(ii) If the Tribunal has answered an issue and that has not been challenged by the revenue, it will not be open to the revenue to raise the said issue again in respect of the same assessee;
(iii) The judgement of the Supreme Court in Ishikawajima-Harima Heavy Industries vs. DIT 288 ITR 408 (SC) has been overcome by the Explanation to s. 9 inserted by the FA 2007 which provides that income from royalty paid by a resident would be deemed to accrue in India even if the recipient has no PE;
(iv) The meaning of the term “laws in force” in the DTAA means that by a unilateral amendment it is not possible for one nation to tax income which otherwise was not subject to tax. However, the expression would not only include a tax already covered by the Treaty but would also include any other tax as taxes of a substantially similar character subsequent to the date of the agreement. It is not possible to accept the proposition that the law would be the law as was applicable or as defined when the D.T.A.A. was entered into;
(v) The rule of referential incorporation cannot be applied in dealing with a DTAA between two Sovereign Nations. Though it is open to a Sovereign Legislature to amend its Laws, a DTAA entered into by the Government have to be reasonably construed;
(vi) Under the old India-Germany DTAA, royalty other than royalty for mine, quarries, etc., constitute “industrial or commercial profits” and are not taxable under Article III(1) in the absence of a permanent establishment of the enterprise in India.
