9911796707
TMI Blog2017 (1) TMI 1806X X X X Extracts X X X X X X X X Extracts X X X X ..... y. 2. The Ld. AR submitted that vide application dated 30th April 2012 the assessee submitted amended ground no. 2 which was taken on record as DR is not having any objection to the same. 3. The grounds of appeal are as under: (ITA No. 4586/Del/2011 Assessment Year 2006-07) "1. That on the facts and circumstances of the case and in law, the Ld. Commissioner of Income tax (Appeals)- XI ["CIT(A)" ] erred on facts and in law in passing the impugned appellate order dated July 18, 2011. 2. That on the facts and circumstances of the case and in law, the Ld.CIT(A) has erred in upholding the action of the Assessing Officer ("A.O") in making an addition of Rs.17,687,327/- to the income of the Appellant by treating the reimbursements receive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appellant does not have any presence in India, the withholding tax provisions should not be applied to be appellant. 5. That on the facts and circumstances of the case and in law, the CIT(A) has erred in upholding the order of the A.O in charging of interest under the provisions of Section 234A and 234B of the Act. Each of the ground is independent and without prejudice to the other grounds of appeal preferred by the Appellant." 4. The grounds of appeal are as under:- (I.T.A No. 1111/Del/2012 Assessment Year 2008-09) "1. That on the facts and circumstances of the case and in law, the Learned Commissioner of Income Tax (Appeals)-XXIX ["CIT(A)"] erred on facts and in law in passing the impugned appellate order dated October 2, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se are as under: (A.Y 2006-07) The assessee is a company incorporated in UK on 20/09/2002 and was engaged in the business of providing consulting services in the name and style viable vision which helps in organizational effectiveness viz decision making procedure. Increasing profitability etc. The assessee filed its return of income on 20/1/2007 declaring total income at Rs.24,68,50,612/-. The return was processed u/s 143(1) of the Act and thereafter the case was selected for scrutiny. The Assessment was completed on 23/12/2008 u/s 143(3) of the Act, computing total income at Rs.26,45,37,939/- as against returned income of Rs.24,68,50,612/- as declared by the assessee. The addition/disallowance inter-alia includes i) on a/c of reimburse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e an amount of Rs.39,82,152/- received by it as reimbursement of expenses incurred on travelling, boarding and lodging etc. from various customers while computing its gross receipts from fee from technical services. The CIT(A) dismissed the appeal of the assessee by holding that identical issue was involved in assessee's own case for the A.Y. 2006-07 and thus upheld the order of the Assessing Officer. The CIT(A) also observed that the scheme of taxation of royalty/FTS under the treaty or the act was similar to that of computing profits and gains in the case of non-residents under Section 44B or 44BB, i.e. in both the cases, the income is taxed on presumptive basis and without allowing any deduction for any expense/allowances. Therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... underwriter. The underwriting commission is de hors the rendering of any managerial, technical or consultancy services and hence cannot fall within the definition of fees for technical services u/s 9(1) (vii) last item is the reimbursement of expenses. The Assessing Officer has not disputed that the sum of rs.1.68 crores is in the nature of expenses reimbursed by the assessee to the lead managers. When a particular amount of expenditure is incurred and that sum is reimbursed as such, that cannot be considered as having any part of it in the nature of income. Any payment, in order to be brought within the scope of income by way of fees for technical services u/s 9(1) (vii), should be or have at least some element of income in it. Such paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucational programmes/workshops in respect of Assessment Year 2008-09. The Ld. AR further submitted that there is separate finding by the CIT(A) which states that Section 44 BB of the Income Tax Act is applicable in the present case. But the said Section is not at all applicable because it is related to the technical support for extracting minerals and oils which is not a business of the assessee in the present case. 12. The Ld. DR relied upon the orders of the Assessing Officer and CIT(A). 13. We have heard both the parties and perused relevant records. As relates Ground No. 2 for A.Y. 2006-07 and 2008-09, the same is squarely covered by the Special Bench Judgment in the case of Mahindra & Mahindra. In the present case also, the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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