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TMI Blog2013 (11) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... tax is not apart of 'Fees for Technical Services' as defined in section 9(1)(vii) of the Income tax Act, 1961 and directing the Assessing Officer to delete the income tax levied thereon." 2. The facts are that the assessee company is a non-resident company incorporated under the laws of Denmark. It is engaged in supplying licence, know-how and engineering and also rendering procurement services to various fertilizers and petrochemical industries in India. The assessee company has declared income from Royalties and fees for technical services taxable @ 20% as applicable to these incomes under section 115A of the Income tax Act r.w. Article 13 of AADT between India and Denmark. The assessee company claimed that the amount of service tax col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e charged on the service tax collected and paid to the Government and, accordingly, ld CIT(A) directed the AO to delete the income tax levied on the service tax collected by the assessee for both the assessment years under consideration. Hence, department is in further appeals before the Tribunal. 4. At the time of hearing, ld Departmental Representative supported the action of Assessing Officer and also submitted that as per judgment of Hon'ble apex Court in the case of Chowringhee Sales Bureau Pvt Ltd(supra), sales tax is held to be a part of trading receipt. He submitted that service tax is similar in nature to sales tax and, therefore, Assessing Officer is justified to include the service tax collected by the assessee as a part of gros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nie vs ADIT (Income Tax Act No.2131/Mds/2010) vide order dated 23.6.2011, wherein, it was held that service tax received by the assessee is in the nature of reimbursement, which is paid to the Government and it cannot be considered as part of trading receipt and hence, cannot form part of total income of the assessee. He submitted that the orders of ld CIT(A) be confirmed. 6. We have carefully considered the orders of authorities below and submissions of representatives of both the parties. We have also gone through the decision of Coordinate Bench of this Tribunal in the case of Veolia Ea-Compagnie(supra). We observe that in the said case, similar issue arose i.e. as to whether the service tax charged and collected by the assessee, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for levy of tax in the hands of the assessee. It is relevant to state that in the said case, ITAT also placed reliance on the decision of ITAT Hyderabad Bench in the case of ACIT vs. Louis Berger International Inc,(2010) 40 SOT 370(Hyd) and in the said case the decision of Hon'ble apex Court in the case of Chowringhee Sales Bureau (P) Ltd (supra) was also considered and distinguished. On behalf of the department, no contrary decision was brought to our notice. 7. Since the issue under consideration is covered by the decision of co-ordinate bench of this Tribunal in the case of Veolia Ea-Compagnie(supra), we hold that ld CIT(A) has rightly held that service tax collected by the assessee from the recipient of services provided by the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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