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2021 (12) TMI 995 - HC - Income TaxCertificate u/s 197 - Deduction of TDS are low rate or NIL rate - India Switzerland DTAA read with the protocol and Most Favoured Nation (“MFN”) clause - application of the Petitioner u/s 197 had been disposed of prescribing a rate of 10% on the dividends distributed by Cotecna Inspection India Private Limited (“CIIPL”) to the Petitioner as opposed to the applicable rate of 5% under the India-Switzerland Double Taxation Avoidance Agreement (“DTAA”) read with the MFN clause and the Amending Protocol to the DTAA - HELD THAT:- The issues raised in the present writ petition are no longer res integra, as they are fully covered by the judgments of this Court in Concentrix Services Netherlands B.V. [2021 (4) TMI 1051 - DELHI HIGH COURT] as well as in Nestle SA [2021 (4) TMI 1267 - DELHI HIGH COURT]. In Concentrix Services Netherlands B.V. (Supra) it has been held that no separate notification is required insofar as the applicability of the protocol is concerned and the same forms an integral part of the Convention. It is well settled law that the Department cannot refuse to follow binding jurisdictional decision merely on the basis that the Department proposes to file an appeal. The Supreme Court in UOI v. Kamlakshi Finance Corpn Ltd. [1991 (9) TMI 72 - SUPREME COURT] has held that order of higher appellate authorities should be followed ‘unreservedly’ and mere fact that decision is not acceptable to the Revenue cannot be a ground for not following the decision of higher authority. The impugned order and certificate are set aside and the respondent is directed to issue a certificate under Section 197 of the Act indicating therein that the rate of tax, on dividend, as applicable qua the Petitioner is 5% in India-Switzerland DTAA as held in Nestle SA (Supra) which was also under India-Switzerland DTAA.
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