TMI Blog2007 (6) TMI 550X X X X Extracts X X X X X X X X Extracts X X X X ..... ances of the case, the Income tax Appellate Tribunal was right in law in upholding the Deputy Commissioner of Income tax (Appeals) order holding that the relief under the agreement for the avoidance of double taxation of income was available to the assessee and the salaries and perquisites received by the assessee were exempt under the Income Tax Act, 1961? In spite of service, none appeared f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 741) in our view, the contention of the respondents proceeds on the fallacious premise that liability to taxation is the same as payment of tax. Liability to tax is a legal situation; payment of tax is a fiscal fact. The court further takes into consideration the Model Tax Convention of 1992 and reproduces article 4.1 which reads as under (page 741): 'It seems clear that a person does no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2)(c) of the agreement. In fact, the Tribunal did observe on these lines but did not insist thereafter for applying the Austrian law when it observed that, if India was to give up its right to tax for the income earned in India, it had to be satisfied that the assessee was liable to pay tax in respect of that income in the foreign country with whom the agreement was concluded. In the circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er necessary evidence they may choose to place on record, and direct the Tribunal to decide the issue in accordance with law after taking into consideration further evidence that may be adduced by the parties. The reference stands disposed of accordingly. There shall be no order as to costs. Considering the view taken by this Court by following the decision of their Lordship in the case of Uni ..... X X X X Extracts X X X X X X X X Extracts X X X X
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