THE DIRECTOR OF INCODME TAX (INTERNATIONAL TAXATION MUMBAI vs. KRUPP UDHE GMBH
What did the High Court hold?
The Tribunal held that the first two questions, concerning the inclusion of reimbursement of expenses in income, did not raise any substantial question of law and were covered against the Revenue. This was based on the Bombay High Court's judgment in CIT vs. Siemens Aktiongesellschaft, which agreed with the Calcutta High Court in CIT vs. Dunlop Rubber Company Limited and the Delhi High Court in CIT vs. Industrial Engineering Products (Private) Limited. These judgments held that reimbursement of expenses cannot, under any circumstances, be regarded as revenue receipt, especially when no sums in excess of expenses incurred were received. The Tribunal further held that sharing of expenses, such as for research or head office organization, would not constitute taxable income. For the third question regarding the deletion of interest under Section 234B, the Revenue's counsel conceded that it was covered against them by the Division Bench judgment in Director of Income Tax (International Taxation) vs. NGC Network Asia LLC. Consequently, the appeal was dismissed.
What were the facts?
The Revenue (Director of Income Tax, International Taxation) appealed against an order of the Income Tax Appellate Tribunal (ITAT) for assessment year 1998-1999. The assessee, Krupp Udhe GmbH, had entered into a contract with EID Parry (India) Limited for a compressor. Following a damaged condition, the assessee deputed technicians from Germany. EID Parry remitted DM 202,433.37, comprising DM 170,701.37 for technician inspection fees and DM 11,732 for air ticket reimbursement. The Commissioner of Income Tax had treated the reimbursement of expenses as taxable income, relying on High Court decisions. The ITAT, however, distinguished between inspection fees (treated as fees for technical services) and reimbursement of expenses, holding the latter not to be taxable income.
What were the issues?
The Tribunal had to decide three questions of law: 1. Whether, on the facts and in the circumstances of the case and in law, the ITAT was justified in holding that charges towards reimbursement of expenses cannot be included in income? 2. Whether, when income is taxed on a 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 a net basis? 3. 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? The Revenue argued that questions 1 and 2 relate to the same issue of whether reimbursement of expenses is includible in income. The assessee's contentions are not explicitly recorded for these issues, but the ITAT's decision implies the assessee argued that reimbursement of expenses should not be taxed. For the third issue, the Revenue conceded that it was covered against them.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
ORAL JUDGMENT (Per Dr.D.Y. Chandrachud, J.)
Admit.
The appeal by the Revenue against the order of the Income Tax CNR No : HCBM020119882009 Appellate Tribunal for assessment year 19981999 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 ?
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.
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 of the Kerala High Court in the case of Cochin Refineries Limited V/s. CIT2 and held that the decision of the Assessing Officer to treat the reimbursement of expenses as part of taxable income was correct.
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 Limited3, it would follow a view which was favourable to the assessee, consistent with the judgment in Vegetable Products Limited4. 1 250 ITR 164 2 222 ITR 354 3 142 ITR 493 88 ITR 192
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 Aktiongesellschaft5, 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) Limited6. 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 5 310 ITR 320 (Bom.)
202 ITR 1014 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.
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 LLC7. In view of the statement, the third question would also not raise any substantial question of law.
The appeal is accordingly dismissed. There shall be no order as to costs. (J.P. Devadhar, J.) (Dr.D.Y. Chandrachud, J.)
(2009)222 CTR 86 (Bom)
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