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2015 (4) TMI 1284 - AT - Income TaxIncome accrued in India - Permanent Establishment in India under Article 5 of the DTAA between India and Switzerland - transfer of debt securities assessable as capital gain OR business income - HELD THAT:- We have gone through the order of the lower authorities as well as the order of the Tribunal in the case of LG Asian Plus Ltd. [2011 (5) TMI 371 - ITAT, MUMBAI] . We have also gone through the order of the Mumbai Bench of the Tribunal placed by the ld. AR on record, wherein the Tribunal relying on the decision in the case of LG Asian Plus Ltd. (supra) has decided the very same issue while deciding the case of Platinum Investment Management Ltd [2012 (12) TMI 1057 - ITAT MUMBAI] - Taxability of capital gains on sale of government securities would be governed by Article 13 of the Treaty. Articles 13(1) to 13(5) of the Treaty deal with taxability of capital gains on transfer of specified properties, which do not cover government securities. According to Article 13(6) of the Treaty, gains from allenation of any property other than that referred to in Articles 13(1) to 13(5) shall be taxable only in the contracting state of which allenaior is resident. Therefore, hold that appellant's income by way of capital gains on transfer of government securities would be exempt for tax in India under Article 13(6) of the Treaty. No infirmity in the findings recorded by the CIT(A) in holding that the gain arising from transactions in debt securities amounting is assessable as capital gains and not as business income. Charging of interest u/s.234B & 234C - HELD THAT:- We found that since the alleged income was liable to tax deduction at source u/s.195, therefore, there was no liability to pay advance tax u/s.208 of the Act and in the absence of any liability to pay advance tax, the provisions of Section 234B&234C could not be invoked. The CIT(A) has rightly directed to delete the interest levied u/s.234B&234C, in which our interference is uncalled for. Accordingly, we do not find any infirmity in the findings of the CIT(A).
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