Dy. Commissioner of Income Tax (International Taxation)-1, Ahmedabad V. M/s. Adani Wilmar Ltd., Ahmedabad

ITA 2264/AHD/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5924 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-03-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2016-2017
• Appeal Filed On: 01-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Recovery proceedings; Double taxation relief; TDS
• Section: 90; 206AA; 201(1); 195; 201; 20

Judgement Text

ITA NOS.2244, 2245, 2246, 2047, 2248, 2254, 2249, 2 250, 2251 2252, 2253, 2260, 2261, 2262, 2263, 2264 & 2265/AHD /2016 ASSESSMENT YEARS: 2016-17 PAGE 1 OF 6 IN THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD A BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR AM AND RAJPAL YADAV JM] ITA NOS.2244, 2245 & 2246/AHD/2016 ASSESSMENT YEARS: 2016-17 INCOME TAX OFFICER (INTERNATIONAL TAXATION)-I, AHMEDABAD. .....................APPELLANT VS. ADANI POWER LIMITED, ............... .. RESPONDENT SHIKHAR, NEAR ADANI HOUSE, MITHAKHALI SIX ROAD, NAVRANGPURA, AHMEDABAD 380 009. [PAN: AHMAO 1102 D] ITA NOS.2047, 2248 & 2254/AHD/2016 ASSESSMENT YEARS: 2016-17 INCOME TAX OFFICER (INTERNATIONAL TAXATION)-I, AHMEDABAD. .....................APPELLANT VS. ADANI POWER MAHARASHTRA LIMITED, ..... ............ RESPONDENT ADANI HOUSE, NR. MITHAKHALI SIX ROAD, NAVRANGPURA, AHMEDABAD 380 009. [PAN: AHMAO 7282 C] ITA NOS.2249, 2250 & 2251/AHD/2016 ASSESSMENT YEARS: 2016-17 INCOME TAX OFFICER (INTERNATIONAL TAXATION)-I, AHMEDABAD. .....................APPELLANT VS. ADANI BUNKERING PVT. LTD., ......... ........ RESPONDENT (FORMERLY KNOWN AS CHEMOIL ADANI P. LTD.), ADANI HOUSE, NR. MITHAKHALI SIX ROAD, NAVRANGPURA, AHMEDABAD 380 009. [PAN: AHMCO 2747 D] ITA NOS.2244, 2245, 2246, 2047, 2248, 2254, 2249, 2 250, 2251 2252, 2253, 2260, 2261, 2262, 2263, 2264 & 2265/AHD /2016 ASSESSMENT YEARS: 2016-17 PAGE 2 OF 6 ITA NOS.2252 & 2253/AHD/2016 ASSESSMENT YEARS: 2016-17 INCOME TAX OFFICER (INTERNATIONAL TAXATION)-I, AHMEDABAD. .....................APPELLANT VS. KARNVATI AVIATION PVT. LTD., ................. RESPONDENT ADANI HOUSE, NR. MITHAKHALI SIX ROAD, NAVRANGPURA, AHMEDABAD 380 009. [PAN: AADCG 0689 B] ITA NOS.2260, 2261 & 2262/AHD/2016 ASSESSMENT YEARS: 2016-17 DY. COMMISSIONER OF INCOME TAX (INTERNATIONAL TAXAT ION)-I, AHMEDABAD. .....................APPELLANT VS. ADANI PORT & SEZ LIMITED, ................. RESPONDENT GROUND FLOOR, ADANI HOUSE, NR. MITHAKHALI SIX ROAD, NAVRANGPURA, AHMEDABAD 380 009. [PAN: AAACG 7917 K] ITA NOS.2263, 2264 & 2265/AHD/2016 ASSESSMENT YEARS: 2016-17 DY. COMMISSIONER OF INCOME TAX (INTERNATIONAL TAXAT ION)-I, AHMEDABAD. .....................APPELLANT VS. ADANI WILMAR LIMITED, .... ............. RESPONDENT 2 ND FLOOR, NEAR FORTUNE HOUSE, NR. MITHAKHALI SIX ROAD, NAVRANGPURA, AHMEDABAD 380 009. [PAN: AABCA 8056OP] APPEARANCES BY SAURABH SINGH FOR THE APPELLANT P M MEHTA FOR THE RESPONDENT DATES OF HEARING OF THE APPEAL : MARCH 13, 2018 DATE OF PRONOUNCING THIS ORDER : MARCH 14, 2018 ITA NOS.2244, 2245, 2246, 2047, 2248, 2254, 2249, 2 250, 2251 2252, 2253, 2260, 2261, 2262, 2263, 2264 & 2265/AHD /2016 ASSESSMENT YEARS: 2016-17 PAGE 3 OF 6 O R D E R PER PRAMOD KUMAR, AM: 1. THE SHORT ISSUE THAT REQUIRES OUR ADJUDICATION I N THESE APPEALS IS WHETHER THE LEARNED CIT(A) WAS JUSTIFIED IN HOLDING THAT SECTION 206AA OF THE INCOME TAX ACT, 1961 DO NOT OVERRIDE THE PROVISIONS OF A DOUBLE TAXATION AVOIDANCE AGREE MENT ENTERED INTO BY THE GOVERNMENT OF INDIA UNDER SECTION 90 OF THE ACT. THE COMMON GRIEVANCES RAISED IN ALL THESE APPEALS ARE AS FOLLOWS: 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN COMING TO THE CONCLUSION THAT SEC.206AA OF INCOME TAX ACT DOES NO T OVERRIDE THE PROVISION OF SEC.90(2) OF THE ACT, DESPITE THE FACT THAT SEC.206 AA OF THE ACT STARTS WITH A NON- OBSTINATE CLAUSE ? 2. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN IGNORING THE MEMORANDUM EXPLAINING THE PROVISIONS OF THE FINANCE (NO.2) BILL, 2009 WHICH CLEARLY STATES THAT THE SEC.206AA OF INCOME TAX ACT APPLIES TO NON-RESIDENTS AND ALSO IGNORING THE PRESS RELEASE OF CBDT NO.402/92/2 006-MC (04 OF 2010) DATED 20.01.2010 WHICH REITERATES THAT SEC.206AA OF INCOM E TAX ACT WILL ALSO APPLY TO ALL NON-RESIDENTS IN RESPECT OF PAYMENTS/REMITTANCE S LIABLE TO TDS WHERE PAN IS NOT PROVIDED TO THE DEDUCTOR ? 3. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN RELYING UPON THE DECISIONS WHICH WERE RENDERED BEFORE THE INTRODUCTI ON OF SEC.206AA OF THE I.T. ACT ? 2. THE ISSUE IN APPEAL LIES IN A VERY NARROW COMPAS S OF MATERIAL FACTS. THE ASSESSEE HAS MADE VARIOUS PAYMENTS TO CERTAIN NON-RESIDENTS WHO DID N OT HAVE A PERMANENT ACCOUNT NUMBER (PAN) ISSUED BY THE INCOME TAX DEPARTMENT. THE TAX DEDUC TIONS AT SOURCE IN THESE CASES WAS MADE IN ACCORDANCE WITH THE PROVISIONS OF THE RESPECTIVE DO UBLE TAXATION AVOIDANCE AGREEMENT ENTERED INTO BY THE GOVERNMENT OF INDIA WITH THE COUNTRY OF WHICH THE RECIPIENTS WERE TAX RESIDENTS. HOWEVER, IN THE COURSE OF PROCESSING OF THE TDS RET URNS FILED BY THE ASSESSEE, SECTION 206AA WAS HELD TO BE APPLICABLE ON THE GROUND THAT THE RECIPI ENTS DID NOT HAVE THE PAN. ACCORDINGLY, DEMAND UNDER SECTION 201(1) WAS RAISED FOR SHORT DE DUCTION OF TAX AT SOURCE, AS ALSO A CONSEQUENTIAL DEMAND FOR INTEREST UNDER SECTION 201 (1A) ON ACCOUNT OF DELAY IN DEPOSITING TAX DEDUCTIBLE AT SOURCE. AGGRIEVED, ASSESSEE CARRIED T HE MATTER IN APPEAL BEFORE THE CIT(A). IN HIS WELL-REASONED ORDER, LEARNED CIT(A) REVERSED THE AC TION OF THE ASSESSING OFFICER AND OBSERVED AS FOLLOWS: 5. APPELLATE FINDINGS: I HAVE CONSIDERED THE FACTS OF THE CASE AND SUBMISS ION FILED BY THE APPELLANT CAREFULLY. THE AR SUBMITTED THE JUSTIFICATION REPOR T RECEIVED FROM CPC TDS WHICH SHOWS THAT THE DEMAND OF SHORT DEDUCTION HAS BEEN R AISED ON THE BASIS OF NON AVAILABILITY OF PAN IN ITD PAN MASTER DATA. DUE TO NON AVAILABILITY OF PAN, THE TAX RATE OF 20% AS PER SECTION 206AA HAS BEEN APPLIED. ITA NOS.2244, 2245, 2246, 2047, 2248, 2254, 2249, 2 250, 2251 2252, 2253, 2260, 2261, 2262, 2263, 2264 & 2265/AHD /2016 ASSESSMENT YEARS: 2016-17 PAGE 4 OF 6 AS PER THE FACTS OF THE CASE OF THE APPELLANT, THE PROVISIONS OF SECTION 90(2) OF THE ACT ARE THE BENEFICIAL PROVISIONS PROVIDED TO T HE TAX PAYERS AND ACCORDINGLY THE PROVISIONS OF ACT OR THE TREATY, WHICHEVER ARE MORE BENEFICIAL TO THE APPELLANT ARE APPLICABLE. FURTHER, IT IS SETTLED LEGAL POSITION THAT EVEN THOUGH THE SECTION 206AA BEGINS WITH THE OBSTINATE CLAUSE, STILL IT CAN IN N O CASE OVERRIDE THE PROVISIONS OF THE TREATY. THE AR ALSO MENTIONED THAT THE DEDUCTEES FR OM THE FOREIGN COUNTRIES HAVE OBTAINED TRC (TAX RESIDENCY CERTIFICATE) ON THE BAS IS OF WHICH TDS IS DEDUCTED AS PER TREATY RATE WHICH IS 10% IN APPELLANT'S CASE. IT IS ALSO NOTED THAT THE PROVISIONS OF SECTION 206 AA WHICH PROVIDES TO DEDUCT TDS AT A HIGHER RATE BECAUSE OF NON-AVAILABILITY OF PAN ARE NOT ATTRACTED HERE BECAUSE APPELLANT CANNOT COMPEL NON-RESIDENT TO OBT AIN PAN WHEN THEY ARE NOT LIABLE TO TAX IN INDIA. THE DECISIONS OF HON'BLE ITAT PUN E IN CASE OF DEPUTY DIRECTOR OF INCOME TAX VS. SERUM INSTITUTE OF INDIA LTD. [2 015] 56 TAXMANN.COM 1(PUNE TRIB.) AND HON'BLE ITAT BANGALORE IN CASE F DCTT VS. INFOS YS BPO LTD. [2015] 60 TAXMANN.COM 465 (BANGALORE - TRIB.) ALSO MAKE THE I SSUE IN QUESTION VERY CLEAR. IN BOTH THE CASES HON'BLE ITATS DECIDED THAT THE PROVI SION OF SECTION 206AA CANNOT BE INVOKED BY THE AO TO INSIST ON TAX DEDUCTION AT RAT E OF 20%, HAVING REGARD TO OVERRIDING NATURE OF PROVISIONS OF SECTION 90(2), WHERE TAX HAS BEEN DED UCTED IN RESPECT OF PAYMENTS MADE TO NON RESIDENTS WHO DO NOT FURNISH THEIR PAN ON ST RENGTH OF PROVISIONS OF DTAA. THE AR HAS GIVEN THE DETAIL OF THE CASES DECIDED BY THE SE ITATS IN HIS ABOVE QUOTED SUBMISSION. AS THE PROVISION OF TDS ARE TO BE READ ALONG WITH D TAA FOR COMPUTING THE TAX LIABILITY ON THE SUM IN QUESTION AND THEREFORE WHEN THE RECIPIENT IS ELIGIBLE FOR THE BENEFIT OF DTAA, THERE IS NO SCOPE FOR DEDUCTION OF TAX AT SOURCE @ 20% AS PROVIDED UNDER THE PROVISIONS OF SECTION 206AA. IN VIEW OF T HE FACTS OF THE CASE OF THE APPELLANT AND LEGAL POSITION, THE ADDITION ON THE GROUND OF S HORT DEDUCTION OF TDS APPLYING THE PROVISIONS OF SECTION 206AA IS NOT CORRECT. THE AO IS DIRECTED TO DELETE THE DEMAND RAISED ON THE BASIS OF APPLICATION OF SECTION 206AA . HE IS ALSO DIRECTED TO DELETE THE INTEREST WHICH IS CONSEQUENTIAL TO THE DEMAND OF SH ORT DEDUCTION. ACCORDINGLY, ALL GROUNDS OF APPEAL ARE ALLOWED. 3. THE ASSESSING OFFICER IS AGGRIEVED AND IS IN APP EAL BEFORE US. 4. LEARNED REPRESENTATIVES FAIRLY AGREE THAT THE IS SUE IN APPEAL IS NOW COVERED, IN FAVOUR OF THE ASSESSEE, BY A LARGE NUMBER OF JUDICIAL PRECEDE NTS IN FAVOUR OF THE ASSESSEE, EVEN THOUGH LEARNED DEPARTMENTAL REPRESENTATIVE HAS, NEVERTHELE SS, RELIED UPON THE STAND TAKEN IN THE GROUNDS OF APPEAL. LEARNED COUNSEL FOR THE ASSESSEE ALSO IN VITES OUR ATTENTION TO A RATHER RECENT JUDGMENT OF HONBLE DELHI HIGH COURT IN THE CASE OF DANSICO INDIA PVT. LTD. VS. UNION OF INDIA & ORS [JUDGMENT DATED 5 TH FEBRUARY 2018 IN WP(C) 5908 OF 2015], AND SUBMITS THAT, AS IS ELEMENTARY, THE PROVISIONS OF A DTAA OVERRIDE THE P ROVISIONS OF THE INCOME TAX ACT -EXCEPT TO THE EXTENT SUCH STATUTORY PROVISIONS ARE MORE BENEF ICIAL TO THE ASSESSEE. IN EFFECT, THUS, IN A SITUATION COVERED BY THE PROVISIONS OF THE DTAA, TH E STATUTORY PROVISIONS OF THE INCOME TAX ACT ITA NOS.2244, 2245, 2246, 2047, 2248, 2254, 2249, 2 250, 2251 2252, 2253, 2260, 2261, 2262, 2263, 2264 & 2265/AHD /2016 ASSESSMENT YEARS: 2016-17 PAGE 5 OF 6 CAN NEVER BE PUT AGAINST THE ASSESSEE. WE HAVE HEAR D THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION. 5. WE FIND THAT, IN THE CASE OF DDIT VS SERUM INSTITUTE OF INDIA PVT. LTD. [(2015) 40 ITR TRIB 684 (PUNE)], A COORDINATE BENCH OF THE TRIBUNAL HAS, INTER ALIA , OBSERVED AS FOLLOWS: 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. SECTION 206AA OF THE ACT HAS BEEN INCLUDED IN PART B OF CHAPTER XVII DEALING WITH COL LECTION AND RECOVERY OF TAX DEDUCTION AT SOURCE. SECTION 206AA OF THE ACT DEALS WITH REQUIRE MENTS OF FURNISHING PAN BY ANY PERSON, ENTITLED TO RECEIVE ANY SUM OR INCOME ON WHICH TAX IS DEDUCTIBLE UNDER CHAPTER XVII-B, TO THE PERSON RESPONSIBLE FOR DEDUCTING SUCH TAX. SHORN OF OTHER DETAILS, IN SO FAR AS THE PRESENT CONTROVERSY IS CONCERNED, IT WOULD SUFFICE TO NOTE THAT SECTION 206AA OF THE ACT PRESCRIBES THAT WHERE PAN IS NOT FURNISHED TO THE PERSON RESPONSIBL E FOR DEDUCTING TAX AT SOURCE THEN THE TAX DEDUCTOR WOULD BE REQUIRED TO DEDUCT TAX AT THE HIG HER OF THE FOLLOWING RATES, NAMELY, AT THE RATE PRESCRIBED IN THE RELEVANT PROVISIONS OF THIS ACT; OR AT THE RATE/RATES IN FORCE; OR AT THE RATE OF 20%. IN THE PRESENT CASE, ASSESSEE WAS RESPONSIBLE FOR DEDUCTING TAX ON PAYMENTS MADE TO NON- RESIDENTS ON ACCOUNT OF ROYALTY AND/OR FEE FOR TECH NICAL SERVICES. THE DISPUTE BEFORE US RELATES TO THE PAYMENTS MADE BY THE ASSESSEE TO SUCH NON-RESID ENTS WHO HAD NOT FURNISHED THEIR PANS TO THE ASSESSEE. THE CASE OF THE REVENUE IS THAT IN TH E ABSENCE OF FURNISHING OF PAN, ASSESSEE WAS UNDER AN OBLIGATION TO DEDUCT TAX @ 20% FOLLOWING T HE PROVISIONS OF SECTION 206AA OF THE ACT. HOWEVER, ASSESSEE HAD DEDUCTED THE TAX AT SOURCE AT THE RATES PRESCRIBED IN THE RESPECTIVE DTAAS BETWEEN INDIA AND THE RELEVANT COUNTRY OF THE NON-RESIDENTS; AND, SUCH RATE OF TAX BEING LOWER THAN THE RATE OF 20% MANDATED BY SECTION 206A A OF THE ACT. THE CIT(A) HAS FOUND THAT THE PROVISIONS OF SECTION 90(2) COME TO THE RESCUE OF THE ASSESSEE. SECTION 90(2) PROVIDES THAT THE PROVISIONS OF THE DTAAS WOULD OVERRIDE THE PROVISIO NS OF THE DOMESTIC ACT IN CASES WHERE THE PROVISIONS OF DTAAS ARE MORE BENEFICIAL TO THE ASSE SSEE. THERE CANNOT BE ANY DOUBT TO THE PROPOSITION THAT IN CASE OF NON-RESIDENTS, TAX LIAB ILITY IN INDIA IS LIABLE TO BE DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OR THE DT AA BETWEEN INDIA AND THE RELEVANT COUNTRY, WHICHEVER IS MORE BENEFICIAL TO THE ASSESSEE, HAVIN G REGARD TO THE PROVISIONS OF SECTION 90(2) OF THE ACT. IN THIS CONTEXT, THE CIT(A) HAS CORRECTLY OBSERVED THAT THE HONBLE SUPREME COURT IN THE CASE OF AZADI BACHAO ANDOLAN AND OTHERS VS. UOI , (2003) 263 ITR 706 (SC) HAS UPHELD THE PROPOSITION THAT THE PROVISIONS MADE IN THE DTAAS W ILL PREVAIL OVER THE GENERAL PROVISIONS CONTAINED IN THE ACT TO THE EXTENT THEY ARE BENEFIC IAL TO THE ASSESSEE. IN THIS CONTEXT, IT WOULD BE WORTHWHILE TO OBSERVE THAT THE DTAAS ENTERED INTO B ETWEEN INDIA AND THE OTHER RELEVANT COUNTRIES IN THE PRESENT CONTEXT PROVIDE FOR SCOPE OF TAXATION AND/OR A RATE OF TAXATION WHICH WAS DIFFERENT FROM THE SCOPE/RATE PRESCRIBED UNDER THE ACT. FOR THE SAID REASON, ASSESSEE DEDUCTED THE TAX AT SOURCE HAVING REGARD TO THE PRO VISIONS OF THE RESPECTIVE DTAAS WHICH PROVIDED FOR A BENEFICIAL RATE OF TAXATION. IT WOUL D ALSO BE RELEVANT TO OBSERVE THAT EVEN THE CHARGING SECTION 4 AS WELL AS SECTION 5 OF THE ACT WHICH DEALS WITH THE PRINCIPLE OF ASCERTAINMENT OF TOTAL INCOME UNDER THE ACT ARE ALSO SUBORDINATE TO THE PRINCIPLE ENSHRINED IN SECTION 90(2) AS HELD BY THE HONBLE SUPREME COURT IN THE CASE OF AZ ADI BACHAO ANDOLAN AND OTHERS (SUPRA). THUS, IN SO FAR AS THE APPLICABILITY OF THE SCOPE/R ATE OF TAXATION WITH RESPECT TO THE IMPUGNED PAYMENTS MAKE TO THE NON-RESIDENTS IS CONCERNED, NO FAULT CAN BE FOUND WITH THE RATE OF TAXATION INVOKED BY THE ASSESSEE BASED ON THE DTAAS, WHICH P RESCRIBED FOR A BENEFICIAL RATE OF TAXATION. HOWEVER, THE CASE OF THE REVENUE IS THAT THE TAX DE DUCTION AT SOURCE WAS REQUIRED TO BE MADE AT 20% IN THE ABSENCE OF FURNISHING OF PAN BY THE RECI PIENT NON-RESIDENTS, HAVING REGARD TO SECTION 206AA OF THE ACT. IN OUR CONSIDERED OPINION , IT WOULD BE QUITE INCORRECT TO SAY THAT THOUGH THE CHARGING SECTION 4 OF THE ACT AND SECTIO N 5 OF THE ACT DEALING WITH ASCERTAINMENT OF TOTAL INCOME ARE SUBORDINATE TO THE PRINCIPLE ENSHR INED IN SECTION 90(2) OF THE ACT BUT THE PROVISIONS OF CHAPTER XVII-B GOVERNING TAX DEDUCTIO N AT SOURCE ARE NOT SUBORDINATE TO SECTION 90(2) OF THE ACT. NOTABLY, SECTION 206AA OF THE ACT WHICH IS THE CENTRE OF CONTROVERSY BEFORE US IS NOT A CHARGING SECTION BUT IS A PART OF A PROCED URAL PROVISIONS DEALING WITH COLLECTION AND DEDUCTION OF TAX AT SOURCE. THE PROVISIONS OF SECTI ON 195 OF THE ACT WHICH CASTS A DUTY ON THE ITA NOS.2244, 2245, 2246, 2047, 2248, 2254, 2249, 2 250, 2251 2252, 2253, 2260, 2261, 2262, 2263, 2264 & 2265/AHD /2016 ASSESSMENT YEARS: 2016-17 PAGE 6 OF 6 ASSESSEE TO DEDUCT TAX AT SOURCE ON PAYMENTS TO A N ON-RESIDENT CANNOT BE LOOKED UPON AS A CHARGING PROVISION. IN-FACT, IN THE CONTEXT OF SECT ION 195 OF THE ACT ALSO, THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. ELI LILY & CO., (2009) 312 ITR 225 (SC) OBSERVED THAT THE PROVISIONS OF TAX WITHHOLDING I.E. SECTION 195 OF T HE ACT WOULD APPLY ONLY TO SUMS WHICH ARE OTHERWISE CHARGEABLE TO TAX UNDER THE ACT. THE HON BLE SUPREME COURT IN THE CASE OF GE INDIA TECHNOLOGY CENTRE PVT. LTD. VS. CIT, (2010) 327 ITR 456 (SC) HELD THAT THE PROVISIONS OF DTAAS ALONG WITH THE SECTIONS 4, 5, 9, 90 & 91 OF T HE ACT ARE RELEVANT WHILE APPLYING THE PROVISIONS OF TAX DEDUCTION AT SOURCE. THEREFORE, I N VIEW OF THE AFORESAID SCHEMATIC INTERPRETATION OF THE ACT, SECTION 206AA OF THE ACT CANNOT BE UNDERSTOOD TO OVERRIDE THE CHARGING SECTIONS 4 AND 5 OF THE ACT. THUS, WHERE S ECTION 90(2) OF THE ACT PROVIDES THAT DTAAS OVERRIDE DOMESTIC LAW IN CASES WHERE THE PROVISIONS OF DTAAS ARE MORE BENEFICIAL TO THE ASSESSEE AND THE SAME ALSO OVERRIDES THE CHARGING S ECTIONS 4 AND 5 OF THE ACT WHICH, IN TURN, OVERRIDE THE DTAAS PROVISIONS ESPECIALLY SECTION 20 6AA OF THE ACT WHICH IS THE CONTROVERSY BEFORE US. THEREFORE, IN OUR VIEW, WHERE THE TAX HA S BEEN DEDUCTED ON THE STRENGTH OF THE BENEFICIAL PROVISIONS OF SECTION DTAAS, THE PROVISI ONS OF SECTION 206AA OF THE ACT CANNOT BE INVOKED BY THE ASSESSING OFFICER TO INSIST ON THE T AX DEDUCTION @ 20%, HAVING REGARD TO THE OVERRIDING NATURE OF THE PROVISIONS OF SECTION 90(2 ) OF THE ACT. THE CIT(A), IN OUR VIEW, CORRECTLY INFERRED THAT SECTION 206AA OF THE ACT DO ES NOT OVERRIDE THE PROVISIONS OF SECTION 90(2) OF THE ACT AND THAT IN THE IMPUGNED CASES OF PAYMEN TS MADE TO NON-RESIDENTS, ASSESSEE CORRECTLY APPLIED THE RATE OF TAX PRESCRIBED UNDER THE DTAAS AND NOT AS PER SECTION 206AA OF THE ACT BECAUSE THE PROVISIONS OF THE DTAAS WAS MORE BENEFI CIAL. THUS, WE HEREBY AFFIRM THE ULTIMATE CONCLUSION OF THE CIT(A) IN DELETING THE TAX DEMAND RELATABLE TO DIFFERENCE BETWEEN 20% AND THE ACTUAL TAX RATE ON WHICH TAX WAS DEDUCTED BY TH E ASSESSEE IN TERMS OF THE RELEVANT DTAAS. AS A CONSEQUENCE, REVENUE FAILS IN ITS APPEALS. 6. THE VIEWS SO EXPRESSED BY THE COORDINATE BENCH N OW STAND APPROVED BY HONBLE DELHI HIGH COURTS JUDGMENT IN THE CASE OF DANSICO INDIA PVT. LTD. (SUPRA). NO JUDICIAL PRECEDENT TO THE CONTRARY HAS BEEN BROUGHT TO OUR NOTICE. IN THIS V IEW OF THE MATTER, AND RESPECTFULLY FOLLOWING THE BINDING JUDICIAL PRECEDENTS, WE APPROVE THE CONCLUS IONS ARRIVED AT BY THE CIT(A) AND DECLINE TO INTERFERE IN THE MATTER. 7. IN THE RESULT, THE APPEALS ARE DISMISSED. PRONO UNCED IN THE OPEN COURT TODAY ON THE 14 TH DAY OF MARCH, 2018. SD/- SD/- RAJPAL YADAV PRAMOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) AHMEDABAD, DATED THE 14 TH DAY OF MARCH, 2018 COPIES TO: (1) THE APPELLANT (2) THE RESPOND ENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD