TMI Blog1996 (2) TMI 559X X X X Extracts X X X X X X X X Extracts X X X X ..... en per cent. of the shares of certain other companies in India. The Agreement for Avoidance of Double Taxation and Prevention of Fiscal Evasion (DTAA) with respect to taxes on income and on capital gains between the Government of the Republic of India and the Government of the United Arab Emirates, which came into force on September 22, 1993, makes a provision for the avoidance of double taxation in respect of dividends paid, by a company in one of the two countries, to a recipient in the other country. This provision, in so far as it is relevant for our purpose, reads as under (see [1994] 205 ITR (St.) 57) : Article 10 Dividends: (1) Dividends paid by a company which is a resident of a Contracting State to a resident of the oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no company law or law regarding corporations in the UAE, and the applicant is only a trade name for an individual XYZ who owns the business of the applicant and that since this individual was resident in India in the financial year 1994-95 within the meaning of section 6(1)(a) of the Act, this application is not maintainable as a ruling under Chapter XIX-B of the Act can be sought for only by non-residents. The first question that arises for consideration is, therefore, whether the applicant is a company or an individual. If the applicant is treated as a company within the meaning of the Act, then its control and management being entirely located in the UAE, it will be a non-resident company and hence entitled to maintain an applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia for that financial year, if his stay in India during that period was for 182 days or more. The applicant has furnished the dates of its physical presence in India during the above financial year. The details are as follows: STAY IN INDIA DURING THE FINANCIAL YEAR 1994-95 Sl. No. Entry Exit No. of days 1. 01-04-1994 07-04-1994 7 2. 15-04-1994 16-04-1994 2 3. 21-04-1994 24-04-1994 4 4. 05-05-1994 11-0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11-01-1995 17-01-1995 7 21. 31-01-1995 04-02-1995 5 22. 24-02-1995 18-03-1995 23 23. 29-03-1995 31-03-1995 3 Total 198 According to this statement, the applicant had been in India for more than 182 days in the financial year 1994-95. He was, therefore, resident and not a non-resident during that financial year. Counsel for the applicant, appearing on behalf of the applicant, how-ever, contended that the number ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 12. 28-10-1994 03-11-1994 6 13. 05-11-1994 11-11-1994 6 14. 17-11-1994 22-11-1994 5 15. 26-11-1994 05-12-1994 9 16. 09-12-1994 13-12-1994 4 17. 14-12-1994 19-12-1994 5 18. 21-12-1994 04-01-1995 14 19. 05-01-1995 11- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms impractical but, assuming that this is a correct argument, no data have been furnished on the basis of which the stay of the applicant in India in terms of hours could be worked out. Yet another method might be to assume that out of the 23 days of exit in the first computation set out earlier, the applicant was in India for half the number of such days and outside India for the other half. Even if a calculation is made on that basis, the total number of days of the presence of the applicant in India would work out to more than 182 days. Moreover, it will be seen that if the applicant s reasoning is carried further, it should apply with equal force to the dates of entry in, as well as exit from, India and it could perhaps be argued with e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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