Search Results For: Article 9


Shell Global Solutions International BV vs. DDIT (ITAT Ahmedabad)

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DATE: November 17, 2016 (Date of pronouncement)
DATE: November 26, 2016 (Date of publication)
AY: 2007-08
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CITATION:
Interplay between Article 9 of the DTAA and Transfer Pricing law in the Act explained. While Article 9 is an enabling provision, the TP mechanism under the domestic law is the machinery provision. There is no occasion to read Article 9 as confined to enabling ALP adjustment in respect of only domestic entities. The mere fact that the OECD Commentary etc give examples related to economic double taxation situations does not imply that the Article 9 (1) cannot be applied to other situations

Once it is not in dispute that the arms length standards are, therefore, to be applied in computation of taxable profits, as is specific mandate of article 9, it is only axiomatic that the manner in which arm’s length standards are to be applied is something which has not been defined by the treaties and the mechanism provided under the domestic law, therefore, must hold good. Article 9(1) does not, and cannot, provide the basis of the ALP adjustments as tax treaties restrict application of domestic law of taxation rather than create independent rights of taxation. Article 9(1) is thus, in a way, an enabling provision, and the TP mechanism under the domestic law is the machinery provision. The provisions of article 9(1) permit ALP adjustment in all situations in which the arm’s length standards require higher profits in the hands of any “one of the enterprises, but by reason of those conditions, have not so accrued” to be “included in the profits of that enterprise and taxed accordingly”. The provisions are clear and unambiguous. There is no occasion to read this provision as confined to enabling ALP adjustment in respect of only domestic entities

P & O Nedlloyd Ltd. & Ors vs. ADIT (Calcutta High Court)

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DATE: November 7, 2014 (Date of pronouncement)
DATE: November 11, 2014 (Date of publication)
AY: 1997-98
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CITATION:
Though a firm is not a "person" under UK law, it is so under the Indian law. Consequently, the firm is eligible for exemption under the India-UK DTAA. The department's contention that the firm is not eligible for benefits under the DTAA is not acceptable

(i) It is the other objection regarding attempt on the part of the Revenue to subject the said partnership to taxation on the ground its income was not saved from the charge of income tax by the India-UK Treaty, that

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