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2014 (11) TMI 686 - AT - Income TaxExistence of a Permanent Establishment – Article 7 of the DTAA with France - Held that:- The assessee is a non resident company - Return of income for the year was filed on 30.10.2001 - The assessee claimed exemption under Article 9 of the Double Taxation Avoidance Agreement with France - The claim of the assessee was examined by the AO vide its order dt. 30.3.2004 - there are no findings by the AO or the Dispute Resolution Panel to the effect that the transactions between the agent and the assessee are not at an arm's length price which is sine qua non in view of the provisions of Article 5(6) of Indo French DTAA - the Tribunal had proceeded on presumption - the Tribunal is also a fact finding authority - the initial onus is upon the Revenue to show that the transactions are not at arm's length price, this aspect has not been looked upon by the Revenue authorities, the matter is remitted back to the AO for examination as to whether the transactions between the agent and the assessee are at arm's length price and decide the issue afresh in the light of the provisions of Article 5(6) of Indo French DTAA – Decided in favour of assessee. Levy of interest under section 234B – Held that:- In DIT Vs NGC Network Asia LLC 2009 (1) TMI 174 - BOMBAY HIGH COURT] wherein it has been held that when a duty was cast on the payer to deduct the tax at source, on failure of the payer to do so, no interest could be imposed on the assessee - the AO is directed to delete the interest levied u/s. 234B of the Act.
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