TMI Blog2015 (11) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... xation Avoidance Agreement, the receipts in the nature of reimbursement of expenses, cannot be treated as, fees for technical services - Decided in favour of assessee. - I. T. A. Nos. 726 /Ahd/ 2011 (assessment year 2007-08) and 418 /Ahd/ 2012 (assessment year 2008-09). - - - Dated:- 17-7-2015 - ANIL CHATURVEDI (Accountant Member) and S. S. GODARA (Judicial Member) Mrs. Vibha Bhalla for the appellant. Mrs. Ritika Agrawal for the respondent. ORDER The order of the Bench was delivered by 1. Anil Chaturvedi (Accountant Member).-These two appeals filed by the Revenue are against the order of the Commissioner of Income-tax (Appeals), Gandhinagar, Ahmedabad dated December 1, 2010 and November 11, 2011 for the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd : 4. The learned Commissioner of Income-tax (Appeals) has erred in law and on facts in not treating reimbursement of expenses as part of 'fees for technical services' under section 44D. 4. During the course of assessment proceedings, the Assessing Officer noticed that the assessee had undertaken various projects in pursuance of agreements with the Governments entered into after March 31, 1996 but before April 1, 2003. He also noticed that the assessee had received income by way of royalty or fees for technical services which were assessable under section 44D(b) of the Act. The Assessing Officer also noticed that the assessee has considered the amount of ₹ 5,40,05,878 as fees for technical services covered under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellate Tribunal, Cuttack Bench has decided in favour of the assessee in the assessment year 2002-03 on this issue when it confirmed the order of the Commis sioner of Income-tax (Appeals) on similar facts where reimbursement of expenses was held to be not part of 'fees for technical services'. The facts of the case in Cochin Refineries Ltd. v. CIT [1996] 222 ITR 354 (Ker) relied on by the Assessing Officer are distinguishable because in that case reimbursement of expenses was given where the services provided by the third parties were in the nature of 'fees for technical services' only which are reimbursed in that case. This is not the case in the present case. It has been submitted by the assessee that reimbursement of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the present case are identical to the facts of the case for the assessment year 2002-03 and the issue in the present case is directly covered in the assessee's favour by the decision of the hon'ble Income-tax Appellate Tribunal Cuttack Bench in the assessee's own case for the assessment year 2002-03. She thus supported the order of the learned Commissioner of Income-tax (Appeals). 7. We have heard the rival submissions and perused the material on record. The issue in the present case is with respect to computation of income under section 44D of the Act. The assessee's contention is that the amount of reimbursement is not to be considered as part of the income whereas the Revenue's contention is that while computi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,47,34,250, while taxing the 'fees for technical services', but he should include ₹ 2,77,779 being fluctuation of exchange rate, which is appurtenant to the fees for technical services . 8. The aforesaid decision of the Commissioner of Income-tax (Appeals) was upheld by the co-ordinate Bench of Cuttack Tribunal vide order dated January 18, 2008 in I. T. A. No. 140/Ctk/2006 (the copy of which is placed at pages 17 to 24 of the paper book). During the course of hearing, the Bench inquired from both the parties as to whether the aforesaid order of Cuttack Bench in the assessee's own case for the assessment year 2002-03 has attained finality or has been reversed by the higher authorities to which the learned authorised rep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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