2012 (8) TMI 636 - AT - Income Tax

Applicability of section 44BB(1) - fee for technical services. - held that - Tribunal in the case of CGG Veritas Services SA (2012 (4) TMI 280 - ITAT DELHI) has propounded four categories which will govern the fee for technical services. The assessee has not given up its right rather in order to save time it has agreed that issue is covered against it which is to be challenged. He pointed out a that 44DA is not applicable in the present year. All other categories do not apply upon the assessee Therefore assessee s income is to be assessed u/s 44BB(1) as per the order of the Tribunal. On the other hand case of the revenue is that conclusively neither the Ld. DRP nor the Ld. AO has held that assessee has a permanent establishment in India. Impliedly AO has propounded that income of the assessee is to be assessed u/s 115A. No categorical finding has been recorded either by Ld. DRP or by the Ld. AO. Taking into consideration the case of the assessee that it has set up various project offices in India which constitute permanent establishment we deem it appropriate to remit this issue to the file of AO for adjudication afresh.

Issues Involved:
1. Computation of income by the AO.
2. Applicability of section 44BB to seismic data acquisition and onboard processing services.
3. Classification of services as fee for technical services (FTS).
4. Nature of services under the definition of 'mining or like project'.
5. Applicability of amendments to section 44BB and section 44DA.
6. Application of principles from the case of Geofyzika Torun Sp zo o.
7. Credit for taxes withheld.
8. Levy of interest under sections 234B and 234C and initiation of penalty proceedings under section 271(1)(c).

Detailed Analysis:

1. Computation of Income by the AO:
The assessee contested the AO's computation of income at Rs. 2,68,74,62,560 as opposed to the returned income of Rs. 26,87,46,256. The AO's assessment was based on the view that the income should be treated as fee for technical services (FTS) taxable under section 115A read with section 9(1)(vii), rather than under the presumptive rate of 10% on gross receipts under section 44BB.

2. Applicability of Section 44BB:
The AO/DRP held that section 44BB does not apply to seismic data acquisition and onboard processing services. The Tribunal referenced the case of CGG Veritas Services SA, where similar services were deemed FTS and not covered under section 44BB, emphasizing that the services provided were technical in nature and not directly involved in 'mining or like project'.

3. Classification as Fee for Technical Services:
The AO/DRP classified the services rendered by the assessee as FTS, making them liable to tax under section 115A. The Tribunal upheld this classification, noting that the services involved technical expertise and were not part of mining operations directly.

4. Nature of Services Under 'Mining or Like Project':
The AO/DRP concluded that the services did not qualify as 'mining or like project' under the proviso to section 9(1)(vii). The Tribunal agreed, citing that the activities of seismic data acquisition and processing do not equate to mining or similar projects, which involve extraction or production activities.

5. Applicability of Amendments to Section 44BB and Section 44DA:
The AO/DRP held that amendments to section 44BB and section 44DA by the Finance Act, 2010, were clarificatory and applicable retrospectively. The Tribunal, referencing the CGG Veritas case, disagreed, stating these amendments are not clarificatory and apply prospectively from the assessment year 2011-12.

6. Application of Principles from Geofyzika Torun Sp zo o:
The assessee argued that the principles from the case of Geofyzika Torun Sp zo o should apply. The Tribunal noted that the DRP acknowledged the similarity of facts but did not apply the principles from that case, leading to the assessee's appeal.

7. Credit for Taxes Withheld:
The assessee claimed that the AO erred in not granting credit for taxes withheld amounting to Rs. 11,55,19,122. The Tribunal found no discussion on this issue in the lower authorities' orders and remitted it to the AO for verification and consideration.

8. Levy of Interest and Penalty Proceedings:
The assessee contested the levy of interest under sections 234B and 234C and the initiation of penalty proceedings under section 271(1)(c). The Tribunal noted the absence of discussion on these issues in the lower authorities' orders and remitted them to the AO for verification and consideration.

Conclusion:
The Tribunal allowed the appeal for statistical purposes, remitting the issues of permanent establishment, credit for taxes withheld, and the levy of interest and penalties back to the AO for fresh adjudication in accordance with the law and the Tribunal's guidance in the case of CGG Veritas Services SA.

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