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1 - 10 of 15 (0.36 seconds)Article 5 in Constitution of India [Constitution]
The Income Tax Act, 1961
M/S Dit (International Taxation), ... vs M/S Morgan Stanley & Co. Inc on 9 July, 2007
22. The learned Counsel further analysed the remarks and the
observations given by the Assessing Officer as well as the Commissioner
(Appeals), specifically with regard to their conclusion on dependent agency
P.E., as given in Article-5(4) vis-à-vis assessee's facts. He furnished a
statement showing the rate of commission received from various VGCs in
support of the contentions that none of the clauses or conditions
mentioned in Article 5(5) stand fulfill in assessee's case and, therefore, the
assessee cannot be said to be P.E. of various VGCs in India. He also
referred to the judgment of the Hon'ble Supreme Court in Morgan Stanley
and Co. Inc. (supra), in support of the contention that there cannot be an
agency P.E. in India if the P.E. has no authority to enter into or conclude
contracts on behalf of foreign enterprise. Regarding application of "Force of
Attraction Rule", as given in Article-7(1) of Indo-U.S. DTAA and similar
provisions in Australia and Italy DTAA, he submitted that none of the pre-
requisite conditions spelt out in Article-7(1) stand fulfilled as the assessee
does not constitute P.E. in India of the VGCs and secondly, the product
sold by the assessee and the VGCs are different. Further, he submitted
that assessee's case is also supported by the provisions of section 9(1)(i)
r/w Explanation i.e., the non-residence in India, which in the present case
are VGCs, in case of business of which all the operations are not carried
out in India are taxable in India, only on such part of income as is
reasonably attributable to the operations carried out in India. In the
present case, the assessee has duly offered its income in view of the
provisions of section 9(1)(i).
Commissioner Of Income Tax, Meerut And ... vs Hyundai Heavy Industries Co. Ltd on 18 May, 2007
39. In assessee's case, there is another important fact that the assessee
is showing the entire income as is reasonably attributable to the
operations carried out in India. Section 9(1)(i) r/w Explanation thereto
provides that non-resident in India in the case of business of which all the
operations are not carried out in India are taxable in India only on such
part of the income as is reasonable attributable to the operations carried
out in India. It is not disputed in this case that the Assessee is showing its
income which is attributable to its operation in India and is subject to tax
on such income. This proposition forms support from the judgment of
Hon'ble Supreme Court in Hyundai Heavy Industries Co. Ltd. (supra),
wherein the Hon'ble Supreme Court observed and held as under:-
Commissioner Of Income-Tax vs Shrimati Shingari Bai on 23 February, 1945
1. CIT v/s Shrimati Singari Bai, [1945] 13 ITR 224 (All.);