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2017 (11) TMI 452 - ITAT MUMBAIBenefit of Article 8 of DTAA between India and Germany - present assessee is a Foreign company engaged in the business of operation of ships internationally - whether the portion of freight income earned by the assessee in the course of its business of transportation of cargo to ports outside India and vice versa, to the extent the same is attributable to feeder vessels which were neither owned, chartered or leased by the assessee, would also fall within the sweep of Article 8 of DTAA - PE in India - Held that:- We have perused the orders and find ourselves to be in agreement with the view taken by the Tribunal in the aforesaid preceding years in the case of the assessee. We thus, finding no reason to take a different view, thus, are of the considered view that the benefits of Article 8 of the DTAA between India and Germany would also be available to the assessee in respect of the revenue earned from the feeder vessels obtained by the assessee by slot hire arrangements. The Grounds of appeal No. 2 to 4 raised by the assessee before us are allowed. As we have concluded that the benefit of Article 8 of the India–Germany DTAA would also be available to the assessee in respect of the revenue earned by it from the feeder vessels obtained on slot hire arrangements, therefore, the Grounds of appeal Nos. 5 to 7 pertaining to the validity of the order of the A.O as regards including the service tax in the freight income for computing the income of the assessee under Sec. 44B would be rendered infructuous. We thus in terms of our aforesaid observations dismiss the Grounds of appeal No. 5 to 7 raised by the assessee before us. We are further of the view that as we have held that the the benefit of Article 8 of the India–Germany DTAA would also be available to the assessee in respect of the revenue earned by it from the feeder vessels obtained on slot hire arrangements, therefore, the Grounds of appeal Nos. 8 to 10 as to whether the assessee had an agency PE in India are also rendered academic and we thus refrain from adjudicating the same. The Grounds of appeal No. 8 to 10 are dismissed in terms of our aforesaid observations. Interest levied on the assessee under Sec. 234B - Held that:- We find that the issue is covered in favour of the assessee by the decision of the Hon’ble High Court of Bombay in the case of DDIT(IT) Vs. NGC Network Asia LLC (2009 (1) TMI 174 - BOMBAY HIGH COURT), wherein it has been held that interest under Sec. 234B would not be applicable to a non-resident assessee
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