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2023 (2) TMI 904 - ITAT DELHIRate of TDS on payment to non resident - Non-availability of PAN of non resident - payments in the nature of fees for technical services - provisions of section 90(2) read with DTAA overrides the provision of section 206AA or not? - Whether assessee is liable for deduction of tax at higher rate for want of Permanent Account Number of the concerned non-resident payees as per the provisions of section 206A? - HELD THAT:- There is no dispute to the fact that all the payments were made to the non resident of the countries with whom there are DTAA agreement by India. There is no dispute to the fact that the assessee had applied rate at lower level while the AO had applied higher rates as per Act considering appellant to be assessee in default. The order of the CIT(A) shows that the judgment of Danisco India Pvt. Ltd Vs. UOI [2018 (2) TMI 1289 - DELHI HIGH COURT] wherein case of Dy. CIT Vs. Serum Institute of India [2015 (6) TMI 26 - ITAT PUNE] Further without a wording of discussion to distinguish the legal proposition on facts or law, CIT(A) had failed to follow the same. This leaves no doubt in the mind of this bench that the ld Tax Authorities below have fallen in error in not extending the benefits of section 90(2) - DR could not point out the provisions of the Act or DTAA to support the observations of CIT(A). The matter of fact remains that what were the rates of taxation under DTAA are not coming up from the matter before this bench therefore, the issue requires to be restored to the files of Ld. AO to take into consideration the rate of the DTAA and recalculate the tax demand considering difference between the rate applied by the Ld. AO and the rates on which tax deducted by the assessee in terms of the relevant DTAA. As far as the claim of refund is concerned there is no force in the submissions of the ld DR that claim is being raised belated as order of the CIT(A) shows that rectification petition u/s 154 was filed by the assessee wherein, the request for refund of the excess TDS deducted was made and being aggrieved by non rectification and non-refund of the tax deposited appeal was filed. This issue is also subject to the determination of tax rates as directed to be recalculated.
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