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TMI Blog2019 (7) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner's application under Section 264 of the Income Tax Act, 1961 ('Act'). 2. In the said petition, the Petitioner had prayed for necessary directions to the Assessing Officer (AO) to consider permitting the Petitioner to revise its return of income for Assessment Year (AY) 2014-2015 and paying tax at 10% on its earnings for provision of management services to its associated enterprises EPCOS India Pvt. Ltd. (EIPL) instead of 20% in terms of Article 13 of the Double Taxation Avoidance Agreement ('DTAA') entered into between India and Spain. 3. It should be noted at the outset that in the written note of arguments submitted to the Court it is indicated that the Petitioner, which was formerly known as EPCOS Electronic Components S.A., is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Petitioner as well. 6. A second mistake purportedly committed by the Petitioner was in paying surcharge of Rs. 1,15,345/- and education cess of Rs. 1,76,478/- aggregating to Rs. 2,91,823/- which is not required to be paid as the tax rate under the DTAA is a final rate inclusive of surcharge and cess. 7. This led the Petitioner to file the revision petition under Section 264 of the Act on 16th January, 2017 before Respondent No.2, seeking to revise the order under Section 143 (1) of the Act claiming it to be prejudicial to the Petitioner's interest. The consequential relief was for grant of refund of the excess tax paid by the Petitioner. 8. It must be mentioned here that in support of its plea that the rate of tax should be 10% and not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndolan 263 ITR 706 (SC) a notification was necessary for tax payers to claim benefits under the DTAA. As far as the decision of this Court in Steria India (supra) was concerned, Respondent No.2 observed that the issues raised in the decision in Azadi Bachao Andolan were not raised before this Court and further that the department had filed a Special Leave Petition in the Supreme Court against the judgment of this Court in Steria India Private Limited. 11. This Court has heard the submissions of Mr. Kamal Sawhney, learned counsel appearing for the Petitioner and Mr. Ruchir Bhatia, learned counsel appearing for the Revenue. 12. The first question that arises is whether a revision petition under Section 264 of the Act is maintainable to rect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order been passed under Section 143(3) of the Act. 14. The context in the present case is different. Here there is no attempt by the Revenue to re-open the assessment by invoking Sections 147 and 148 of the Act. The context here is the Assessee realising the mistake made by it while filing the return of paying a higher rate of tax. In such a context the intimation received by the Petitioner from the AO accepting the return under Section 143 (1) of the Act would partake the character of an order for the purpose of Section 264 of the Act. The question in Vijay Gupta vs. CIT Delhi (supra) was precisely whether a petition under Section 264 of the Act was maintainable against an intimation under Section 143(1) of the Act. In answering the quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der' the only limited context is that of Section 264 of the Act. In the context of Section 147 and 148 of the Act it may have a different connotation. However, the fact remains that the consistent view of the High Court has been that for the purposes of Section 264 of the Act a revision petition seeking rectification of the return accepted by the Department in respect of which intimation is sent under Section 143(1) of the Act is indeed maintainable. 17. This Court therefore disagrees with the view expressed by the CIT i.e. Respondent No.2 in the impugned order and holds that a revision petition under Section 264 of the Act would be maintainable vis-a-vis an intimation under Section 143(1) of the Act, by the Assessee. 18. The next issue i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision of this Court. 20. The Petitioner has sought a clarification regarding the erroneous payment of the surcharge. Indeed the Court finds that the payment of tax on FTS under the DTAA included surcharge and cess etc. There was no requirement that once the tax rate at the appropriate slab was paid, to separately pay the surcharge and cess. 21. For the aforementioned reasons, the Court quashes the impugned order passed by the Respondent No.2 and directs the Respondents to permit the Assesee to rectify its return by paying tax on FTS at 10%. The excess amount of tax, including the surcharge and cess paid shall be refunded to the Petitioner along with the interest due thereon, not later than eight weeks from today. 22. The petition is al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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