TMI Blog2009 (7) TMI 1289X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 39,100 for the year under consideration. The return was processed u/s 143(1) by the Assessing Officer. Notice u/s 143(2) was issued to the assessee to submit the details in respect of the returned income. The assessee in response to the notice submitted detailed reply to the Assessing Officer. It was submitted that the assessee is a company incorporated in Mauritius holding the Tax Residence certificate of Mauritius. It was incorporated with the purpose of carrying on business of dealing and making investment in shares and securities etc. for the purpose of doing business in India. The assessee made investment in Indian capital market and derived income in the form of short term/long term capital gains. According to the assessee the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under: 6. I have carefully examined the facts of the case along with submissions made on behalf of the appellant and have reached to the following conclusions: 6.1 It is a matter of record that Assessing Officer had taxed the capital gains earned by appellant at ₹ 18,77,453 in India following the order of his predecessor for A.Y. 2000-01. The order of the predecessor of the Assessing Officer for assessment year 2000-01 was confirmed by my predecessor wherein he has upheld the finding of the Assessing Officer that appellant was liable for capital gain tax in India. However, the assessee filed appeal against the order of my predecessor before ITAT wherein Hon'ble ITAT vide order dated 20th July, 2007 as reported in 16 SOT 535 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the Hon'ble Delhi High Court in the case of Shiva Jha vs. Azadi Bachao Andolan has been reversed by the Hon'ble Supreme Court in the case of UOI vs. Azadi Bachao Andolan, 236 ITR 706 (SC) wherein it has been held by the Apex court that the circular no.789 dated 13.4.2000 providing that FIIs, etc. which are resident of Mauritius would not be taxable in India on income from capital gins arising by sale of shares is valid and efficacious. It has also been held that the double taxation agreement between India and Mauritius is valid in law and an attempt by resident of third party to take advantage of existing provision of DTAC is not illegal. After that judgment of the Apex court, the said circular No.768 of CBDT is binding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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