Case Law Details
Tata Teleservices Limited Vs CIT (Delhi High Court)
Learned counsel for the petitioner states that the disputed demand has arisen on account of the failure of the petitioner to deduct tax at source on the interest payments made to China Development Bank (hereinafter referred to as ‘CDB’), which as per the petitioner was a bank wholly owned by the Government of China. He submits that as per article 11(3) of India-China Double Taxation Avoidance Agreement (DTAA), any interest income which arises in India and is payable to a financial institution wholly owned by the Government of China, would be exempt from tax in India. He states that therefore the petitioner was acting in accordance with the said DTAA when it did not make deductions towards withholding tax while making interest payments to CDB in the assessment year 2016-17.
We have heard the parties and we find force in the submissions of the counsel for the respondents that this Court cannot at this stage cannot arrive at any conclusion, prima facie or otherwise with respect to ownership of the CDB, which will be determined in the present appeal after due consideration of the documents relied upon by both the parties. The respondents do not admit the inference of ownership drawn by the petitioner on the basis of the documents placed on record by the petitioner being the annual reports of the CDB. The ownership of the CDB being a disputed question of fact cannot be decided by this Court and it cannot be a matter of prima facie determination as it is the material fact to be determined in the appeal filed by the petitioner.
The observations made by the Court in in GE Capital Mauritius Overseas Investments v. Deputy Commissioner of Income Tax and Another reported in 2021 SCC OnLine Del 2784 though were in the context of Section 241A of the Act which was challenged by the petitioner therein in the writ proceedings would also be attracted in the facts of the present case wherein the petitioner seeks a prima facie determination of its claims on merits from this Court. With respect to the plea of hardship, it is noted from the petitioner’s standalone statement of profit & loss that its earnings before interest, tax, depreciation and amortisation for the year ended 31st March, 2021 is Rs. 330.76 crores. It is further noted that the revenue from operations of the petitioner for the same year stand at Rs. 1604.66 crores. So also the current assets of the petitioner are reported as Rs. 4,930.34 crores. With respect to the contention of the petitioner as regards brought forward losses of Rs. 9,671.83 crores as reported in its ITR for AY 2021-22, it is noted that out of the same, Rs. 7167 crores have been set off in the AY 2021-22. The petitioner has not suffered any operational losses in the relevant financial year. In these circumstances, the plea of hardship as raised by the petitioner is not made out.
FULL TEXT OF THE JUDGMENT/ORDER OF DELHI HIGH COURT
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