2023 (7) TMI 1627

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....22 (Revenue's Appeal) and ITA No. 1141/Bang/2022 (assessee's appeal). The relevant Assessment Year 2017-18. 2. We shall first examine the error that has crept in the Revenue's appeal. 3. ITA No.1115/Bang/2022 (Revenue's appeal) In the above appeal, ground Nos. 1 to 5 were dealing with the deletion of addition of Rs. 2775,52,85,030/- made by the AO by treating the business loss suffered by the assessee as capital expenditure incurred for generation of alleged marketing intangibles. The said grounds were dismissed by the Tribunal vide paragraphs 15 and 16 of the impugned order dated 09.03.2023. While recording the facts relevant for the aforesaid grounds of appeal, the Tribunal in para 11 of the appellate order has recorded as under:....

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....hile disposing off ground Nos. 1 to 3 of the assessee's appeal on deductibility of ESOP expenditure, the Tribunal, while recording the submissions of the assessee in para 6, had inadvertently recorded in para 6(ii) as under: "It is an unascertained liability and not a contingent liability" 9. It was stated the submission of the assessee was to the effect that ESOP expenses were ascertained liability and not contingent liability. It was stated that the above inadvertent typographical error may be rectified. 10. The learned DR did not have objections with regard to the correction of the above error. Accordingly, we correct the para 6(ii) as under: "It is an ascertained liability and not a contingent liability" 11. T....

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....hands of the recipient. Thus, once it is established that reimbursement made by the assessee to its holding company viz., FKS, is not chargeable to tax under the Act. Therefore, the assessee cannot be made liable to withholding tax on the reimbursement under section 195 of the Act. Further, the Hon'ble Apex Court in the case of GE India Technology Centre Pvt. Ltd., Vs. CIT (2010) 327 ITR 456 (SC), while interpreting the provisions of 195 of the Act had categorically held that if the payment does not contain an element of income, the payer cannot be held liable to deduct tax on such payments under section 195 of the Act. The above said principle has been consistently followed by the various judicial pronouncements as under: ● ....