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QUERY: The Finance Act, 2012 with effect from the 1st day of April, 2013, has inserted section 90(4) which provides that a non-resident assessee shall not be entitled to claim relief under the applicable Double Taxation Avoidance Agreement unless a TRC from the Government of the contracting State of which he is a resident, containing the prescribed particulars, is submitted.

Issues:

(a) The Finance Act state that the provision “shall be inserted with effect from the 1st day of April, 2013 which means the provision is applicable from April 1, 2013 i.e. assessment year 2013/14 or 2014/15? As the Notes to clauses and Memorandum to the Finance Bill, 2012 states that the Amendment will take effect from 1st April 2013 and will accordingly apply in relation to assessment year 2013-14 and subsequent years. Please clarify.

(b) Since the format/particulars has not yet been prescribed, whether A Ltd should insist on general TRC from Tax Authorities of the country in which the Foreign Company / NRI is tax resident to prove A Ltd.’s bona fide and substantially start implementing the machinery provision of TDS considering the intent and the spirit of the provision of section 90A?

(c) In the event the Foreign company / NRI, fails to provide the TRC, which rate should be applied?
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(a) Section 90(4) is applicable from assessment year 2013/14 as explained in Memorandum to the Finance Bill 2013/14 to the Finance Bill, 2012. The Supreme Court consisting of five judges in Karimtharuri

QUERY: The assessee is a Co-Operative Society and maintaining accounts on mercantile system of accounting. During the financial year 2008-09 (Asst. yr. 2009-10) on the basis of actuary valuation made provisions of Rs. 80 lakhs towards employees gratuity fund and during the same financial year deposited full amount to the LIC under Group Gratuity Life Assurance Scheme. The AO wants to disallow as on the ground that it is not Approved Gratuity Fund. Assessee’s pleas is that the same is allowable u/s. 40A(7) read with section 43B. In past so many years the same was allowed by the AO though no specific reference was made.

Kindly let us know the legal view with case law if available.
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EXPERT:
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S. 29 of the Act reads as under:

“The income referred to in section 28 shall computed in accordance with the provisions contained in sections 30 to 43D”.

S. 43B reads as under: