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TMI Blog2023 (8) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... nue, seeking condonation of delay in re-filing the appeal. 2. According to the appellant/revenue, there is a delay of 180 days. 3. Mr Rohit Tiwari, who appears on behalf of the respondent/assessee, does not oppose the prayer made in the application. 4. Accordingly, the delay is condoned. 4.1 The application is disposed of, in the aforesaid terms. ITA 396/2023 5. This appeal concerns Assessment Year (AY) 2018-19. 6. Via this appeal, challenge is laid to the order dated 26.08.2022 passed by the the Income Tax Appellate Tribunal [in short, "Tribunal"]. 7. According to Mr Sanjay Kumar, learned senior standing counsel, who appears on behalf of the appellant/revenue, the short issue which arises for our consideration is: Whether the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. The Tribunal, after having perused the material on record, made the following crucial observations in paragraphs 9 to 12 of the impugned order: "9. We have heard the parties, perused the material on record and gave our thoughtful consideration. It is admitted fact that the assessee has filed its return claimed service income of Rs. 2,84,40,475/- received from Heidrickand Struggles Pvt. Ltd. as income from other sources. As per India US Tax Treaty, the service rendered by the assessee do not specify the 'make available clause of India US Tax Treaty'. It is also emerges from the record that for the Assessment Year 2018-19 a similar adjustment i.e. taxing a service receipt 40% was levied by CPC, Bangalore in the case of assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se them when approached by them as to their rights and liabilities and as to the procedure to be adopted for claiming refunds and reliefs." 11. Further, in the case of Madhabi Nag Vs ACTT (ITA No. 512/Kol/2015) (Kolkata), the Hon'ble Tribunal held that the revenue authorities ought not to Have rejected the application u/s 154 of the Act on the ground that the assessee has riot filed the revised return of income. Further in the case of CIT v. Bharat General Reinsurance Co. Ltd. 81 ITR 303 (Del) (Hon'ble Delhi High Court), the Hon'ble High Court held that merely because the assessee wrongly included the income in its return for a particular year, it cannot confer jurisdiction on the department to tax that income in that year ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t view in consonance with the provisions of the Act and the aforementioned circular issued by the CBDT. Undoubtedly, the appellant/revenue can seek to levy tax only on income which falls within the ambit of the Act. Merely because the respondent/assessee placed the income under a wrong head, cannot possibly make it amendable to imposition of tax. 16. According to us, no substantial question of law arises for our consideration. 17. The appeal is, accordingly, closed. ---------------- Notes: 1. ARTICLE 12 ROYALTIES AND FEES FOR INCLUDED SERVICES 1. Royalties and fees for included services arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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