1.
Education Cess as per Finance Act 2004 is
additional surcharge. Hence there is no difference between cess and surcharge
2.
Where DTAA specifically provides that taxes in
India shall include surcharge, no separate cess or sucrcharge to be added to DTAA
Rate like in case of UK.
3.
If provisions of DTAA are silent about cess and
sucrcharge, still cess and surcahrges
not to be imposed over DTAA rates . Held by Cochin Tribunal in M Far Hotels
[2013] 58 SOT 261
4.
Uttrakhand High Court decision in Arthusa Offshore Co.169 Taxman 484 [Uttrakhand]
applicable to Indo US treaty where in it was
provided that rate of tax to foreign companies shall not exceed by 15% from the
tax rate applicable to domestic companies at the time of signing treaty. Since
tax rate at the time of signing treaty was 50% and surcharge was 15%, AO
Computed rate at 50%+15%= 57.5%+15= 72.5% but limited it to maximum rate of 65%
under treaty. Assessee however computed rate by adding 15% to rate applicable
for relevant assessment year thus computed it at 60%. In this context High
Court held that surcharge shall be added to rate of tax.
5.
Sunil V. Motiani v. ITO (International
Taxation) [2013] 59 SOT 37/33 taxmann.com 252 (Mum. -
Trib. And Parke Davis & Co. LLC v. Asstt CIT [2014] 162 SOT 282/41 taxmann.com 193 (Mum.
- Trib.) have also decided the issue in favor of assessee after
considering Uttrakhand High Court
6.
As per DIC Asia Pacific Pte Ltd v. Asstt. DIT
(International Taxation)[2012] 52 SOT 447/22 taxmann.com 310. Also surcharge and cess not to be added to DTAA rate
BOC Group Ltd[2015] 64 taxmann.com 386
(Kolkata - Trib.) NOVEMBER 30, 2015
