Case Law Details
Case Name : Amarchand & Mangaldas & Suresh A Shroff & Co Vs ACIT (ITAT Mumbai)
Appeal Number : ITA No. 2613/Mum/19
Date of Judgement/Order : 18/12/2020
Related Assessment Year : 2014-15
Courts :
All ITAT ITAT Mumbai
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Amarchand & Mangaldas & Suresh A Shroff & Co Vs ACIT (ITAT Mumbai)
The short issue that we are required to adjudicate in this appeal is whether or not the authorities below were justified in declining tax credit under article 23(2) of India Japan Double Taxati Please become a Premium member. If you are already a Premium member, login here to access the full content.
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OFFhand
EXCERPts:
Q
………..
On the subject uniformity of interpretation in the treaty partner jurisdictions, Lord Denning, in the case of Corocraft, said:
“If such be the view of the American Courts, we surely should take the same view. This convention should be given the same meaning throughout all the countries who were parties to it” (1 Q.B. 616). The importance of uniformity of interpretation of expressions which are used in global treaty networks can thus hardly be overemphasized. As was said in the Federal Court in Canadian Pacific Ltd. v. Queen 76 DTC 6120 at p. 6135) in interpreting the 1942 Canada-US Treaty, “While it is true that this Court has the right to interpret the Canada-US Tax Convention and Protocol itself and is no way bound by the interpretation given to it by the United States Treasury, THE RESULT WOULD BE UNFORTUNATE IF IT WERE INTERPRETED DIFFERENTLY IN THE TWO COUNTRIES WHEN THIS WOULD LEAD TO DOUBLE TAXATION. Unless, therefore, it can be concluded that the different conclusion, and I find no compelling reason for doing so.” That situation is to be best avoided, and it can only be so avoided when unless the view of the treaty partner jurisdiction is wholly unreasonable or, to borrow the words of Canadian Federal Court, “manifestly erroneous,” it should be adopted, at least in respect of that transaction, by the other treaty partner as well. ….. UQ
(Para. 10)
The view the Tribunal has taken, by any logic or sound reasoning, rightly so, is in sync with the general pattern and basic objective with which DTAAs are being concluded between two countries. Further, that is the view which might be prudently expected to be eventually upheld even if the matter were to be been taken on for resolution by resort to the ‘Mutual Agreement Procedure’ (MAP)
Moreover, prima facie , some of the aspects dealt with in the landmark Judgment of the SC (India) and the grounds of the decision in re. Azadi Bachao Andolan # could be of every relevance (direct as well as indirect) for supporting the ITAT’s Order in the instant case as the only right and sensibly sustainable view especially from a practical viewpoint.
RESOURCE (on ‘MAP’as Updated) https://www.incometaxindia.gov.in/Documents/MAP-GUIDANCE-7th-August-2020.pdf
# UOI and Anr. v Azadi Bachao Andolan and Anr. (citation -263 ITR 706 (SC) )
Article (critique) Titled “CASE LAW ON TAX TRATIES – NUANCES OF”-
(2007) 295 ITR pg. 17