ITO (International Taxation)-1, Ahmedabad V. Adani Bunkaering Pvt. Ltd (Formerly Known as Chem Oil Adani Pvt Ltd), Ahmedabad

ITA 2702/AHD/2017

• Counselvise Citation: [2019] 114 COUNSELVISE.COM (IT) 2191 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 11 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-11-2019
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 23-10-2019
• Assessment Year: misc
• Appeal Filed On: 01-12-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: BIREN SHAH
• Keywords: Recovery proceedings; Double taxation relief; TDS; Set aside
• Section: 206AA; 195; 90

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./ ITA NO.2702/AHD/2017 / ASSTT. YEAR: 2016-17 ITO (INTERNATIONAL TAXATION)-1 ASHRAM ROAD AHMEDABAD. VS. ADANI BUNKERING P.LTD. (FORMERLY KNOWN AS CHEM OIL ADANI P. LTD) NR. ADANI HOUSE NR.MITHAKHALI SIX ROAD NAVRANGPURA AHMEDABAD 380 009 PAN : AADCC 3765G/ AHMCO 2747D / (APPELLANT) / (RESPONDENT) REVENUE BY : SHRI VINOD TANWANI, SR.DR ASSESSEE BY : SHRI BIREN SHAH, AR ! / DATE OF HEARING : 23/10/2019 '#$ ! / DATE OF PRONOUNCEMENT: 19/11/2019 %& / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: BY THIS APPEAL, REVENUE IS CHALLENGING ORDER OF THE LD.CIT(A)-8, AHMEDABAD DATED 1.9.2017 PASSED FOR TH E ASSTT.YEAR 2016-17, BY WHICH THE LD.CIT(A) HAS CANCELLED ORDER OF THE ASSESSING OFFICER PASSED UNDER SECTION 200A(1) OF T HE INCOME TAX ACT, 1961. ITA NO.2702/AHD/2017 2 2. THE GROUNDS TAKEN BY THE ASSESSEE IN ITS APPEAL ARE AS UNDER: 1. WHETHER THE LD.CIT(A) IS CORRECT IN LAW AND ON FACTS IN HOLDING THAT THE RECIPIENTS ARE ENTITLED TO THE BEN EFIT OF TREATY WITHOUT DECIDING FIRST WHETHER THE RECIPIENT S SATISFIED CONDITIONS OF THE TREATY AND CAN BE TREATED AS RESI DENT OF RESPECTIVE COUNTRIES AS PER THE DTAA. 2. WITHOUT PREJUDICE TO THE ABOVE, (I) WHETHER THE LD.CIT(A) WAS RIGHT IN LAW AN D ON FACTS IN COMING TO THE CONCLUSION THAT SECTION 206AA OF THE ACT, DOES NOT OVERRIDE THE PROVISION OF SECTION OF SECTION 90 (2) OF THE ACT, DESPITE THE FACT THAT SEC.206AA STARTS WITH A NON- OBSTANTE CLAUSE. (II) WHETHER THE LD.CIT(A) HAS ERRED IN LAW A ND ON FACTS OF THE CASE IN IGNORING THE MEMORANDUM EXPLAINING T HE PROVISION OF THE FINANCE (NO.2) BILL, 2009 WHICH CLE ARLY STATES THAT THE SEC.206AA OF INCOME TAX ACT APPLIES TO NON - RESIDENTS AND ALSO IGNORING THE ..PRESS RELEASE OF CBDT NO.402/92/2006-MC (04 OF 2010) DATED 20/1/2010 WHIC H REITERATES THAT SEC.206AA OF INCOME TAX ACT WILL AL SO APPLY TO ALL NON-RESIDENTS IN RESPECT OF PAYMENTS/REMITTA NCE LIABLE TO TDS WHERE PAN IS NOT PROVIDE TO THE DEDUCTOR ? (III) WHETHER THE LD.CIT(A) HAS ERRED IN LAW A ND ON FACTS OF THE CASE IN RELYING UPON THE DECISION WHICH WERE RENDERED BEFORE THE INTRODUCTION OF SEC.206AA OF THE IT. ACT ? 3. ANY OTHER GROUNDS THAT MAY BE URGED AT TH E TIME OF HEARING. 3. FROM READING OF THE ABOVE GROUNDS, SOLE ISSUE SE T OUT IN THIS APPEAL IS, WHETHER THE ASSESSEE CAN BE HELD LIABLE TO DEDUCT TDS AT HIGHER OF THE RATES PRESCRIBED IN SECTION 206AA IN CASE PAYMENTS MADE TO NON-RESIDENT PERSON ON FAILURE TO FURNISH PERMANENT ACCOUNT NUMBER OF THE DEDUCTEE. ITA NO.2702/AHD/2017 3 4. BRIEF FACTS OF THE CASE, AS EMERGES OUT FROM STAT EMENT OF FACTS FILED BY THE REVENUE ARE THAT DURING THE QUAR TER-4 IN F.Y.2015-16 RELEVANT TO THE ASSTT.YEAR 2016-17, THE ASSESSEE HAD MADE PAYMENTS TO NON-RESIDENTS AFTER DEDUCTING TDS AT 10% INSTEAD OF STIPULATED RATE OF 20%. THE ASSESSEE HA D ELECTRONICALLY FILED RELATED QUARTER RETURN IN FORM NO.27Q IN RESP ECT OF SUCH PAYMENTS. WHILE PROCESSING THESE TDS RETURNS, DCIT (TDS), CPC, GHAZIABAD NOTICED THAT THESE NON-RESIDENTS DID NOT FURNISH PAN, AND THEREFORE, THE ASSESSEE WAS REQUIRED TO DEDUCT THE TAX AT HIGHER RATE OF 20% AS PROVIDED UNDER SECTION 206AA OF THE ACT. THE CPC HAS RAISED DEMAND FOR SHORT DEDUCTION, WHIC H WAS CHALLENGED BEFORE THE LD.FIRST APPELLATE AUTHORITY. THE LD.CIT(A) FOLLOWING ORDER OF HIS PREDECESSOR PASSED IN THE CA SE OF ASSESSEE IN ORDER NO.292/15-16 DATED 9.6.2016 DIRECTED THE A O TO DELETE THE DEMAND AND CONSEQUENTIAL INTEREST FOR SHORT DED UCTION, AND THUS ALLOWED APPEAL OF THE ASSESSEE. REVENUE IS NO W CHALLENGING ORDER OF THE LD.CIT(A) BEFORE THE TRIBUNAL. 5. BEFORE US, THE REVENUE HAS FILED STATEMENT OF FAC TS PLEADING INTER ALIA THAT ORDER OF THE LD.CIT(A) IS NOT ACCEPTABLE BECA USE AS PER SECTION 206AA HIGHER TDS AT 20% WOULD BE ATTRAC TED ON PAYMENTS MADE TO NON-RESIDENTS ON ACCOUNT OF ROYAL TY/FTS IF THE PERSON RECEIVING THE INCOME OR SUM ON WHICH TAX IS DEDUCTABLE DOES NOT FURNISH HIS PAN. IT IS PLEADED THAT THE L D.CIT(A) FAILED TO CONSIDER THAT THE PROVISIONS OF SECTION 206AA WOULD PREVAIL OVER OTHER PROVISIONS OF THE ACT INCLUDING SECTION 90(2) OF THE ACT, AS THE SAID PROVISIONS STARTS WITH NON-OBSTINATE CLAUS E. THE LD.CIT(A) HAS ALSO FAILED TO CONSIDER CIRCULAR NO.2009 WHICH EXPLAINS NON- OBSTINATE NATURE OF THE PROVISION. IT IS FURTHER PL EADED THAT THE ASSESSEE IS REQUIRED TO OBTAIN PAN OF THE NON-RESID ENTS, AND ITA NO.2702/AHD/2017 4 FAILURE TO DO SO, THE ASSESSEE IS REQUIRED TO DEDUC T TDS AT THE HIGHER RATE PRESCRIBED UNDER SECTION 206A I.E. 20%. THE LD.CIT(A) HAS NOT APPRECIATED THIS LEGAL ASPECT, AND BY RELYI NG ON THE ORDER OF HIS PREDECESSOR ALLOWED CLAIM OF THE ASSESSEE. HIS ORDER IS NOT ACCEPTABLE, AND THE SAME DESERVES TO BE SET ASIDE. 6. ON THE OTHER HAND, THE LD.COUNSEL FOR THE ASSESS EE DEFENDED ORDER OF THE LD.CIT(A). HE SUBMITTED THAT IT IS SE TTLED BY VARIOUS IN AUTHORITATIVE JUDGMENTS THAT SECTION 90(2) OF TH E ACT IS A BENEFICIAL PROVISION PROVIDED TO THE TAX PAYERS, AN D THEREFORE, THE PROVISIONS OF THE ACT OR TREATY, WHICHEVER BENEFICI AL TO THE ASSESSEE IS APPLICABLE. IN THE INSTANT CASE, THE L D.CIT(A) HAS APPRECIATED THE POSITION OF LAW, AND RIGHTLY RELIED ON THE ORDER OF HIS PREDECESSOR WHO RELYING ON THE ORDER ITAT, PUNE IN THE CASE OF DCIT VS. SERUM INSTITUTE OF INDIA LTD., 56 TAXMANN. COM WHEREIN IT HAS HELD THAT SECTION 206AA OF THE INCOME-TAX ACT, 1961 WOULD NOT OVERRIDE PROVISIONS OF A DTAA TO THE EXTENT THA T THE LATTER IS MORE BENEFICIAL TO AN ASSESSEE. THE LD.COUNSEL FOR THE ASSESSEE ALSO RELIED ON THE ORDER OF ITAT, AHMEDABAD BENCH IN THE CASE OF ADANI POWER LTD. AND OTHERS VS. ITO (INTERNATIONAL TAXATION) IN ITA NO.2244/AHD/2016 AND OTHERS TO HOLD THAT SECTIO N 206A HAS NO OVERRIDING EFFECT OVER SECTION 90(2) AND THAT TH E ASSESSEE HAS CORRECTLY APPLIED THE RATE OF TAX PRESCRIBED UNDER THE TREATY AND NOT AS PER THE SECTION 206AA OF THE ACT, BECAUSE TH E RATE PRESCRIBED UNDER THE TREATY IS MORE BENEFICIAL TO T HE ASSESSEE. HE PLACED ON RECORD COPY OF THE ABOVE ORDER. 7. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND GONE TH ROUGH THE RECORD CAREFULLY. THE ISSUE BEFORE US IS, WHETHER THE PROVISIONS OF THE TREATY TO THE EXTENT THEY ARE BENEFICIAL TO THE ASSESSEE WILL ITA NO.2702/AHD/2017 5 OVERRIDE SECTION 206AA BY VIRTUE OF SECTION 90(2) O F THE INCOME TAX ACT OR NOT. WE ARE OF THE VIEW THAT WE NEED NO T DELVE MORE INTO THE LEGAL ASPECT, AS THE ISSUE HAS BEEN DECIDE D IN VARIOUS BENCHES OF ITAT AND SOME OF THEM HAVE ALSO BEEN APP ROVED BY THE HONBLE HIGH COURT. THE ITAT, AHMEDABAD BENCH ES IN THE CASE OF ITO VS. ADANI POWER LTD. AND OTHERS (SUPRA) HAS DECIDED SIMILAR ISSUE, AND AFTER DETAILED DISCUSSION AND CO NSIDERATION OF VARIOUS JUDICIAL PRONOUNCEMENT TO THE PROPOSITION T HAT PROVISIONS OF THE TREATY TO THE EXTENT THEY ARE BENEFICIAL TO THE ASSESSEE WILL OVERRIDE SECTION 206AA BY VIRTUE OF SECTION 90(2), CONFIRMED THE CONCLUSION ARRIVED BY THE LD.CIT(A) IN ALLOWING CLA IM OF THE ASSESSEE. FOR THE SAKE OF BREVITY, WE WOULD LIKE T O REPRODUCE RELEVANT PART OF THE ORDER AS HEREUNDER: 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 PRECEDENTS IN FAVOUR OF THE ASSESSEE, EVEN THOUGH L EARNED DEPARTMENTAL REPRESENTATIVE HAS, NEVERTHELESS, RELI ED UPON THE STAND TAKEN IN THE GROUNDS OF APPEAL. LEARNED COUNS EL FOR THE ASSESSEE ALSO INVITES OUR ATTENTION TO A RATHER REC ENT JUDGMENT OF HON'BLE DELHI HIGH COURT IN THE CASE OF DANSICO IND IA PVT. LTD. VS. UNION OF INDIA & ORS [JUDGMENT DATED 5TH FEBRUARY 2018 I N WP(C) 5908 OF 2015], AND SUBMITS THAT, AS IS ELEMENTARY, THE PRO VISIONS OF A DTAA OVERRIDE THE PROVISIONS OF THE INCOME TAX ACT -EXCEPT TO THE EXTENT SUCH STATUTORY PROVISIONS ARE MORE BENEFICIA L TO THE ASSESSEE. IN EFFECT, THUS, IN A SITUATION COVERED BY THE PROV ISIONS OF THE DTAA, THE STATUTORY PROVISIONS OF THE INCOME TAX ACT CAN NEVER BE PUT AGAINST THE ASSESSEE. WE HAVE HEARD THE RIVAL CONTE NTIONS, 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 INSTIT UTE OF INDIA PVT. LTD. [(2015) 40 ITR TRIB 684 (PUNE)], A COORDINATE BENCH O F THE TRIBUNAL HAS, INTER ALIA, OBSERVED AS FOLLOWS: 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSION S. SECTION 206AA OF THE ACT HAS BEEN INCLUDED IN PART B OF CHAPT ER XVII DEALING WITH COLLECTION AND RECOVERY OF TAX - DEDUCTION AT SOURCE. SECTION 206AA OF THE ACT DEALS WITH REQUIREMENTS OF FURNISHIN G PAN BY ANY PERSON, ENTITLED TO RECEIVE ANY SUM OR INCOME ON WH ICH TAX IS ITA NO.2702/AHD/2017 6 DEDUCTIBLE UNDER CHAPTER XVII-B, TO THE PERSON RESP ONSIBLE FOR DEDUCTING SUCH TAX. SHORN OF OTHER DETAILS, IN SO F AR AS THE PRESENT CONTROVERSY IS CONCERNED, IT WOULD SUFFICE TO NOTE THAT SECTION 206AA OF THE ACT PRESCRIBES THAT WHERE PAN IS NOT FURNISH ED TO THE PERSON RESPONSIBLE FOR DEDUCTING TAX AT SOURCE THEN THE TA X DEDUCTOR WOULD BE REQUIRED TO DEDUCT TAX AT THE HIGHER OF THE FOLL OWING RATES, NAMELY, AT THE RATE PRESCRIBED IN THE RELEVANT PROV ISIONS 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 TECHNICAL SERVICES. THE DISPUTE BEFORE US RELATES TO THE PAYM ENTS MADE BY THE ASSESSEE TO SUCH NON-RESIDENTS WHO HAD NOT FURNISHE D 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 THE PROVISIONS OF SECTION 206AA OF THE AC T. HOWEVER, ASSESSEE HAD DEDUCTED THE TAX AT SOURCE AT THE RATE S PRESCRIBED IN THE RESPECTIVE DTAAS BETWEEN INDIA AND THE RELEVANT COUNTRY OF THE NON-RESIDENTS; AND, SUCH RATE OF TAX BEING LOWER TH AN THE RATE OF 20% MANDATED BY SECTION 206AA OF THE ACT. THE CIT(A) HA S FOUND THAT THE PROVISIONS OF SECTION 90(2) COME TO THE RESC UE OF THE ASSESSEE. SECTION 90(2) PROVIDES THAT THE PROVISIONS OF THE DTAAS WOULD OVERRIDE THE PROVISIONS OF THE DOMESTIC ACT I N 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 LIABILITY IN INDIA IS LIABLE TO BE DETERMINED I N ACCORDANCE WITH THE PROVISIONS OF THE ACT OR THE DTAA BETWEEN INDIA AND THE RELEVANT COUNTRY, WHICHEVER IS MORE BENEFICIAL TO THE ASSESS EE, HAVING REGARD TO THE PROVISIONS OF SECTION 90(2) OF THE ACT. IN THI S CONTEXT, THE CIT(A) HAS CORRECTLY OBSERVED THAT THE HON'BLE SUPR EME COURT IN THE CASE OF AZADI BACHAO ANDOLAN AND OTHERS VS. UOI , (2003) 263 ITR 706 (SC) HAS UPHELD THE PROPOSITION THAT THE PROVISION S MADE IN THE DTAAS WILL PREVAIL OVER THE GENERAL PROVISIONS CONT AINED IN THE ACT TO THE EXTENT THEY ARE BENEFICIAL TO THE ASSESSEE. IN THIS CONTEXT, IT WOULD BE WORTHWHILE TO OBSERVE THAT THE DTAAS ENTER ED INTO BETWEEN INDIA AND THE OTHER RELEVANT COUNTRIES IN THE PRESE NT CONTEXT PROVIDE FOR SCOPE OF TAXATION AND/OR A RATE OF TAXATION WHI CH WAS DIFFERENT FROM THE SCOPE/RATE PRESCRIBED UNDER THE ACT. FOR T HE SAID REASON, ASSESSEE DEDUCTED THE TAX AT SOURCE HAVING REGARD T O THE PROVISIONS OF THE RESPECTIVE DTAAS WHICH PROVIDED FOR A BENEFI CIAL RATE OF TAXATION. IT WOULD 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 TH E ACT ARE ALSO SUBORDINATE TO THE PRINCIPLE ENSHRINED IN SECTION 90( 2) AS HELD BY THE HON'BLE SUPREME COURT IN THE CASE OF AZADI BACHAO A NDOLAN AND OTHERS (SUPRA). THUS, IN SO FAR AS THE APPLICABILIT Y OF THE SCOPE/RATE OF TAXATION WITH RESPECT TO THE IMPUGNED PAYMENTS M AKE 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 PRESCRIBED FOR A BENEFICIAL RATE OF TAXATION. HOWEV ER, THE CASE OF THE ITA NO.2702/AHD/2017 7 REVENUE IS THAT THE TAX DEDUCTION AT SOURCE WAS REQ UIRED TO BE MADE AT 20% IN THE ABSENCE OF FURNISHING OF PAN BY THE REC IPIENT 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 SECTION 5 OF THE AC T DEALING WITH ASCERTAINMENT OF TOTAL INCOME ARE SUBORDINATE TO TH E PRINCIPLE ENSHRINED IN SECTION 90(2) OF THE ACT BUT THE PROVISI ONS OF CHAPTER XVII-B GOVERNING TAX DEDUCTION AT SOURCE ARE NOT SU BORDINATE TO SECTION 90(2) OF THE ACT. NOTABLY, SECTION 206AA OF THE ACT WHICH IS THE CENTRE OF CONTROVERSY BEFORE US IS NOT A CHARGI NG SECTION BUT IS A PART OF A PROCEDURAL PROVISIONS DEALING WITH COLLEC TION AND DEDUCTION OF TAX AT SOURCE. THE PROVISIONS OF SECTION 195 OF THE ACT WHICH CASTS A DUTY ON THE ASSESSEE TO DEDUCT TAX AT SOURCE ON P AYMENTS TO A NON-RESIDENT CANNOT BE LOOKED UPON AS A CHARGING PR OVISION. IN-FACT, IN THE CONTEXT OF SECTION 195 OF THE ACT ALSO, THE HON 'BLE 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 THE ACT WOULD APPLY ONLY TO SUMS WHICH ARE OTHERWIS E 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 SE CTIONS 4, 5, 9, 90 & 91 OF THE ACT ARE RELEVANT WHILE APPLYING THE PROVI SIONS OF TAX DEDUCTION AT SOURCE. THEREFORE, IN VIEW OF THE AFOR ESAID 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 SECTION 90(2) OF THE ACT PROVIDES THAT DT AAS OVERRIDE DOMESTIC LAW IN CASES WHERE THE PROVISIONS OF DTAAS ARE MORE BENEFICIAL TO THE ASSESSEE AND THE SAME ALSO OVERRI DES THE CHARGING SECTIONS 4 AND 5 OF THE ACT WHICH, IN TURN, OVERRIDE THE DTAAS PROVISIONS ESPECIALLY SECTION 206AA OF THE ACT WHICH IS THE CONTROVERSY BEFORE US. THEREFORE, IN OUR VIEW, WHER E THE TAX HAS BEEN DEDUCTED ON THE STRENGTH OF THE BENEFICIAL PRO VISIONS OF SECTION DTAAS, THE PROVISIONS OF SECTION 206AA OF THE ACT CAN NOT BE INVOKED BY THE ASSESSING OFFICER TO INSIST ON THE TAX DEDUC TION @ 20%, HAVING REGARD TO THE OVERRIDING NATURE OF THE PROVI SIONS OF SECTION 90(2) OF THE ACT. THE CIT(A), IN OUR VIEW, CORRECTLY INFERRED THAT SECTION 206AA OF THE ACT DOES NOT OVERRIDE THE PROVIS IONS OF SECTION 90(2) OF THE ACT AND THAT IN THE IMPUGNED CASES OF PA YMENTS MADE TO NON-RESIDENTS, ASSESSEE CORRECTLY APPLIED THE RA TE OF TAX PRESCRIBED UNDER THE DTAAS AND NOT AS PER SECTION 206 AA 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 TH E ACTUAL TAX RATE ON WHICH TAX WAS DEDUCTED BY THE ASSESSEE IN T ERMS OF THE RELEVANT DTAAS. AS A CONSEQUENCE, REVENUE FAILS IN ITS APPEALS. 6. THE VIEWS SO EXPRESSED BY THE COORDINATE BENCH NO W STAND APPROVED BY HON'BLE DELHI HIGH COURT'S JUDGMENT IN THE CASE OF DANSICO INDIA PVT. LTD. (SUPRA). NO JUDICIAL PRECED ENT TO THE CONTRARY ITA NO.2702/AHD/2017 8 HAS BEEN BROUGHT TO OUR NOTICE. IN THIS VIEW OF THE MATTER, AND RESPECTFULLY FOLLOWING THE BINDING JUDICIAL PRECEDE NTS, WE APPROVE THE CONCLUSIONS ARRIVED AT BY THE CIT(A) AND DECLINE TO INTERFERE IN THE MATTER. IN THE LIGHT OF THE ABOVE DISCUSSION AND JUDICIAL P RECEDENTS, WE ARE OF THE VIEW THAT WHEN TAX IS REQUIRED TO BE DED UCTED AS PER THE PROVISIONS OF TREATY THE PROVISIONS OF SECTION 206AA SHALL NOT APPLY, AND THE PROVISIONS OF SECTION 90(2) WHICH IS BENEFICIAL TO THE ASSESSEE WOULD BE APPLICABLE. RESPECTFULLY FO LLOWING THE ABOVE ORDER OF THE TRIBUNAL, WE DO NOT FIND ANY INF IRMITY IN THE ORDER OF THE LD.CIT(A), WHICH IS CONFIRMED. GROUND S OF APPEAL OF THE REVENUE ARE DISMISSED. 8. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE COURT ON 19 TH NOVEMBER, 2019. SD/- SD/- (AMARJIT SINGH) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER