Delhi High Court - Orders
M/S Nestle Sa vs Assessing Officer ... on 15 March, 2021
Author: Rajiv Shakdher
Bench: Rajiv Shakdher, Talwant Singh
$~22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3243/2021
M/S NESTLE SA .....Petitioner
Through: Mr. Porus Kaka, Sr. Advocate with
Mr. Prakash Kumar and Mr. Divesh Chawla,
Advocates.
versus
ASSESSING OFFICER CIRCLE(INTERNATIONAL TAXATION)-
2(2)(2),NEW DELHI .....Respondent
Through: Mr. Deepak Anand, Sr. Standing
Counsel with Mr. Vipul Agarwal, Jr. Standing
Counsel.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
HON'BLE MR. JUSTICE TALWANT SINGH
ORDER
% 15.03.2021 CM APPL. 9884/2021
1. Allowed, subject to just exceptions. W.P.(C) 3243/2021
2. Via this writ petition, a challenge is laid to a certificate dated 04.01.2021, issued by the revenue, under Section 197 of the Income Tax Act, 1961 [in short "the Act"].
3. Briefly, the grievance of the petitioner is that the certificate sets down a rate of 10% qua withholding tax whereas the certificate should have indicated a rate of 5%.
W.P.(C) 3243/2021 page 1 of 3 Signature Not Verified Digitally Signed By:VIPIN KUMAR RAI Signing Date:18.03.2021 11:42:14 3.1. Mr. Porus Kaka, who appears on behalf of the petitioner, says that the petitioner is entitled to claim the benefit of a lower tax rate in view of the provisions contained in the protocol appended to the India- Switzerland DTAA.
4. Pithily put, according to the petitioner, the withholding tax ought to be collected at the lower rate since the India- Switzerland DTAA allows for such parity with the rate stipulated in another DTAA arrived at between India and another country as long that other country is a member of the OECD.
4.1 In the instant case, the petitioner seeks to take advantage of the lower rate of tax provided in the DTAA executed between India and Lithuania as Lithuania is a member of the OECD.
5. Mr. Deepak Anand, who appears on advance notice, on behalf of the revenue, says that the revenue has recorded its reasons in order dated 11.03.2021.
5.1 Concededly, this order has not been served on the petitioner/assessee.
6. Prima facie, we are of the view that the order dated 11.03.2021 cannot sustain the impugned certificate dated 04.01.2021 as it was passed after the said certificate was issued.
6.1 Given the fact that Mr. Anand appears on advance notice, we are inclined to grant an opportunity to the respondent/revenue to file a counter- affidavit in the matter.
6.2 Accordingly, issue notice. Mr. Anand accepts service on behalf of the respondent/revenue.
W.P.(C) 3243/2021 page 2 of 3 Signature Not Verified Digitally Signed By:VIPIN KUMAR RAI Signing Date:18.03.2021 11:42:14
7. Counter-affidavit will be filed within ten days. Rejoinder thereto, if any, will be filed before the next date of hearing.
8. List the matter on 26.04.2021.
9. In the meanwhile, Mr. Anand will ensure that a copy of the order dated 11.03.2021 is served on the counsel for the petitioner/assessee. Service will be affected via e-mail within two days.
10. Liberty is also given to the petitioner/assessee to amend the writ petition, if deemed necessary.
RAJIV SHAKDHER, J TALWANT SINGH, J MARCH 15, 2021 tr Click here to check corrigendum, if any W.P.(C) 3243/2021 page 3 of 3 Signature Not Verified Digitally Signed By:VIPIN KUMAR RAI Signing Date:18.03.2021 11:42:14