TaxTMI 
TaxTMI 
2023 (3) TMI 1591
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....Rs.88,78,26,867 received by the Appellant during the year under consideration from Philips India Limited ['PIL'] and Preethi Kitchen Appliances Private Limited ['Preethi'] pursuant to the Global Service Unit Agreement ['GSU'] is taxable in India. 2. The Ld. AO and the Hon'ble DRP have erred in not admitting the additional claim made by the Appellant during the course of the assessment proceedings and in thereby holding the amount of Rs.88,78,26,867 received by the Appellant during the year under consideration from PIL and Preethi pursuant to the GSU is taxable in India. 3. Considering the facts and circumstances of the case and the law prevailing on the subject, the amount of Rs.88,78,26,867 received by the Appellant during the year under consideration is not taxable in India as the services provided by the Appellant to PIL and Preethi do not 'make available' technical knowledge, skills, experience, etc. to the latter. 4. The Appellant submits that the Ld. AO be directed to accept the claim made by the Appellant during the course of the assessment proceedings, and hold that the receipts are not taxable in India." 3. Brief fa....
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....ecision of the Supreme Court in the case of Goetze (India) Ltd. [(2006) 157 Taxman 1]. DRP Directions: 3.1 This is a general ground subsumed in the other ground considered separately and needs no separate directions. 4. Ground No.2 Taxability of payments received from PIL and Preethi pursuant to GSU is bad in law and on facts The Ld. AD erred in taxing the payments of Rs. 87,98,10,834 and Rs. 80,16,033 received from PIL and Preethi pursuant to GSU without appreciating that the said payments ought not to be taxable under Article 12(5) of the India-Netherlands DTAA as the Company does not 'make available' technical knowledge, experience, skill, etc. to PIL/Preethi. DRP Directions: 4.1 Identical issue was decided against the assessee in AY 2015- 16 wherein DRP had discussed the issue in detail vide Para 4.1 to 4.13 of the directions dated 05.07.2019 and had concluded at para 4.13 as under: "4.13 In view of the above facts, Panel is of the view that the assessee has made a new claim vide a letter filed before the AO during the assessment proceedings. We are also of the view that the ratio of the decision of the judgement in the case ....
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....sion was restricted to the power of assessing authority to entertain a claim for deduction otherwise than by a revised return, and did not impinge on the power in the appellate tribunal u/s. 254 of the I. T. Act, 1961." 6. Per contra, ld. CIT, DR placed reliance on the order of Ld. DRP and the Ld. AO. 7. We have heard the rival contentions and perused the material placed on record. Admittedly, it is a fact on record that issue raised in the present appeal is identical to what has been dealt in the immediately preceding AY 2015-16 in assessee's own case, except for variation in the amount. From the order of Ld. DRP, we have already noted that it has issued directions by placing its observations recorded for AY 2015-16 (extracted above). We also note from the remand report though for AY 2015-16 that Ld. AO has accepted the fact that services rendered by the assessee are not in the nature which 'make available' any technical knowledge, experience, skill etc. to the two entities. Further, in the present case before us also, the claim was made in the course of assessment proceeding which was rejected by the Ld. AO by referring to the decision of Hon'ble Supreme Court in the case o....
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.... carbon credit is not chargeable to tax being capital receipt was made by the Assessee without filing the revised return of income and therefore ought not to have been accepted taking up for consideration by CIT(A) in view of the decision of the Hon'ble Supreme Court in the case of Goetz India Ltd. 289 ITR 323(SC) wherein it was held that the AO is not competent to entertain any claim which is not made either in the return or by filing a revised return. 19. On this issue we have heard the rival submissions and are of the view that there is no merit in this ground raised by the revenue. The CIT(A) being the First Appellate Authority has the power to entertain a new claim even in the absence of a revised return of income. The Supreme Court in case of Goetze (India) Ltd. (supra) has clarified that "the decision was restricted to the power of the assessing authority to entertain a claim for deduction otherwise than by a revised return, and did not impinge on the power of the Appellate Tribunal under section 254 of the Income-tax Act, 1961". This has been interpreted in several judicial pronouncements as applicable even to the first appellate authorities. The Hon'ble Delhi High....