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TMI Blog2024 (7) TMI 1048X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed this decision. DR could not show us any reason as to why the above decision should not be followed. Accordingly, respectfully following the decision of the Coordinate Bench in the assessee s own case, we confirm the order of the Learned CIT-A in deleting the disallowance of demurrage charges paid by the assessee. Accordingly, ground No.1 of the appeal is dismissed. Disallowance of reimbursement of salary paid to seconded employees on account of non-deduction of tax at source - We find that the issue first arose in the case of the assessee in [ 2019 (10) TMI 972 - ITAT MUMBAI ] for assessment year 2010-11 where the Coordinate Bench has dealt with the issue in paragraphs 15 16 and deleted the addition. The year has relied upon the decision in the case of Burt Hill Design Pvt. Ltd. [ 2017 (3) TMI 1515 - ITAT AHMEDABAD ] CIT-A has followed the decision of the Coordinate Bench in deleting the disallowance. Therefore, we do not find any infirmity in the order of the CIT-A. Accordingly, ground No.2 of the appeal of the Assessing Officer is dismissed, holding that no tax is required to be deducted on reimbursement of salary to seconded employees. Thus, the appeal of the Assessing Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... areholders ought to have been paid @ 10% in terms of Article 11 of the India France tax treaty which has been further reduced to 5% in view of Para 7 of the Protocol between India and France in view of benefit of Most Favoured Nation clause read with tax treaty between India and Slovenia is available against the rate of 20.36% specified under section 115-O of the Act. Thus, the assessee is asking for a refund of excess dividend distribution tax paid of Rs. 11,68,82,865/-. 04. The brief facts of the case show that the assessee is engaged in importing and reselling Liquefied Petroleum Gas and certain solvents. It is also manufacturing and marketing industrial and automotive lubricants. It filed its return of income on 30/11/2017 at a total income of Rs. 120,94,42,340/-. The assessee has also entered into several international transactions. The case of the assessee was selected for scrutiny on transfer pricing risk parameters. The TPO did not disturb the arm s length price of international transaction. The Learned Assessing Officer found that the assessee has paid demurrage charges of Rs. 2,48,16,533/- on which no tax is deducted at source. He further found that the assessee has reimb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee by deleting the disallowance of demurrage charges. Accordingly, he submitted that there is no requirement of deduction of tax at source on demurrage charges under section 195 of the Act and therefore, the disallowance is correctly deleted. 08. With respect to reimbursement of expenses of seconded employees, he submitted that this issue is also squarely covered in favour of the assessee by the decision of the Coordinate Bench in ITA No.1294/MUM/2017 filed by the Revenue for assessment year 2011-12, order dated 2/11/2019. He submitted that as per paragraph 12 of the above order, it was held by the Coordinate Bench that there is no income chargeable to tax in India. He further referred to identical issue in the case of the assessee in ITA No.4300/MUM/2016 while deciding issue No.1 at paragraph 15 of that order. He submits that identical set of agreement is in existence. Accordingly, both the issues are covered in favour of the assessee. 09. We have carefully considered the rival contentions and perused the orders of the lower authorities. We have also perused the orders of the Coordinate Bench in the assessee s own case for earlier assessment years where identical issue arose and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a and Slovenia read with MFN clause of India-France DTAA? 2. Whether on the facts and in circumstances of the case and in law, the Ld. CIT (A), NFAC erred in adjudicating the ground to refund excess DDT and giving the directions without appreciating that the appeal is against the order u/s. 143(3) and not against any order u/s.237 of the Act? 3. Whether on the facts and in circumstances of the case and in law, the Ld. CIT (A), NFAC ought not to have allowed the ground of granting excess refund of DDT when the A.O. has not passed any order u/s. 237 denying the refund of excess DDT? 4. Whether the Ld. CIT (A), NFAC was right in allowing the ground of refunding excess DDT without dealing with the claim of refund on the basis of contentions raised by the assessee? 5. Whether the Ld. CIT(A), NFAC erred in allowing the ground of refunding of excess DDT by not taking into cognizance the decision of Hon'ble Bombay High Court in the case of Godrej Boyce Mfg. Co. Ltd. 328 ITR 81(Bombay) wherein it was held that when section 115-0 specifically states that the additional tax is on the profits distributed as dividend, there is no reason to hold that the additional income-tax is a tax on div ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest under section 234C of the Act. The claim of the assessee is that dividend under consideration is taxable @ 5% only. The facts show that the assessee has declared a dividend of Rs. 73,25,32,504/-. The assessee has two shareholders who are resident of France. The dividend distribution tax was worked out under section 115 of the Act @ 20.361% at Rs. 14,91,26,382/-. The claim before the Learned CIT-A was that such dividend is chargeable to tax @5% as per double taxation avoidance agreement between India and Slovenia read with Most Favoured Nation clause between India, France and Slovenia. Therefore, the excess tax paid by the assessee @ 20.361% - 5% is refundable. 15. The Learned CIT-A decided this issue and for statistical purposes allowed the ground raised by the assessee. He directed the Learned Assessing Officer to give credit for dividend distribution tax after verification of the return of income. In case the claim of the assessee is not allowable, a speaking order should be passed. 16. Therefore, the Assessing Officer as well as the assessee, both are aggrieved with the above order. The assessee is aggrieved for the reason that the Learned CIT-A should have directed for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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