2013 (1) TMI 399

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... on the facts and in the circumstances of the case and in law was the Tribunal correct in holding that the respondent can be considered to be a tax resident of Germany? (b)  Whether on the facts and in the circumstances of the case and in law the Tribunal was correct in holding that no interest was chargeable u/s 234B of the Act? 3. Brief Facts: (a)  The respondent-assessee being a Non-Resident (Foreign Company) filed its return of income for the Assessment year 2002-03 declaring an income of Rs.3.35 crores. The respondent-assessee in its Return of Income had claimed benefit of Article 12(2) of the Agreement between India & Germany for the Avoidance of Double Taxation with respect to taxes on Income and Capital (DTAA) in respec .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... assessee is limited partnership and cannot be considered to be a taxable unit in Germany for the purposes of the DTAA. In support of the aforesaid submission reliance is placed upon the order dated 28.03.2005 of the Assessing Officer wherein on the basis of OECD publication the Assessing Officer has held that limited partnership in Germany are not liable to tax. Therefore, he submits that the benefit of DTAA including Article 12(2) thereof cannot be extended to the respondent-assessee. 5. As against the above, Mr. Irani for the respondent-assessee points out that the respondent-assessee is a taxable entity under the German Law as is evident from the certificate dated 18.03.2005 issued by the German Authorities. Further, in terms of Article .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... Article 12(2) thereof cannot be denied. We do not find merit in the submission of the Revenue that the respondent-assessee cannot be considered as a taxable entity in view of the OECD commentary. This is for the reason that entire issue is governed by the DTAA and on the basis of evidence led before the authorities. In these circumstances, it is not open to deny the benefit of the DTAA on the basis of the OECD commentary. 7. In view of the above, we find no reason to entertain the question of law at (a) above. 8. In so far as question (b) is concerned it is agreed between the Advocates for the appellant and the respondent that the issue is covered in favour of the assessee by the decision of this court in the matter of Director of Income .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X