TMI Blog2019 (7) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... pted by the Department in respect of which intimation is sent u/s 143(1) is indeed maintainable. 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 u/s 264 would be maintainable vis-a-vis an intimation u/s 143(1), by the Assessee. Whether the intimation u/s 143(1) was prejudicial to the interest of the Assessee? - It must be noted here that although the tax calculated as payable in the return filed and accepted by the Department by sending intimation u/s 143(1) is nil, it cannot be said that no prejudice is caused to the Assessee thereby. Assessee has voluntarily paid tax at the rate of 20% in terms of the Indo Spain DTAA as tax on FTS and therefore there was no further tax to be paid at the time of filing of the return. However, it is not even denied by the Department that the Petitioner committed a mistake and should have paid tax at 10%. Even though, this extra 10% paid by the Petitioner was of its own volition, it was indeed prejudicial to the Assessee/Petitioner. Consequently, all the ingredients of Section 264 stand attracted. It is accordingly held that a revision petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 now known as TDK Electronics Components S.A. and EPCOS India Pvt. Ltd. is now known as TDK India Private Limited. However, no application for amending the cause title in the present petition has been filed. 4. The brief facts are that during the AY in question the Petitioner earned service fees in the sum of ₹ 3,02,95,333/- for providing management related services to EIPL (now known as TDK India). The provision of management services was categorised as an international transaction under Section 92B of the Act and was reported by the Accountant in Form No. 3CEB. It is stated that the aforementioned income being in the nature of Fees for Technical Services (FTS) was taxable at 25% under Section 115A of the Act and at the rate of 20% under Article 13 of the DTAA between India and Spain. The AO by an intimation dated 10th M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see in terms thereof. It was observed by Respondent No.2 that if the Assessee was of the view that its income was chargeable to tax at 10% it should have mentioned the same in its return of income or should have subsequently filed revised return . It was held that Section 264 of the Act cannot be invoked to rectify the Assessee s mistake, if any. 10. Although Respondent No.2 in the impugned order noted the decision of this Court in Steria India Private Limited (supra), he observed that in view of the judgment of the Supreme Court in Union of India v. Azadi Bachao Andolan 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) of the Act. In answering the question in affirmative this Court in Vijay Gupta (supra) observed as under: The Commissioner further erred in rejecting the application under section 264 holding that intimation under section 143(1) could not be regarded as an order and was thus not amenable to revisionary jurisdiction under section 264 of the Act. The Intimation under section 143(1) is regarded as an order of the purposes of section 264 of the Act. CIT v. K.V. Manakaram [2000] 245 ITR 353/111 Taxman 439 (Ker.), Assam Roofing Ltd. vs. CIT [2014] 43 taxmann. com 316 (Gau) and S.R. Koshti v. CIT [2005] 275 ITR 165/146 Taxman 335 (Guj.). He failed to appreciate that the petitioner was not only impugning the intimation under section 143(1) but also the rejection of the application under section 154 of the Act. 15. It must be noted here that in Vijay Gupta the Court took note of the decision of the Supreme Court in Asstt. CIT v. Rajesh Jhaveri Stock Brokers Private Limited (supra). 16. Indeed, it is seen that there are at least three High Court decisions, referred to by this Court in Vijay Gupta (supra) which have taken an identical view, name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been filed against the said decision the fact remains that the operation of the said judgment is not stayed by the Supreme Court. Being the jurisdictional High Court, as far as the CIT who issued the impugned order is concerned, he was bound by the decision 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 allowed in the above terms. No order as to costs. CM Appl. No. 40603/2018 (Exemption) 23. Exemption allowed, subject to all just exceptions. - - TaxT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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