMI 1154 - ITAT DELHISalaries paid by the Head Office overseas in foreign currency to the expatriates working in India - Permanent establishment (‘PE’) of the Appellant in India - Held that:- This issue is covered in favour of assessee by the Delhi High Court order in own case [2016 (4) TMI 817 - DELHI HIGH COURT] relying on decision of ABN Amro Bank(2010 (12) TMI 340 - CALCUTTA HIGH COURT ). Applicability of Section 115JB - Held that:- This issue is covered in favour of assessee by the Delhi High Court order in own case [2016 (4) TMI 817 - DELHI HIGH COURT] concluding that the Assessee’s claim for lower tax will have to be accepted because Section 115JB is subject to Section 90(2) of the Act and the taxable income of the Assessee would have to be computed in terms of Article 7(3) of the DTAA. What is significant is that the profit and loss account of the Assessee has not been prepared in terms of Part II of Schedule VI of the Companies Act, 1956 and in fact could not have been prepared in terms thereof. Consequently, the question of applicability of Section 115JB did not arise. As rightly pointed out till the insertion of Section 115JB, banking companies were required to prepare their accounts in terms of special acts that they were governed by, and therefore there were no computation provisions as regards such banking companies. The change brought out by Section 115JB was therefore not retrospective. Applicability of rate of tax - Held that:- We find that this issue is covered against the assessee by Explanation 1 to section 90(2), which read as under:- “Explanation 1.-For the removal of doubts, it is hereby declared that the charge of tax in respect of a foreign company at a rate higher than the rate at which a domestic company is chargeable, shall not be regarded as less favourable charge or levy of tax in respect of such foreign company.”
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