Rajkot ITAT considers principles relevant for applicability of Article 24 of India-Singapore DTAA with respect to denial of treaty benefit on freight income earned by a Singaporean based shipping co. (‘assessee’) during AY 2015-16, remits matter back to CIT(A) for de novo adjudication in light of the new facts emerging pursuant to additional evidence filed by assessee; In absence of evidence showing that the freight money was actually remitted to Singapore and suffered the tax, AO had invoked Article 24 and denied the treaty benefits; ITAT rejects assessee’s stand that Article 24 of DTAA cannot be invoked as the Indian shipping income of the Singaporean assessee cannot be treated as exempt from tax in India, as India does not have the right to tax it at all, remarks that “such a plea is contrary to the scheme of the India Singapore tax treaty.”; Opines that the context in which expression ‘exempt from tax’ is set out in Article 24, it essentially implies that the treaty benefit of non-taxation of an income, or its being taxed at a lower rate, in a contracting state depends on the status of taxability in another contracting state; Remarks that “to hold that only income covered by article 20, 21 and 22 [relating to in the context of students and trainee, and teachers and researchers], can be said to be exempt in the source state because the expression ‘exempt from tax’ is used therein, is plainly contrary to the context in which expression ‘exempt from tax’ is used, it is the net effect not the wording which is relevant in the present context.”; Rejects assessee’s reliance on Mumbai ITAT ruling in APL Co Pte Ltd., holds that the conclusion arrived at by the co-ordinate bench leads to a situation in which Article 24 is rendered otiose, however, does not see the need to refer the matter to a larger bench as the earlier binding judicial precedent of Mumbai ITAT ruling in Hindalco Industries (on the purpose of the relevant provision in the tax treaty) was not brought to the notice of that bench; Next, ITAT takes note of certificates issued by KPMG (i.e. assessee’s tax advisor) and by Inland Revenue Authority of Singapore which gave an impression that freight income received from India was ‘subjected to tax’ in Singapore; However, ITAT notes that assessee had availed exemption u/s. 13F of the Singapore’s Income Tax Act, evidencing that the income embedded in the freight receipts was not actually taxed in Singapore; Rejects assessee’s claim that the relevant income was ‘subjected to tax’ in Singapore, explains that by the virtue of the assessee being fiscally domiciled in Singapore, the freight income was ‘liable to tax’ but then ‘liable to tax’ is not the same thing as ‘subject to tax’, relies on AAR in General Electric Pension Trust; ITAT observes that additional evidence submitted by assessee has resulted in interesting legal propositions which had not been examined by lower authorities, thus remits issue holding that “Let all the relevant aspects be examined afresh in this light and the perspectives of both the parties be taken to the record and be analyzed properly, particularly as this issue concerns a large number of Singaporean companies operating India”:ITAT
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