M/S PHILIPS ELECTRONICS NEDERLAND B.V.,KOLKATA vs. D.C.I.T.(INTERNATIONAL TAXATION), CIRCLE-2(1), KOLKATA

O R D E R

PER SONJOY SARMA, JM:

ii. The Ld. AO and the Hon’ble DRP have, inspite of the Ld. AO accepting in the Remand Report, erred in not admitting the additional claim made by the Appellant during the course of the assessment proceedings and in thereby holding the amount

M/s. Philips Electronics Nederland B.V. A.Y. 2015-16 of Rs. 85,82,15,139/- received by the Appellant during the year under consideration from PIL and Preethi pursuant to the GSU is taxable in India. iii. Considering the facts and circumstances of the case and the law prevailing on the subject, the amount of Rs. 85.82,15,139/- received by the Appellant during the year under consideration is not taxable in India more so, when the AO himself accepts in the Remand Report dated 14 June 2019 that the services provided by the Appellant to PIL and Preethi do not 'make available' technical knowledge, skills, experience, etc. to the latter. iv. The Appellant submits that the 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, more so when the AO himself accepts by the appellant to PIL and Preethi do not ‘make available’ technical knowledge, skills, experience etc. to the latter.”

M/s. Philips Electronics Nederland B.V. A.Y. 2015-16 2.1. The ld. AR further submitted that while passing the impugned order the time of hearing by the authorities below without considering the facts and circumstances of the case mechanically dismissed the claim of the assessee by holding that the original return was filed by the assessee on 28.11.2015 and assessee failed to file revised return u/s 139(5) of the Act in support of its claim, hence the claim made by the assessee cannot be allowed. As such the impugned order passed by the DCIT (International Taxation) needed to be interference and direction may be given to accept the claim made by the appellant during the course of assessment proceedings. The ld. AR substantiate his claim to bring to our notice of order passed by the co-ordinate bench in the case of Howrah Mills Company Ltd. in and in similar situation relief was granted to assessee and where the limit for revising return u/s 139(5) had expired and the DRP had accepted the revised claim of the assessee. He brought to our notice by stretching in the contents (supra) para no. 18 & 19 held as under: “18. As far as ground no.2 raised by the revenue is concerned the facts are that the assessee in the return of income did not make any claim that receipts on account of carbon credit is not taxable. The facts are that the assessee in the return of income did not make any claim that receipts on account of carbon credit is not taxable but such a claim was made only in the course of assessment proceedings before the AO. The CIT(A) allowed the claim of the assessee. It is the plea of the revenue in ground no.2 that the claim that 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.

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 Court in the case of Jai parabolic Springs 306 ITR

42. (Delhi) has held that the appellate authorities under the Act, were free to consider a claim made by an Assessee even in the absence of a revised return of income and that the requirement for filing a revised return of income as laid down by the Hon’ble Supreme Court in the case of M/s. Philips Electronics Nederland B.V. A.Y. 2015-16 Goetz India Ltd. (supra) is applicable only when a claim is made contrary to the return of income before the AO. The Hon’ble Delhi High Court in the case of Bharat Aluminium 163 Taxman 430J, has inter-alia ruled that assessee can file revised computation in the course of ongoing assessment proceedings under the Act, without making recourse to revised return, despite the fact that time limit for revising return under section 139(5) had expired. In the light of the aforesaid decisions, we are of the view that the DRP was right in accepting the revised claim that sales tax remission received is capital receipt and not chargeable to tax.”