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TMI Blog2023 (9) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... of India-UK Tax Treaty rate for dividend while determining Dividend Distribution Tax (DDT) liability for the assessee - DR opposed admission of additional ground at this stage of proceedings and submitted that the facts of the issue are not available on record - HELD THAT:- As decided there was no bar for appellate authorities to admit new claims. Therefore, we admit the additional ground for both the years and remand the same for adjudication to the file of Ld. AO with a direction to the assessee to substantiate its claim. The cited decision of Total Oil India Private Ltd. ( 2023 (4) TMI 988 - ITAT MUMBAI (SB) ) shall also be considered by Ld. AO. The additional grounds of appeal stands partly allowed for statistical purposes in both the years. - SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER AND SHRI MANOMOHAN DAS, JUDICIAL MEMBER For the Appellant by : Ms. Amulya. K, C.A Shri Sriram Seshadri, C.A For the Respondent by : Shri D. Hema Bhupal, JCIT ORDER PER MANOMOHAN DAS, J.M: 1. Aforesaid two appeals by assessee for Assessment Years (AY) 2013-14 and 2014-15 arises out of the common order of learned Commissioner of Income Tax (Appeals)-15, Chen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the brochure/schedule of the training programmes with the description of contents without appreciating that the said details were specifically furnished before the CIT(A) during the course of appellate proceedings. 2.8 The CIT(A) ought to have appreciated that the charges paid to the non-resident will not fall within the purview of FTS as per the Double Taxation Avoidance Agreement. 2.9 Without prejudice to the above and assuming without admitting that even if the training is considered as technical services, the CIT(A) ought to have appreciated that the employees who received the soft skills training are not in a position to further impart such soft skills training to others and as such in the absence of 'make available' the same is not taxable as FTS as per the Double Taxation Avoidance Agreement. 3. The Appellant prays that directions be given to grant all such relief arising from the grounds of appeal mentioned supra as also all consequential relief thereto. 4. The Appellant craves leave to add, alter, amend, substitute, rescind, modify and/or withdraw in any manner whatsoever all or any of the foregoing grounds of appeal at or before the hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n acquiring the services to apply the technology contained therein or it consist of the development and transfer of a technical plan or technical design but excludes any service that does not enable the person acquiring the service to apply the technology contained therein. We find that the services as availed by the assessee is covered in none of these clauses. Therefore, the assessee could not be obligated to deduct TDS on the same. The cited decision of Ahmedabad Tribunal rendered on similar factual matrix squarely supports the case of the assessee. Accordingly, the impugned demand could not be sustained. We order so. No other ground has been urged before us. 7. The appeal stand allowed. Since the nature of payment as well as the payee is identical, taking consistent view in the matter, the impugned disallowance, in both the years, stands deleted. The ground thus raised stand allowed, in both the years. 4. Additional Grounds of Appeal 4.1 The assessee has filed identical additional grounds of appeals in both the years. In one of the ground, the assessee seeks deduction of education cess paid by the assessee while computing the income under normal provisions. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir attention to any refunds or reliefs to which they appear to be clearly entitled but which they have omitted to claim for some reason or other; (b) freely advise them when approached by them as to their rights and liabilities and as to the procedure to be adopted for claiming refunds and reliefs. It is reiterated the additional grounds raised by the Appellant are purely legal grounds requiring no further examination of facts. Hence, it is humbly requested that the additional grounds be admitted based on the order of the Hon'ble Supreme Court in the case of National Thermal Power Corporation. The Appellant further places reliance on the decision of the Hon'ble Jurisdictional High Court, in the case of Abhinitha Foundation Pvt Ltd. The Ld. AR further submitted that this claim was neither lodged in Income Tax Return nor raised before any of the lower authorities. The assessee was only recently aware of the tenable legal position that DDT liability is limited to rate of tax under Tax Treaty. The Ld. AR also referred to the decision of Hon ble Supreme Court of India in the case of National Thermal Power Corporation Ltd. vs. Commissioner of Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdinate authority may have in the matter. There is no god reason to justify curtailment of the power of the Appellate Assistant Commissioner in entertaining an additional ground raised by the assessee in seeking modification of the order assessment passed by the Income-tax Officer. This Court further observed that there may be several factors justifying the raising of a new plea in an appeal and each case has to be considered on its own facts. The Appellate Assistant Commissioner must be satisfied that the ground raised was bona fide and that the same could not have been raised earlier or good reasons. The Appellate Assistant Commissioner should exercise its discretion in permitting or not permitting the assessee to raise an additional ground in accordance with law and reason. The same observations would apply to appeals before the Tribunal also. 7. The view that the Tribunal is confined only to issues arising out of the appeal before the Commissioner of Income Tax(Appeals) takes to narrow a view of the powers of the Appellate Tribunal [vide, e.g., C.I.T. v. Anand Prasad (Delhi), C.I.T. v. Karamchand Premchand P. Ltd. And C.I.T. v. Cellulose Products of India Ltd . Und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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