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TMI Blog2018 (4) TMI 1936X X X X Extracts X X X X X X X X Extracts X X X X ..... hether the Ld. CIT(A) is correct in law and on facts in holding that the recipients are entitled to the benefit of treaty without deciding first whether the recipients satisfied conditions of the treaty and can be treated as resident of respective countries as per the DTAA. 2. Without prejudice to the above, (i) whether the Ld. CIT(A) was right in law and on facts in coming to the conclusion that Section 206AA of the Act, does not override the provision of section of Section 90(2) of the Act, despite the fact that Sec.206AA starts with a non- obstante clause. (ii) whether the Ld. CIT(A) has erred in law and on facts of the case in ignoring the memorandum explaining the provision of the Finance (No.2) Bill, 2009 which clearly states ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We have heard the rival contentions, perused the material on record and duly considered facts of the case in the light of the applicable legal position. 4. We find that, in the case of DDIT Vs Serum Institute of India Pvt. Ltd. [(2015) 40 ITR Trib 684 (Pune)], a coordinate bench of the Tribunal has, inter alia, observed as follows: "7. We have carefully considered the rival submissions. Section 206AA of the Act has been included in Part B of Chapter XVII dealing with Collection and Recovery of Tax - Deduction at source. Section 206AA of the Act deals with requirements of furnishing PAN by any person, entitled to receive any sum or income on which tax is deductible under Chapter XVII-B, to the person responsible for deducting such tax. Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-residents, tax liability in India is liable to be determined in accordance with the provisions of the Act or the DTAA between India and the relevant country, whichever is more beneficial to the assessee, having regard to the provisions of section 90(2) of the Act. In this context, the CIT(A) has correctly observed that the Hon'ble Supreme Court in the case of Azadi Bachao Andolan and Others vs. UOI, (2003) 263 ITR 706 (SC) has upheld the proposition that the provisions made in the DTAAs will prevail over the general provisions contained in the Act to the extent they are beneficial to the assessee. In this context, it would be worthwhile to observe that the DTAAs entered into between India and the other relevant countries in the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tably, section 206AA of the Act which is the centre of controversy before us is not a charging section but is a part of a procedural provisions dealing with collection and deduction of tax at source. The provisions of section 195 of the Act which casts a duty on the assessee to deduct tax at source on payments to a non-resident cannot be looked upon as a charging provision. In-fact, in the context of section 195 of the Act also, the Hon'ble Supreme Court in the case of CIT vs. Eli Lily & Co., (2009) 312 ITR 225 (SC) observed that the provisions of tax withholding i.e. section 195 of the Act would apply only to sums which are otherwise chargeable to tax under the Act. The Hon'ble Supreme Court in the case of GE India Technology Centre Pvt. L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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