2013 (11) TMI 418 - AT - Income Tax

Tribunal rules in favor of assessee, excludes service tax from taxable income

Veolia Eau-Compagnie Generale Des Eaux C/o M/s CNGSN & Associates Versus The Addl. Director of Income-tax International Taxation

The Tribunal ruled in favor of the assessee on all substantive issues, including excluding service tax and reimbursements from taxable income, granting ... Treatment of service tax collected – The assessee has collected service tax on fees received - Held that:- Following Chowringhee Sales Bureau (P) Ltd. vs CIT [1972 (10) TMI 4 - SUPREME Court] - Reimbursement of service tax cannot form part of the taxable income of the assessee - Fee for technical services is for the service rendered by the assessee - Service tax is not an expenditure incurred by the assessee - It is a statutory levy on the person who avail the service from the assessee - Benefit of section 28 to 44C would not be available to the assessee and the provisions of section 44D would apply – Decided in favour of assessee. Reimbursements towards car hire charges, international air tickets and equipments procurement – Held that:- Reimbursement of car hire charges, international air tickets and equipments procurement expenses would not be grossed to tax at the flat rate of 20% - The amount being reimbursement expenses earlier incurred by the assessee would not constitute assessee’s income by way of fees for technical services – Following ACIT vs Real Image Media Technologies (P) Ltd [2007 (12) TMI 263 - ITAT MADRAS-C] – Decided in favour of assessee. Exemption by the assessee u/s 10(6A) – Income-tax paid by service receiver on the remuneration paid to the assessee for providing consultancy - Held that:- The definition of ‘infrastructure facility’ can be imported in section 10(6A) - The assessee had furnished consultancy to Water Supply Project which is included in ‘Infrastructure project’ as per Explanation 2 to section 80IA(4) – Following Louis Berger International Inc. [2010 (6) TMI 524 - ITAT, HYDERABAD] - Development of infrastructure falls within the Industrial Policy of Government of India - Approval of the Government is not a pre-requirement for claiming exemption u/s 10(6A) – Fee received by the assessee towards technical services/ consultancy would fall under Article 12 and not under Article 7 - Decided in favour of assessee. Issues Involved:1. Legality of reassessment proceedings under Section 147/148.2. Treatment of service tax collected as income.3. Treatment of reimbursements for car hire charges, international air tickets, and equipment procurement as income.4. Claim of exemption under Section 10(6A) for income-tax borne and paid by CMWSSB.5. Charging of interest under Section 234B.Detailed Analysis:1. Legality of Reassessment Proceedings under Section 147/148:The assessee-company challenged the reopening of assessment under Section 147/148, arguing it was based on audit objections, amounting to a change of opinion. The Hon'ble High Court ruled that out of five reasons for reopening, only two were based on a change of opinion, while the remaining were valid. Thus, the Tribunal upheld the validity of the reopening, stating that even if one reason is valid, the action under Section 147/148 stands justified.2. Treatment of Service Tax Collected as Income:The assessee contended that service tax collected from CMWSSB should not be treated as its business receipt, as it is a statutory levy with the government having an overriding title. The Tribunal agreed, referencing decisions in ACIT vs Real Image Media Technologies (P) Ltd and ACIT vs Louis Berger International Inc., which held that service tax is not part of the fee for technical services and should not be included in gross receipts under Section 115A read with Section 44D. Consequently, the Tribunal allowed the assessee's claim, excluding the service tax from taxable income.3. Treatment of Reimbursements as Income:The assessee argued that reimbursements for car hire charges, international air tickets, and equipment procurement should not be treated as income. The Tribunal concurred, citing that these reimbursements do not constitute income by way of fees for technical services and are not subject to tax under Section 115A read with Section 44D. The Tribunal referenced similar decisions in Real Image Media Technologies (P) Ltd and Louis Berger International Inc., thus deleting the addition and ruling in favor of the assessee.4. Claim of Exemption under Section 10(6A):The assessee claimed exemption under Section 10(6A) for income-tax paid by CMWSSB on its remuneration. The Assessing Officer denied this, citing lack of Central Government approval of the agreement. The Tribunal found that the project was an 'Infrastructure Project' under the Industrial Policy and Section 80IA(4), thus not requiring separate approval. The Tribunal referenced ITAT Hyderabad's decision in Louis Berger International Inc., which supported the assessee's claim. Consequently, the Tribunal allowed the exemption and deleted the addition.5. Charging of Interest under Section 234B:The Tribunal noted that charging interest under Section 234B is mandatory but acknowledged that the assessee is entitled to consequential relief based on the above findings. Thus, this issue was rendered academic and disposed of accordingly.Conclusion:The appeal was allowed, with the Tribunal ruling in favor of the assessee on all substantive issues, including the exclusion of service tax and reimbursements from taxable income, granting exemption under Section 10(6A), and addressing the mandatory nature of interest under Section 234B. The reassessment proceedings were upheld as valid based on the High Court's ruling.