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2017 (8) TMI 289 - HC - Income TaxTaxability in India - Entitlement to the benefits of the Agreement between the Government of Mauritius and the Government of the Republic of India - avoidance of double taxation and prevention of fiscal evasion (the ‘India Mauritius tax treaty') - taxes on income and capital gains - Held that:- In the present case, the Respondent has placed reliance on the Double Taxation Avoidance Agreement between India and Mauritius. It is clear from the said Agreement that the capital gains from alienation of the shares situated in India could only be taxed in Mauritius and not in India. The Apex Court in a case of Azadi Bachao Andolan & Anr.(2003 (10) TMI 5 - SUPREME Courta) has clearly observed that the terms and provisions of the Agreement i.e. DTAA shall operate even if they are inconsistent with the provisions of the Income Tax Act. The Petitioner could have relied on Section 9(1)(i) and Explanation 5 if the present case would have not been covered by the DTAA. Though the question of limitation/delay/laches would not be inconsequential we refrain from going into said aspect as we have decided this Petition on merits itself. On perusal of the Judgment of the AAR, it transpires that the AAR has considered all the relevant aspects of the matter and has arrived at the just conclusion. The Treaty has also been rightly considered.
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