TMI Blog2019 (2) TMI 1644X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to Section 9(1)(vi) cannot result in a change. It is imperative that such amendment is brought about in the agreement as well. Any attempt short of this, even if it is evidence of the State s discomfort at letting data broadcast revenues slip by, will be insufficient to persuade this Court to hold that such amendments are applicable to the DTAAs. When the definitions were in fact pari materia (in the absence of any contouring explanations), will continue to hold the field for the purpose of assessment years preceding the Finance Act, 2012 and in all cases which involve a Double Tax Avoidance Agreement, unless the said DTAAs are amended jointly by both parties to incorporate income from data transmission services as partaking of the na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16.odt provisions under the DTAA as also held by Madras High Court in case of Poompuhar Shipping 360 ITR 257 and Verizon Communication Singapore Pte ITR 575 (Mad.)? (c) Whether on facts and circumstances of the case and in law, the Tribunal erred in relying upon the decision of Hon'ble Delhi High Court in case of payee i.e. New Skies Satellites NV, Netherlands to hold that the amount was not taxable under the treaty in hands of payee, without appreciating that the said decision of Delhi High Court had not considered the principles of updating construction, as enunciated by apex court in case of Podar cements 226 ITR 625 (SC)? . 2 Though three separate questions are framed by the Revenue, issue is single namely - W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cific category of services or payments within the ambit of a definition alludes not to an attempt to illuminate or clarify a perceived ambiguity or obscurity as to interpretation of the definition itself, but towards enlarging its scope. Predicated upon this, the retrospectivity of the amendment could well be a contentious issue. Be that as it may, this Court is disinclined to conclusively determine or record a finding as to whether the amendment to 9(1)(vi) is indeed merely clarificatory as the Revenue suggests it is, or prospective, given what its nature may truly be. The issue of taxability of the income of the assesses in this case may be resolved without redressal of the above question purely because the assessee has not pressed this l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive that such amendment is brought about in the agreement as well. Any attempt short of this, even if it is evidence of the State's discomfort at letting data broadcast revenue slip by, will be insufficient to persuade this Court to hold that such amendments are applicable to the DTAAs. In the said decision, Delhi High Court had also referred and relied upon the decision of this Court in the case of CIT v/s. Siemens Aktiongesellschaft reported in 310 ITR 320, in which it was held that, mere amendment of the Act, would not over-ride the provisions of DTAA treaties . 6 In view of such detailed consideration by the Delhi High Court in the case of New Skies Satellite BV (supra), which is the foreign based company to whom the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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