Case: Director of Income Tax (International Taxation) Vs. Krupp Udhe Gmbh

ORAL JUDGMENT:1. Admit.2. The appeal by the Revenue against the order of the Income TaxAppellate Tribunal for assessment year 1998-1999 raises the following three questions of law :i) Whether on the facts and in the circumstances of the case and in law ITAT was justified in holding that charges towards reimbursement of expenses cannot be included in income ii) Whether when income is taxed on gross basis, non inclusion of charges towards reimbursement of expenses would be in violation of law as it would tantamount to taxation of income partly on net basis iii) Whether on the facts and in the circumstances of the case and in law the ITAT was justified in approving the deletion of levy of interest under Section 234B of the Act 3. The learned Counsel appearing on behalf of the Revenue has stated that the first and second question relate to the same issue namely whether reimbursement of expenses would be liable to be included in the income and hence they are taken up together.4. The assessee had entered into a contract with M/s.EID Parry (India) Limited (EID Parry) for the supply of a compressor for an Ammonia Storage Tank. The compressor was found to be in a damaged condition. The assessee deputed two technicians from Germany to the establishment of EID Parry in India. EID Parry remitted an amount of DM202,433,37 comprising of (i) Inspection fees in the amount of DM 170,701.37 for technicians; and (ii) Reimbursement of expenses for air tickets for travel between Germany and India in the amount of DM 11,732. The Commissioner of Income Tax, on the question of reimbursement of expenses, followed the decision of the Andhra Pradesh High Court in the case of Elkem Technology Vs. DCIT (250 ITR 164) and of the Kerala High Court in the case of Cochin Refineries Limited V/s. CIT (222 ITR 354) and held that the decision of the Assessing Officer to treat the reimbursement of expenses as part of taxable income was correct.5. In appeal, the Tribunal dealt with the issue as regards the payment of fees received by the assessee and of the reimbursement of expenses separately. In so far as the receipt of fees was concerned, the Tribunal noted that the assessee had deputed its technicians for inspection of the equipment. Inspection could not be done unless the personnel deputed had technical knowledge in respect of the equipment to be inspected. Consequently the fees received by the assessee were held to amount to fees for technical services. In so far as the issue of reimbursement is concerned, the Tribunal held that though there was a conflict between the judgment of the Kerala High Court, which was relied upon by the Commissioner of Income Tax (Appeals) and the judgment of the Calcutta High Court in the case of CIT V/s. Dunlop Rubber Company Limited (142 ITR 493), it would follow a view which was favourable to the assessee, consistent with the judgment in Vegetable Products Limited 88 (ITR 192).6. The question as to whether a reimbursement for expenses would form part of the taxable income is not resintegra in so far as this Court is concerned. In Commissioner of Income Tax V/s. Siemens Aktiongesellschaft (310 ITR 320 (Bom.), a Division Bench of this Court held that it was in agreement with the view taken by the Calcutta High Court in Dunlop Rubber Company Limited (supra) and by the Delhi High Court in Commissioner of Income Tax V/s. Industrial Engineering Products (Private) Limited (202 ITR 1014 ). The observations of this court in Siemens (supra) are as follows:33. That leaves us with the last contention as to whether the amounts by way of reimbursement are liable to tax. To answer that issue, we may gainfully refer to the judgment of a Division Bench of the Delhi High Court in CIT V. Industrial Engineering Products (P) Ltd., (supra). The learned Division Bench of the Delhi High Court was pleased to hold that reimbursement of expenses can, under no circumstances, be regarded as a revenue receipt and in the present case the Tribunal had found that the assessee received no sums in excess of expenses incurred. A similar issue had also come up for consideration before the Division Bench of the Calcutta High Court in CIT v. Dunlop Rubber Co. Limited (supra). The learned Division Bench was answering the following question : Whether, on the facts and in the circumstances of the case, the amounts received by the assessee (English company) from M/s. Dunlop Rubber Co. (India) Ltd., (Indian company) as per agreement dt. 29th Jan., 1957 constituted income assessable to tax On considering the issue the learned Bench noted that the Tribunal was of the view that what was recouped by the English company was part of the expenses incurred by it. The learned Court upheld the said finding. The learned Bench was pleased to hold that sharing of expenses of the research utilised by the subsidiaries as well as the head office organisation would not be income which would be assessable to tax. A similar view was taken in CIT v. Stewarts & Lloyds of India Ltd., (supra). Consequently, in view of the judgment in Siemens, the first and second issue would not raise any substantial question of law since they are covered against the Revenue.7. In so far as the third question is concerned, learned counsel appearing on behalf of the Revenue has fairly stated that it is covered against the Revenue by the judgment of the Division Bench in Director of Income Tax (International Taxation) V/s. NGC Network Asia LLC (2009)222 CTR 86 (Bom). In view of the statement, the third question would also not raise any substantial question of law.

Decision:
0[ds]6. The question as to whether a reimbursement for expenses would form part of the taxable income is not resintegra in so far as this Court is concerned. In Commissioner of Income Tax V/s. Siemens Aktiongesellschaft (310 ITR 320   (Bom.), a Division Bench of this Court held that it was in agreement with the view taken by the Calcutta High Court in Dunlop Rubber Company Limited (supra) and by the Delhi High Court in Commissioner of Income Tax V/s. Industrial Engineering Products (Private) Limited (202 ITR 1014  ). The observations of this court in Siemens (supra) are as follows:33. That leaves us with the last contention as to whether the amounts by way of reimbursement are liable to tax. To answer that issue, we may gainfully refer to the judgment of a Division Bench of the Delhi High Court in CIT V. Industrial Engineering Products (P) Ltd., (supra). The learned Division Bench of the Delhi High Court was pleased to hold that reimbursement of expenses can, under no circumstances, be regarded as a revenue receipt and in the present case the Tribunal had found that the assessee received no sums in excess of expenses incurred. A similar issue had also come up for consideration before the Division Bench of the Calcutta High Court in CIT v. Dunlop Rubber Co. Limited (supra). The learned Division Bench was answering the following questionon the facts and in the circumstances of the case, the amounts received by the assessee (English company) from M/s. Dunlop Rubber Co. (India) Ltd., (Indian company) as per agreement dt. 29th Jan., 1957 constituted income assessable to taxconsidering the issue the learned Bench noted that the Tribunal was of the view that what was recouped by the English company was part of the expenses incurred by it. The learned Court upheld the said finding. The learned Bench was pleased to hold that sharing of expenses of the research utilised by the subsidiaries as well as the head office organisation would not be income which would be assessable to tax. A similar view was taken in CIT v. StewartsLloyds of India Ltd.,in view of the judgment in Siemens, the first and second issue would not raise any substantial question of law since they are covered against the Revenue.7. In so far as the third question is concerned, learned counsel appearing on behalf of the Revenue has fairly stated that it is covered against the Revenue by the judgment of the Division Bench in Director of Income Tax (International Taxation) V/s. NGC Network Asia LLC (2009)222 CTR 86 (Bom). In view of the statement, the third question would also not raise any substantial question of law.