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2017 (1) TMI 1588 - AT - Income TaxAddition u/s 41 - refund of entry tax receivable from the Government of Andhra Pradesh - taxability in a instant year - Held that - The levy of income tax is on real income - the crediting of amount in the P&L account itself would not be conclusive to say that the corresponding income has accrued to the assessee, so as to be liable for taxation - hence we hereby direct that the lower authorities have erred in invoking the provisions of section 41 to include a sum of ₹ 2,07,80,623/- in the total income - Decided in favor of assessee. Taxation of royalty income received from its overseas subsidiary - Non taxability in India - DTAA between India and Egypt - Held that - It is claim which involves a point of law with necessary facts being on record - in such a situation, even if, the claim has not been made at an earlier stage, income-tax authorities are entitled to admit such a claim - hence we deem it fit and proper to admit the claim of the assessee and restore it to the file of the AO for adjudication on merits after giving reasonable opportunity of being heard to the assessee - partly allowed in favor of assessee.
Issues Involved:
1. Taxability of refund receivable from Andhra Pradesh Government on account of entry tax under section 41(1) of the Income Tax Act, 1961. 2. Double disallowance of gift expenses. 3. Taxability of royalty income received from an overseas subsidiary under the DTAA with Egypt. Detailed Analysis: 1. Taxability of Refund Receivable from Andhra Pradesh Government on Account of Entry Tax: The primary issue was whether the refund of entry tax amounting to ?2,07,80,623/- should be treated as income under section 41(1) of the Income Tax Act, 1961. The assessee had paid this amount under protest in the previous year relevant to the assessment year 2005-06 and claimed it as an expenditure, which was allowed. In the assessment year 2006-07, the assessee credited this amount to its P&L account but reduced it from taxable income in its return, arguing that it should only be taxed when the refund claim is finalized by statutory authorities. The income tax authorities rejected this plea, asserting that since the amount was credited in the P&L account, it must be included in the taxable income. However, the Tribunal observed that the levy of income tax is on real income and not hypothetical income. The Tribunal emphasized that the crediting of the amount in the P&L account was based on the assessee's perception and not on any statutory order. Therefore, the amount did not constitute real income for the assessment year 2006-07. The Tribunal allowed the assessee's claim, holding that the amount of ?2,07,80,623/- should not be taxed in the instant year, rendering the alternative plea for reduction of the addition academic. 2. Double Disallowance of Gift Expenses: The second issue involved the double disallowance of 10% of gift expenses amounting to ?3.45 lakhs. However, this ground was not pressed by the assessee at the time of hearing and was consequently dismissed by the Tribunal. 3. Taxability of Royalty Income Received from Overseas Subsidiary: The final issue was whether the royalty income of ?1.42 crores received from the assessee's overseas subsidiary, M/s SCIB Chemicals SAE, Egypt, should be excluded from taxable income under Article 13 of the Double Taxation Avoidance Agreement (DTAA) between India and Egypt. The DRP did not entertain this claim as it was not raised in the original proceedings and was considered beyond its jurisdiction. The Tribunal noted that the fact of earning royalty income from the overseas subsidiary was part of the record, as evidenced by submissions to the Transfer Pricing Officer and the Transfer Pricing Officer's order. The Tribunal cited the Hon'ble Kerala High Court's decision, which allowed consideration of additional grounds involving points of law even in remand proceedings. The Tribunal admitted the fresh claim and restored it to the Assessing Officer for adjudication on merits, directing the Assessing Officer to allow a reasonable opportunity of being heard to the assessee. Conclusion: The Tribunal partly allowed the appeal, ruling in favor of the assessee on the major grounds related to the taxability of the refund receivable and the royalty income, while dismissing the ground related to the double disallowance of gift expenses. The order was pronounced in the open court on 11/01/2017.
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