2011 (11) TMI 254 - AT - Income Tax

Applicability of 44BB - offshore installation of pipelines as a part of overall construction project in connection with extraction and production of mineral oils. - Held That - Laying pipeline amounts to infrastructure - 44BB is applicable for services and not for creation of infrastructure for such services. Tax Rate - This claim is based on the fact that the invoices raised by assessee on BG show that it has invoiced BG at 8% mark up on cost in respect of supply of goods and materials and that it was only to avoid litigation it had offered the entire revenues from such supplies to tax at a deemed profit rate of 10% u/s 44BB.- Rate of tax was accepted at 10% instead of 25%.

Summary

Issues:
1. Applicability of section 44BB of the Income-tax Act to income from services rendered.
2. Arbitrary estimation of taxable income at 25% of gross revenues.
3. Levy of interest under sections 234B and 234D of the Income-tax Act.

Issue 1 - Applicability of section 44BB:
The appellant contested the Assessing Officer's decision that income from services rendered was not covered by section 44BB of the Income-tax Act. The dispute arose from the nature of services provided to BG Exploration and Production India Limited for offshore pipeline installation. The Assessing Officer argued that as the appellant was involved in infrastructure construction and not exploration services, section 44BB did not apply. The Dispute Resolution Panel agreed with the Assessing Officer, stating that the contract was a works contract, not a service contract, and thus, not covered by section 44BB. However, in a subsequent assessment year, the DRP found that the activity fell under 'construction' and 'assembly projects,' not 'fees for technical services.' Due to the lack of a reasoned order and failure to consider relevant agreements, the ITAT set aside the DRP's decision and directed a fresh assessment considering the nature of activities in the relevant agreement.

Issue 2 - Arbitrary estimation of taxable income:
The Assessing Officer estimated the taxable income at 25% of gross revenues due to the rejection of section 44BB applicability. The DRP upheld this estimation, citing the absence of audited accounts and reasons provided by the appellant to challenge the figure. However, the ITAT found the lack of reasoning in the DRP's order and the failure to consider the relevant agreement, leading to the decision to set aside the order and remand the matter for a fresh assessment.

Issue 3 - Levy of interest under sections 234B and 234D:
The appellant challenged the levy of interest under sections 234B and 234D of the Income-tax Act. While the appellant did not make submissions on these grounds during the appeal, the ITAT noted that the levy of interest under these sections is mandatory. Consequently, the grounds challenging the interest levy were dismissed, but the DRP/AO was directed to allow any consequential relief while implementing the ITAT's findings.

In conclusion, the ITAT partly allowed the appeal for statistical purposes, setting aside the DRP's order and remanding the matter for a fresh assessment with detailed reasoning and consideration of the relevant agreement to determine the applicability of section 44BB and the estimation of taxable income.