WILHEMSEN SHIP MANAGEMENT (I) P. LTD,MUMBAI vs. DCIT 8(3), MUMBAI

Order u/s.254(1)of the Income-tax Act,1961(Act) लेखा सद�य सद�य, राजे�� राजे�� केकेकेके अनुसार अनुसार/ PER Rajendra A.M.- लेखा लेखा लेखा सद�य सद�य राजे�� राजे�� अनुसार अनुसार Challenging the order dated 3.9.14 of CIT(A)- 18, Mumbai the assessee had filed the present appeal.Assessee-company,engaged in the business of manning, ship management, marine consultancy, maritime training, etc.,filëd its return of income on 25.09.2010 declaring a total income of Rs.2.26 crores.The Assessing Officer(AO)completed the assessment u/s. 143(3) of the Act,on 30.01.2014,determining its income at Rs.3.22 crores. 2.First Ground of appeal is about disallowance of advances and bad debts written off, amount -ing to Rs.4.91 lakhs.During the assessment proceedings,the AO found that the assessee had claimed a sum of Rs. 3.04 lakhs as bad debts written off and a further sum of Rs. 1.87 lakhs as advances written off in its P&L account. She called for the breakup of the amounts in question, On verification it was observed by the AO that amounts written off by the assessee were not offered as income in the earlier years. She held that disputed amounts would not fall under the category of debts.The assessee was directed to justify the claim made by it in accordance with the conditions specified u/s. 3 6(2) r.w.s. 36(i)(vii) of the Act.After consider - ing the submissions of the assessee the AO held that advances paid by the assessee could not be treated as income and therefore, could not be held to be unrecovered debt, that no TDS was deducted at the time of making the advances, that payment made by way of deposits / advances were with the intention to obtain benefits of enduring nature, that the nature of loss 1

3.Second Ground of appeal pertains to disallowance on account of non deduction of TDS u/s. 195 of the Act.During the course of assessment proceedings,the AO found that certain sums were paid to the non-resident companies/firms on account of various expenses debited to P&L account.She directed the assessee to clarify as to whether it had deducted tax at source while making payments as per provisions of section 195 of the Act. The assessee submitted that expenses in question were in the nature of reimbursement and therefore, no TDS u/s. 195 of the Act was liable to be deducted. The AO observed that the assessee had termed the payments as reimbursements, that same had income embedded in it, that the expenditure was incurred for services rendered or for benefits obtained by it, that it had incurred cost for obtaining software and licenses, that the purchases qualified as royalty payment as per section 9(1) (vi) of the Act,that it had made the impugned payment for obtaining specific services in consideration for the use of such information concerning industrial and commercial experien - ces,that it had not produced any non deduction certificate to establish that tax was not to be deducted at source while making payments to non residents.Referring to the case of Van Oord Acz India (P.) Ltd.(1 121TD79) the AO held that while making the payments to non residents the payer could not escape liability of deducting tax unless a certificate for AO is obtained for non deduction of tax at source, that the assessee was not expected to step into the shoes of the AO to examine as to whether the receipt in the hands of recipients was income or that whether it was liable to pay tax thereon, that the assessee had not furnished any evidence to prove that the payments were not paid to third parties, that it should have affected the TDS before making the payments.Accordingly, the expenditure debited, of Rs.69.90 lakhs was disallowed as per the provisions of section 40(a)(i).

3.1.Aggrieved by the order of the AO, the assessee preferred an appeal before the FAA and made elaborate submissions.Before him, it was argued that out of the six items five items were not falling under TDS provisions,that pure reimbursements were not attracting the TDS provisions,that it referred to the case of Siemens AG (31 01TR320)before the AO,that the AO had wrongly made the disallowance.The FAA after hearing the rival submissions held that the assessee had made payment of Rs.60,90,206/- to non-resident companies,that the expendi -ture was in the nature of subscription fee for office licence /reimbursement of training cost, travel cost and miscellaneous expenses that the assessee was liable for deducting tax on these

61 59/M/14-Wi!helmsen SM(I)PL payments because same were in the nature of royalty,that as per the provisions of section 1 95(2)(iii) the assessee was liable to obtain certificate from AO for non deduction of tax at source, deducting tax at lower rate, that it had not produced such a certificate,that the assessee had failed to submit any application before the AO for obtaining the certificate.He referred to the case of Transmission Corporation of A.P. Ltd. and held that the assessee had violated the provisions of Section 195 of the Act and that the AO had rightly made the disallowance u/s. 40(a)(i) of the Act. 3.2.The Authorised Representative (AR),before us,argued that reimbursement of expenses could not be regarded as a revenue receipt,that except for the first item of reimbursement all other payments were not falling under category of revenue receipt. He referred to the cases of GE India Technology Centre (P)Ltd.(3271TR456) ;Samsung (64 DTR 178); Airports Autho - rity of India.(304 ITR 216) ;and Reliance Industries Ltd. (47 CCH 94).The DR supported the order of the FAA. 3.3.We have heard the rival submissions and perused the material before us.We find that the assessee had argued that the payments were reimbursement,that no deduction was to be made with regard to the reimbursement payments made by it,that the AO and the FAA had relied upon the retrospective amendment made to the section 40(a)(i)of the Act for making the disallowance.But,they did not take notice of the fact the amendment was curative in nature. Considering the fact that payments in question were reimbursements, we reverse the order of the FAA and decide the issue in favour of the assessee.Here,we would like to refer to the matter of Siemens Aktiongesellschaft of the Hon'ble'ble Bombay High Court.In that case the Hon'ble Court has held as under: "57. 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 Projects P. Ltd. [1993] 202 ITR 1014. 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. Ltd. [1983] 142 ITR 493 (Cal). 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 MIs. Dun lop Rubber Co. (India) Ltd. (Indian company) as per agreement dated July 29, 1957, constituted income assessable to tax?"

6159/M114-Wilhelmsen SM(J)PL 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. Stewards and Lloyds of India Ltd. [1987] 165 ITR.416.