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2017 (10) TMI 1253 - AT - Income TaxP.E. in India - whether the income earned by the assessee from operation of 15 ships was taxable or not in India in light of the above-mentioned provisions of the DTAA or not? - Held that:- Pre-condition, for claiming exemption from Indian tax law is to establish the fact that the income earned/accrued to an assessee had arisen from operation of ships in international traffic. The onus was on the assessee to prove the fact. Under Section 106 of the Evidence Act when any fact is especially within the knowledge of any person, the burden of proving the fact is upon him. In the case under consideration, fact of operation of ships in international traffic was specially within the knowledge of the assessee and it was not possible for the AG to have any knowledge about it. So, it was duty of the assessee to prove the factum of operation of ship for deduction. We have taken note of the fact that it had not produced any of the documents before the AO required by him. Even before the DRP it filed bills of lading for five ships. In case of one ship only copy of delivery note was submitted. Without commenting upon the evidentiary value of the documents produced by it, for claiming exemption from tax provisions of the Act, we would like to mention that it had not produced not even a single paper for nine ships that could prove that same were operating in international traffic. Before us also, the assessee had not produced any document to substantiate its claim. So as far as income from nine ships are concerned, we arc of the opinion that same should be taxed as per the provisions of Act. - Decided against assessee. Charging of interest u/s.234B - Held that:- DRP should have decided the issue raised by the assessee by a speaking order. But, that does not mean that we cannot decide it. It is a legal issue and has remained unadjudicated. It was brought to our notice that the Department had issued Double income Tax Relief Certificate to the assessee. Clearly the assessee was not liable to pay advance tax. Besides for freight income earned by it was liable for deduction of tax at source as per the provisions of section 209(1)(d) of the Act.
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