Professional Documents
Culture Documents
STUDY NOTE - 21
ASSESSMENT OF VARIOUS ENTITIES
Share of Profit from a firm assessed as firm It is exempt under section 10(2A)
Salary and Interest from the aforesaid firm These are taxable as business Income
This Section is applicable for the appropriation of income between spouses governed by the
Portuguese Civil Code which is in force in the state of Goa and Union territories of Dadra and
Even the income from profession will be apportioned equally between the husband and the
wife-
Step 1- Income under the different heads of income -First find out income under the five
heads of income
Step 2- Adjustment of losses of the current year and earlier years- Losses should be setoff
according to the provisions of sections 70 to 78. The income after adjustment of
losses is the gross total income.
Step 3- Deduction from gross total income- Deductions specified under Chapter VI A
should be considered while calculating the gross total income.
Step 4- Rounding off- The balance should be rounded off to the nearest Rs.10. it is called
as net income or taxable income or total income.
Tax liability
The net income derived shall be taxable at the rates prescribed below:
* Threshold limit for resident women assessees below 65 years of age and resident individuals
of 65 years and above to be increased to Rs.1,45,000/- and Rs.1,95,000/- respectively.
Surcharge @ 10% applicable if total income exceeds Rs. 10,00,000/-.
Education Cess @ 2% and Secondary and Higher education cess @ 1% leviable on tax plus
surcharge.
If the individual has Agricultural income then tax should be computed as per the relevant
provisions.
According to Hindu Law, ‘Hindu Undivided Family’ is a family which consists of all persons
lineally descended from a common ancestor and includes their wives and unmarried daugh-
ters. A ‘Hindu Undivided Family’ is neither the creation of law nor of a contract but arises
from status.
A Hindu coparcenary includes those persons who acquire by birth an interest in joint family
property. Only a male member of a family can be a coparcener while the membership of a HUF
consists of both males and females. All the coparceners of the family constitute what is called a
‘Coparcenery’. All the coparceners are members of a HUF but all members of a HUF are not
coparceners. A coparcener of a joint family, who acquires by birth an interest in the joint prop-
erty of the family, whether inherited or otherwise acquired by the family, may have a right to
enforce partition whereas the members of the family who are not coparcenars have no right to
enforce partition. When a partition takes place, member (mother or widow) of the joint family
may get a share equal to the sons and also it is necessary to provide for maintenance and
marriage of the unmarried daughter out of family property.
There are two schools of Hindu Law- 1) Mitakshara and 2) Dayabhaga. Under the Mitakshara
school, each son acquires by birth an equal interest with his father in the ancestral property.
Under the Dayabhaga School which prevails in West Bengal and Assam, a son does not acquire
by birth in ancestral property. He acquires interest only on the death of his father. Father
enjoys an absolute right to dispose of the property of the family according to his desire. After
the death of father, his son does not, by operation of law, become members of the joint family.
The sons remain as co-owners with definite shares in the properties left by father unless they
decide to live as a joint family.
Case Laws:
i) A single person, male or female, cannot constitute a Hindu Undivided Family. An indi-
vidual, who has obtained a share on partition of a joint family, has potentialities of creating a
joint family; but until he marries, he alone cannot be considered as a joint family. C. Krishna
Prasad vs. CIT97 ITR 493.
ii) A joint family may consist of a single male member with his wife and daughter(s) and it is
not necessary that there should be two male members to constitute a joint family [Gowli
Buddanna vs. CIT 60 ITR 193.
Jain & Sikh families are not governed by Hindu Law. However, for the purpose of Income tax
Act, such families are treated as ‘Hindu Undivided Families’.
The income of a joint Hindu family may be assessed in the status of HUF if the following
conditions are satisfied:-
i) there should be a coparcenership
ii) there should be a joint family property which consists of ancestral property, prop-
erty acquired with the aid of ancestral property and property transferred by its
members. It may be pointed out that once a joint family income is assessed as that
of Hindu Undivided Family, it will continue to be assessed as such in future years
till partition is claimed by its coparceners.
PARTITION OF HUF
‘Partition’ may be a (i) total or complete partition (ii) partial partition.
Where all the properties of the family are divided amongst all the members of the family, and
the family ceases to exist as an undivided family, it is known as total or complete partition.
On the other hand, where one or more coparceners of the HUF may separate from others and
the remaining coparceners may continue to be joint or some of the properties are divided and
the balance remain joint it is known as partial partition.
W.e.f. 31st December, 1978 partial partition are not recognised for tax purposes and as such the
joint family shall continue to be liable to be assessed as if no such partial partition had taken
place. Each member of such family, immediately before such partial partition and the family
shall be jointly and severally liable for any sum payable under the Act. [Sec. 171(9)]
ASSESSMENT OF FIRMS
From the Assessment Year 1993-94 partnership firm has been classified for the purpose of
computation of income and its assessment as under:
(a) partnership firm assessed as such (PFAS)
(b) partnership firm assessed as an association of person.
Provisions relating to assessment of firms and partners are analyzed as under:–
Assessment of firms and conditions to be fulfilled to avail the status of PFAS [Sec. 184]
Where a firm wants to avail the status of PFAS, it has to satisfy the following conditions:-
i) The firm shall be evidenced by an instrument and the individual shares of the
partner shall be specified therein. [Sec. 184(1)]
ii) A certified copy of the instrument of partnership shall accompany the return
of income of the previous year relevant to the assessment year 1993-94 or sub
sequent year in respect of which assessment of the firm is first sought. [Sec.184(2)]
iii) Wherever during a previous year a change takes place in the constitution of
the firm or in the sharing ratio of partners, a certified copy of the revised instru
ment of partnership be submitted along with the return of income of the con
cerned year of assessment. [Sec. 184(4)] Dis
iv) There should not be any failure on the part of the firm as is specified in Sec. Me
144 [Sec. 184(5)]
Rat
It may be mentioned that once a firm is assessed as PFAS after fulfillment of the above condi-
tions, it will be assessed as PFAS, for every subsequent year provided there is no change in Tax
either firm’s constitution or partner’s profit sharing ratio. However, there should not be any
failure mentioned in sec. 144. [Sec. 184(3)]
A partnership deed shall be certified in writing by all the major partners. Where, however, the
firm is dissolved and the return is filed after its dissolution, then the copy of deed may be
certified by all the major partners in the firm immediately before is dissolution. Where a
partner is dead, then it will have to be certified by his legal representative. [Sec. 184(2) Expl.]
Computation of Income
The following provisions should be given due consideration while computing income of a
firm-
Association of Persons:
Where two or more persons voluntarily joint together in a common purpose or action with
the object of producing income, Profits and gains they are said to have formed an Association
of Persons.
Body of Individuals:
It is a conglomerate of individuals who happen to have come together to carry on sum activ-
ity with a view to earn income i.e. co-heirs inheriting shares or securities.
Distinction between AOP & BOI:
i) AOP may consist of non-individuals but BOI has to consist of individuals
only
ii) An AOP is a voluntary combination of persons in a joint enterprise or com
mon action to produce income whereas in case of BOI will only consist of
two or more persons, may or may not have any common object.
iii) A BOI may become an AOP, but not vice versa.
Share of members of AOP/BOI shall be deemed to be indeterminate or unknown, if such
shares (in relation to the whole or any part of the income) are indeterminate or unknown on
the date of formation of such AOP/BOI or any time thereafter.
Any payment of interest, salary, bonus, commission or remuneration by the AOP/BOI to a
member is not allowable as deduction. Where interest is paid by AOP/BOI to a member who
has also paid interest to the AOP/BOI, the amount of interest to be disallowed will be limited
to the net amount of interest paid by the AOP/BOI. [Sec. 40(ba)]
Tax Rates :
Maximum marginal rate means the rate of tax (including surcharge, if any) applicable to the
highest slab of income in case of individuals. [Sec.2(29C)]
Ascertainment of member’s share in AOP/BOI where shares are determinate and its taxabil-
ity [Sec. 67A, 86 & 110]
i) Ascertainment of share in AOP/BOI [Sec. 67A] Rs.
Total income of the AOP/BOI ***
Less: Interest, salary, commission or other remuneration paid to any member ***
“Average rate of Income-tax” is defined u/s. 2(10) to mean the rate arrived at by dividing the
amount of Income-tax calculated on the total income, by such total income.
ASSESSMENT OF COMPANIES
In computing tax incidence companies are classified as follows :
i) Domestic Company
ii) Foreign Company
‘Company’ means —
i) any Indian company; or
ii) body corporate incorporated outside India under the laws of a foreign country;
or
iii) any institution, association or a body which is assessed or was assessable/as-
sessed as a company for any assessment year commencing on or before 1.4.1970;
or
iv) any institution, association or body whether incorporated or not and whether
Indian or non-Indian which is declared by general or special order of the Central
Board of Direct Taxes to be a company. [Sec. 2(17)]
“Average rate of Income-tax” is defined u/s. 2(10) to mean the rate arrived at by dividing the
amount of Income-tax calculated on the total income, by such total income.
ASSESSMENT OF COMPANIES
In computing tax incidence companies are classified as follows :
i) Domestic Company
ii) Foreign Company
‘Company’ means —
i) any Indian company; or
ii) body corporate incorporated outside India under the laws of a foreign country; or
iii) any institution, association or a body which is assessed or was assessable/assessed
as a company for any assessment year commencing on or before 1.4.1970; or
iv) any institution, association or body whether incorporated or not and whether In-
dian or non-Indian which is declared by general or special order of the Central
Board of Direct Taxes to be a company. [Sec. 2(17)]
‘Domestic Company’ means —
i) an Indian company; or
ii) any other company which, in respect of its income liable to tax under the Act, has
made the following prescribed arrangements for the declaration and payment of
dividends within India in accordance with Sec. 194 read with Rule 27 of the Rules:
a) The share register of the company for all shareholders should be regularly main-
tained at its principal place of business in India, in respect of any assessment year,
from 1st April of the relevant assessment year.
b) The general meeting for passing of accounts of the relevant previous year and for
declaring dividends in respect thereof should be held only at a place within India.
c) The dividends declared, if any, should be payable only within India to all share-
holders. [Sec. 2(22A)]
‘Foreign Company’ means company which is not a domestic company. [Sec. 2(23A)]
‘Indian Company’ means a company formed and registered under the Companies Act, 1956.
Besides, it includes the following:-
a) a company formed and registered under any law relating to companies for merly
in force in any part of India;
b) a corporation established by or under a Central, State or Provincial Act;
c) any institution, association or body which is declared by the Board to be a
company u/s. 2(17).
d) a company formed and registered under any law in force in the State of Jammu
and Kashmir;
Sections Particulars
115JA If the taxable income of a company computed under the I.T. Act, in
[Applicable for respectof previous year 1996-97 and onwards are less than 30% of its book
assessment year profits, the total income of such company chargeable to tax for the rel-
1997-98 to 2000-01] evant previous year shall be deemed to be an amount equal to 30% of
such book profit
Explanation to 115JA Definition of Book Profit.
115JAA Tax credit in respect of tax paid on deemed income shall be computed
under section 115JA as under :
Rs.
Step–1 Tax payable by the company u/s. 115JA ***
Step–2 Tax payable by the company without applying the provisions
of section 115JA ***
Step- 3 Difference (Step-1 – Step- 2) being Tax credit which shall be
allowed to carry forward to subsequent years and set off against
the tax payable without applying the provisions of S. 115JA. ***
The Companies which declares dividend but do not pay tax, they are called ‘ZERO TAX COM-
PANY’. To bring them in the net of taxation a provision was introduced during the assessment
year 1996-97 which was named then
3. Exemption from income distribution tax extended to close-ended equity oriented mutual
funds section 115R
Currently, income distribution tax is not payable in respect of income distributions by open-
ended equity mutual funds. With effect from 01.06.2006, this exemption shall be applicable to
all equity oriented mutual funds (i.e. close-ended funds will also be exempt).
Further, the definition of equity-oriented fund given in section 115T has been amended to man
such fund where the investible funds are invested in equity shares of domestic companies to
the extent of more than 65% of its total proceeds as against the earlier 50%.
Amalgamation in relation to companies means the merger of one or more companies with
another company, or merger of two or more companies to form a new company. The company
so merged goes out of existence is “amalgamating company.” The company into which the
amalgamating company merges, or the new company that is formed to effect amalgamation, is
“amalgamated company” in such a manner that :–
The effective date in a scheme of amalgamation is the date of transfer specified in the scheme
and not the date of high court’s order approving the scheme. So long as the court does not
modify the date specified in the scheme, amalgamation takes effect on date of transfer speci-
fied in the scheme. The income of the amalgamating company from such date of transfer shall
be assessed as income of the amalgamated company and shall be assessed accordingly. [Marshall
Sons and Co. (India) Ltd. v. ITO (SC), 223 ITR 809]
Certain concessions are provided under various provisions of the Income-tax Act in respect of
amalgamation which are as under:
a) To amalgamating company
i) Sec. 47 (vi): In a scheme of amalgamation capital gains tax is not attracted in case of
transfer of capital asset by the amalgamating company to the amalgamated com-
pany.
The following benefits in the hands of amalgamating company are available to the amal-
gamated company:
Sec. 35(5) : Expenditure on scientific research
Sec. 72A : Carry forward and set off of accumulated and unabsorbed
depreciation
Further, the amalgamated company is entitled for:
Sec. 35DD : Amortisation of expenditure in case of amalgamation or
demerger
the demerged company are transferred at values appearing in its books of account im-
mediately before the demerger;
iv) the resulting company issues, in consideration of the demerger, its shares to the share-
holders of the demerged company on a proportionate basis;
v) the shareholders holding not less than three-fourths in value of the shares in the
demerged company (other than shares already held therein immediately before the
demerger, or by a nominee for, the resulting company or, its subsidiary) become share-
holders of the resulting company or companies by virtue of the demerger. Otherwise
than as a result of the acquisition of the property or assets of the demerged company or
any undertaking thereof by the resulting company;
vi) the transfer of the undertaking is on a going concern basis;
vii) the demerger is in accordance with the conditions, if any, notified under sub-section (5)
of section 72A by the Central Government in this behalf.
For the purpose of this definition, “undertaking” shall include any part of an undertaking, or a
unit of division of an undertaking or a business activity taken as a whole, but does not include
individual assets and or liabilities or a combination of these not constituting a business activ-
ity. For determining the value of the property which is subject matter of demerger, any change
in the value of assets on account of revaluation shall be ignored.
Splitting up or the reconstruction of any authority or a body constituted or established under
any Act, or a local authority or a public sector company, into separate authorities or bodies or
local authorities or companies shall be deemed to be the demerger if such split up or recon-
struction fulfils the conditions as may be notified by the Central Government.
DEFINITIONS
• Undertaking : includes any part of an undertaking or a unit or division of an undertaking
or a business activity taken as a whole, but excludes individual assets or liabilities or
combination of both not constituting a business activity.
Resulting Company : means one or more companies (including wholly owned subsid-
iary thereof) to which the undertaking of the demerged company is transferred in a
demerger and the resulting company in consideration of such transfer of undertaking,
issues shares to shareholders of the demerged company and includes any authority or
body or local authority or public sector company or a company established, constituted
or formed as a result of demerger
Carry forward of accumulated loss and/or unabsorbed depreciation of the banking company
in a Scheme of amalgamation with banking institution
• An Indian company will be allowed a deduction of 1/5th of the expenditure incurred for the
purposes of amalgamation or demerger after 1st April, 1999 for five years from the years of
amalgamation/demerger. (S. 35DD)
Actual cost
• Actual cost of the capital asset transferred to amalgamated/resulting company shall be the
actual cost in the hands of the amalgamating/demerged company provided it does not exceed
WDV of such assets in the hands of the demerged company.
• WDV in the hands of amalgamated company shall be the WDV of the block of assets in the
hands of the amalgamating company less depreciation allowed in the year of amalgamation.
• WDV in the hands of the resulting company shall be the WDV of transferred assets as per
books of the demerged company immediately before demerger.
• WDV in the hands of the demerged company shall be the WDV of the block of assets before
demerger less book value of assets transferred to the resulting company.
• Deduction claimed under Section 33AC (Reserve for shipping business) would not be with-
drawn on sale or transfer of a ship in any scheme of demerger.
• Transfer of patent rights or copyrights (S. 35A) or transfer of licence to operate telecommuni-
cation services (S. 35ABB) or transfer of business for prospecting etc. mineral oil (S. 42) in a
scheme of amalgamation/demerger will not be treated as either sale or transfer.
• Acquisition of shares of the resulting company by the shareholders in demerger will not be
taxed either as capital gain or deemed dividend.
— the amalgamated company will be the cost incurred for acquiring shares of amalgamating
company.
— Original cost of shares of demerged company X net book value of assets transferred to re-
sulting company/net worth of the demerged company before demerger (net worth is equal to
Paid-up Share Capital + General Reserve as per books.)
— the demerged company will be the original cost of shares of demerged company – cost of
shares of the resulting company as computed above.
Introduction
Cooperative society is a society registered under the Cooperative Societies Act, 1912, or under
any other law for the time being in force in any State for registration of cooperative societies.
A cooperative society is entitled, to some deduction u/s. 80P of the Income-tax Act.
Steps in computing tax liability of Cooperative Societies
The steps are-
Step- I :Compute gross total income, ignoring income exempt from tax u/s. 10 to 13A
Step-II : Deduct permissible deductions u/ss. 80G, 80GGA, 80I, 80I-A 80IB, 80JJA, etc. and 80P
as applicable.
Step-III :Apply the tax rates for the relevant assessment year to arrive at the tax incidence.
The tax rates applicable are as follows :–
The rates of Income-tax are —
Income Range Rates of tax
1 Where the total income does not exceed Rs. 10,000 10% of the total income
2 Where the total income exceeds Rs.10,000 but Rs. 1,000 plus 20% of the
which the does not exceed Rs. 20,000 amount by total income exceeds
Rs.10,000
3 Where the total income exceeds Rs.20,000 Rs. 3,000 plus 30%, of the amount
by which the total income ex-
ceeds Rs.20,000
However, the tax payable by every cooperative society shall be increased by a surcharge @10%
of the income-tax and education cess @2% and secondary and higher education cess @ 1%.
ASSESSMENT OF TRUSTS
Introduction
Trust : A “Trust” is an obligation annexed to the ownership of property,
and arising out of a confidence reposed in and accepted by the owner,
or declared and accepted by him, for the benefit of another, or of
another and the owner.
Author of trust : The person who reposes or declares the confidence is called the “au
thor of the trust”.
Trustee : The person who accepts the confidence is called the “trustee”.
Beneficiaries : The person for whose benefits the confidence is accepted is called
the “beneficiary”.
In order to ascertain the incidence of tax it is essential to know the nature and character of
trusts and also the mode of computation of its income and conditions for exemptions. For the
purpose of levy of income-tax, trusts may be of the following types :-
1. Charitable trust
2. Private discretionary trust
3. Oral trust
Charitable Trusts
A charitable trust is a trust established in accordance with law for charitable purpose. Chari-
table purpose includes relief of the poor, education, medical relief and the advancement of any
other object of general public utility. [Sec. 2(15)]
Promotion of sports and games is considered to be a charitable purpose and as such an associa-
tion or institution engaged in promotion of sports and games can claim exemption u/s.11,
although it is not approved u/s. 10(23).
ii) The exemption is confined to such portion of the trust’s income as is applied to chari-
table or religious purposes in India except in cases enumerated in sec.11(1)(c)
iii) If the trust property comprises of a business undertaking, the income shown in the books
of account should not be less that the income determined by the A.O. according to pro-
visions of the Income-tax Act. From A.Y. 1992-93, trusts or institution can carry out
business activities if such business activities are incidental to the attainment of its objec-
tives and separate books of accounts are maintained.
iv) The trust should make an application in Form No. 10A to the Commissioner of Income
Tax within one year of creation of trust or the institution and such trust or institution get
registered u/s. 12AA.
vi) The funds of the trust should be invested or deposited in any one or more of the
modes or forms [Sec. 11(5)] such as —
iii) income of religious/charitable trust/institutions established after 31.3.1962 for the ben-
efit of any person specified in sec. 13(3) viz. author, founder or substantial contributor
of the trust or any relative of them. Where the income is used or applied during the
relevant year for the direct or indirect benefit of the above mentioned persons. [sec.
13(1)(c)(i) and (ii)]
iv) income of a trust/institution, if its funds are invested/deposited otherwise than as speci-
fied u/s. 11(5). [sec. 13(1)(d)]
However, the provisions of section 13(1)(d) shall not apply in relation to following :-
• any asset forming part of the corpus of the trust as on 1.6.1973;
• any accretion to the corpus shares by way of bonus shares allotted to the trust;
• debentures issued by or on behalf of any company or corporation and acquired by the
trust before March 1, 1983;
• any asset not covered u/s. 11(5) where such asset is held for not more than 1 year from
the end of the previous year in which such asset is acquired;
• any fund representing the Profits and gains of business, being Profits and gains of any
previous year relevant to the assessment year 1984-85 or any subsequent assessment
year. But such relaxation of the restriction will be denied unless the trust keeps sepa-
rate accounts for the business. As already noted, subject to certain exceptions, such
business profits no longer enjoy exemption u/s. 11.
CHANGES RELATING TO INCOME OF CHARITABLE INSTITUTIONS.
As per the new section 115BBC, anonymous donation shall now be taxable at the maximum
marginal rate of 30%. Consequently, a new sub-section (7) has been inserted in section 13 to
provide that nothing contained in section 11 or section 12 shall operate so as to exclude from
the total income of the previous year of the person in receipt thereof, any anonymous dona-
tion referred to in the new section 115BBC on which tax is payable in accordance with the
provisions of that section. In other words anonymous donation shall not be excluded from the
total income of the assessee.
Taxation of Trust
A.Public Trust u/s. 164(2) —
i) If income is not exempt u/s. 11 or 12, income of Trust is taxable at the rates
applicable to an Association of Person.
ii) If the exemption is forfeited due to contravention of sec. 13(1)(c) or 13(1)(d),
such income of trust is taxable at minimum marginal rate.
Where any part of income is not exempt u/s. 11 or 12 by virtue of sec. 13(1)(c) or (d), tax is
charged on the relevant income at the maximum marginal rate.
iv)General Provisions —
Rate of tax Similar to resident assessees.
Special rates of tax on Dividends, interest income from units of Mutual Fund.
UTI, bonds or shares purchased in foreign currency and capital gains aris-
ing from their transfer.
• 20% of the dividends [which have not been subjected to additional In-
come Tax u/s 115-O] [other than dividends mentioned in clause (iv)
below];
• 20% of the interest received from Government or an Indian concern on
monies borrowed or debt incurred in foreign currency;
• 20% of the income received in respect of units purchased in foreign
currency, of a Mutual Fund specified u/s 10(23D) or of the Unit Trust
India;
• 10% of the interest or dividends [which have not been subjected to ad-
ditional income tax u./s 115-O], in respect of bonds or Global Deposi-
tory Receipts in an Indian company purchased in foreign currency and
issued under the Foreign Currency Convertible Bonds and Ordinary
shares (Through Depository Receipt Mechanism) Scheme, 1993 (com-
monly known as Euro Issues/Euro Bonds) or in respect of bonds or
Global Depository Receipts issued against shares of a public sector com-
pany sold by the Government to the non-resident in foreign currency;
and
• 10% of the long-term capital gains arising from the transfer of the afore-
said bonds or Global Depository receipts.
ii) Method of Tax Credit : Income is taxed in both the countries in accordance with their
respective tax laws. However, the country of the ‘residence’ of the taxpayer allows
him a credit against the tax charged thereon in the country of the source of such
income.
Where any such agreement for avoidance of double taxation exists, then in the case of an asses-
see to whom such agreement applies, the provisions of this Act shall apply to the extent they
are more beneficial to him. [sec. 90(2)]
Provision relating to double taxation relief, etc. (section 90A )
A new section 90A has been inserted to provide that any specified association in India may
enter into an agreement with any specified association in a specified territory outside India
and the Central Government may, by notification in the Official Gazette, make the necessary
provisions for adopting and implementing such agreement for grant of double taxation relief,
for avoidance of double taxation, for exchange of information for the prevention of evasion or
avoidance of income-tax or for recovery of income- tax. It is further provided that in relation to
any assessee to whom the said agreement applies, the provisions of the Income-tax Act shall
apply to the extent they are more beneficial to that assessee.
It is also provided that any term used but not defined in the Income- tax Act or in the agree-
ment shall have the same meaning as assigned to it in the said notification, unless the context
requires otherwise and it is not inconsistent with the provisions of the Income-tax Act or the
said agreement. For this purpose, the ‘specified association’ and ‘specified territory’ will be
notified by the Central Government.
A consequential amendment has also been made to the definition of ‘rate or rates in force’
under section 2(37) so as to provide a reference to the proposed new section.
Countries with which no Agreement Exists
Section 91 of Income-tax Act provides for the grant of unilateral double taxation relief to the
residents. Thus, if an Indian ‘resident’ proves that tax has been paid in respect of his income
which accrued or arose to him during the relevant Financial Year in the countries with which
India has no agreement for double taxation relief, he is entitled to a deduction from the Indian
income tax payable by him of an amount calculated on such doubly-taxed income at the Indian
rate of tax or the rate of tax of the other country, whichever is lower.
Procedure for Grant of Unilateral Relief
Doubly-taxed income consists of the income accrued or arisen to a person in the foreign coun-
try and subject to income tax in the foreign country as well as in India. But income which is
deemed to accrue or arise to tax-payer in India, even though it has been charged to income tax
in foreign country, is not included in such double-taxed income. For the purpose of determin-
ing the rate of tax in a foreign country, income tax and super tax if any paid by him, is divided
by the total income assessed in that country.
Income-tax in relation to any country includes any excess profits tax or business profits tax
also.
In case where the tax-payer has already paid tax on his total income in excess of the amount
determined to be payable after granting him unilateral relief from double taxation, he is en-
titled to refund of the excess.
Case Laws:
i) In case of conflict between Income-tax Act and provisions of DTAA, provisions of
DTAA would prevail over provisions of Income-tax Act. Section 90(2) makes it clear
that the Act gets modified in regard to the assessee insofar as the agreement is con-
cerned if it falls within the category stated therein - CIT v. P.V.A.L. Kulandagan Chettiar
137 Taxman 460/267 ITR 654.
ii) Tax liability arising in respect of a person residing in both contracting States has to be
determined with reference to his close personal and economic relations with one or
other - CIT v. P.V.A.L. Kulandagan Chettiar 137 Taxman 460/267 ITR 654.
iii) In absence of permanent establishment in India in regard to carrying on of business
of rubber plantations in Malaysia, business income earned by assessee out of rubber
plantations could not be taxed in India - CIT v. P.V.A.L. Kulandagan Chettiar 137 Taxman
460/267 ITR 654.