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TMI Blog2015 (11) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, 2010 and November 11, 2011 for the assessment years 2007-08 and 2008-09 respectively. 2. At the outset, before us, both parties submitted that though the appeal of the assessee relates to two different assessment years but the facts and circumstances of both the years are similar except for the assessment years and amounts and the submissions are also common for both appeals and therefore both appeals can be heard together. We therefore proceed to dispose of both appeals together for the sake of convenience and proceed with the facts in I. T. A. No. 726/Ahd/2011 for the assessment year 2007-08. 3. The assessee is stated to be a company incorporated in the U.S.A. having a permanent establishment in India and stated to be engaged in prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l services covered under section 44D(b) as income liable to tax at 20 per cent. under section 115A of the Act as against Rs. 6,98,39,579 received by the assessee from the Government under projects. He also noticed that the reimbursement of expenses which were received by the assessee were not considered by the assessee to be in the nature of fees for technical services for the purpose of section 44D. The Assessing Officer was of the view that section 44D is an overriding provision and as per the provisions, no deduction in respect of any expenditure under sections 28 to 44C shall be allowed therefore the expenditure of Rs. 6,98,39,579 which was shown by the assessee under the head "consulting fee, management fee, exchange profit/loss and re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reimbursement of expenses is neither (a) fees for technical services nor (b) lump sum consideration nor (c) provision for services of technical or other personnel. The assertions of the assessee have not been rebutted by the Assessing Officer. In the light of the above, following the decision of the hon'ble Income-tax Appellate Tribunal, Cuttack Bench in the assessee's case, I hold that reimbursement of expenses is not part of 'fees for technical services' under section 44D of the Income-tax Act. Therefore, the Assessing Officer is directed to recompute the 'fees for technical services'. This ground of appeal is therefore allowed." 5. Aggrieved by the aforesaid order of the learned Commissioner of Income-tax (Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile computing the income under section 44D, no deduction of expenditure is to be allowed. We find that the learned Commissioner of Income-tax (Appeals) while deciding the issue in favour of the assessee has relied on the decision of the hon'ble Cuttack Bench in the assessee's own case for the assessment year 2002-03. We find that the learned Commissioner of Income-tax (Appeals) vide order dated December 12, 2005 for the assessment year 2002-03 had decided the issue in favour of the assessee by holding as under : "6.1 The learned authorised representative's argument that, if the receipts of the appellant are treated as fees for technical services, then, the total receipts of Rs. 7,47,37,250 credited to profit and loss account, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that on the case being transferred from the Deputy Commissioner of Income-tax, Bhubaneswar to Ahmedabad, the assessee vide letter dated June 6, 2013 addressed to the concerned officer at Ahmedabad, had requested the Department to inform as to whether any appeal has been preferred by the Department against the Income-tax Appellate Tribunal's order of the Cuttack Bench for the assessment year 2002-03 (the copy of the aforesaid letter is placed at page 378 of the paper book). She submitted that the aforesaid letter has remained un-replied till date which leads to the conclusion that no appeal has been preferred by the Revenue against the order of the Income-tax Appellate Tribunal for the assessment year 2002-03 and therefore the o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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