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2014 (1) TMI 1300 - AT - Income TaxConsideration taxed on contracts - Works carried outside India Identification of onshore/offshore services Services entered by unrelated parties Held that - During the year also MUT pipeline project MSP platform project of ONGC and GMR (operation and maintenance contract) of GMR power Corporation were continuing relevant to the assessment years 2004-05 or earlier years whereas the project HMI (sub-station) of Hyundai Motors India Ltd. has continued from the assessment year 2006-07. In the assessment year 2007-08 the Tribunal has dealt with the issue relating to MUT pipeline project MSP platform project of ONGC and GMR (operation and maintenance contract) projects which are also under consideration in the assessment year in question - The contracts are divisible - The receipts pertaining to designing fabrication and supply of material the activities carried out outside India is not taxable in India - The ground relating to MUT pipeline project MSP platform project of ONGC and GMR (operation and maintenance contract) projects in favour of the assessee that outside the receipts pertaining to designing fabrication and supply of material activities carried out outside India is not taxable in India - So far as taxability of receipts pertaining to HMI (sub station) of Hyundai Heavy Industries Ltd. is concerned the matter is set aside and remitted back to the AO for fresh adjudication Decided partly in favour of Assessee. Entire revenue taxed Operations carried on outside India Applicability of Provision of Article 7(3) and 7(5) of DTAA - Fabrication carried out of India Held that - The decision in Hyundai Heavy Industries Co. Ltd. Versus Director of Income-tax (International Taxation) 2011 (5) TMI 858 - ITAT DELHI followed - The receipts pertaining to designing fabrication and supply of material the activities carried out outside India is not taxable in India. Error in computing income chargeable to tax Disallowance of expenses for various projects outside India Held that - The decision in Hyundai Heavy Industries Co. Ltd. Versus Director of Income-tax (International Taxation) 2011 (5) TMI 858 - ITAT DELHI - The AO has taxed 90% of the receipts from these contracts under a particular method then cannot treat the remaining 10% in a different way and even a taxed gross amount by disallowing cost and estimated the profit - the order of the AO set aside with a direction to him to take 10% of the gross revenue after allowing sub contracts cost Decided in favour of Assessee. Error in bringing tax interest at marginal rate under Article 12(5) of DTAA Held that - The decision of the authorities below on remained that interest on Citi Bank deposit was out of surplus earned by the PE and therefore effectively connected with the PE and is to be taxed at the normal rate application to the profits of the business of a foreign company - In absence of rebuttal of this finding of the authorities by the assesee there was no reason to interefere therewith Decided against Assessee. Levy of Interest u/s 234B and 234D of the Act Held that - The decision in Director of Income Tax vs. Maersk Company Ltd. 2011 (4) TMI 886 - Uttarkhand High Court followed - As soon as tax is deducted at source by the person responsible to make payment the liability of the assessee to pay the tax gets discharged - If the tax is not deducted it is payable by the assessee directly as provided u/s 191 of the Act - the liability to pay interest u/s 201 (IA) is on a person who fails to deduct the tax at source - it is absolute and is upon the person responsible for deducting tax at source till the date it was actually paid - the liability to pay interest u/s 234B of the Act arises only if the assesee is liable to pay advance tax u/s 208 and has failed to pay such tax or where the advance tax paid by the assessee under the provisions of section 210 is less than 90% of the assessed tax the matter remitted back to the AO for fresh adjudication Decided in favour of Assessee.
Issues Involved:
1. Validity of the impugned order passed by the AO. 2. Assessment of total income at Rs. 60,64,23,550/- against the declared income of Rs. 10,10,20,073/-. 3. Laconic and devoid reasoning of the DRP order. 4. Non-following of ITAT's previous judgment in the assessee's own case. 5. Taxation of receipts for work carried out outside India. 6. Taxation of revenue for operations outside India disregarding DTAA principles. 7. Constitution of a Fixed Place PE in India. 8. Non-following of principles of consistency and DTAA in estimating income. 9. Disallowance of expenses for various projects inside India. 10. Taxation of interest from Citi Bank, Chennai. 11. Levy of interest under Sections 234B and 234D. 12. Initiation of proceedings under section 271(1)(c). Issue-wise Detailed Analysis: Ground No. 1: Validity of the Impugned Order - The assessee claimed that the order passed by the AO is "bad in law and void ab initio." The Tribunal found this ground general in nature and did not require independent adjudication. Ground No. 2: Assessment of Total Income - The assessee questioned the AO's action in assessing the total income at Rs. 60,64,23,550/- against the declared income of Rs. 10,10,20,073/-. The Tribunal noted this issue is general and depends on the outcome of other grounds, hence no independent finding was required. Ground Nos. 3, 4, 5, and 5.1: Laconic DRP Order and Non-following of ITAT's Previous Judgment - The assessee argued that the DRP's order was laconic and devoid of reasoning and that the authorities did not follow the ITAT's previous judgment in the assessee's own case for AY 2007-08. The Tribunal found these grounds general and did not require separate adjudication. Ground No. 5.2: Non-following of Supreme Court and Tribunal's Orders - The assessee contended that the authorities did not follow the Supreme Court's decision for AYs 1987-88 to 1988-89 and the Tribunal's orders for AYs 1995-96 to 2006-07. The Tribunal found this ground general and did not require independent adjudication. Ground Nos. 6, 6.1, 6.2, and 6.3: Taxation of Receipts for Work Outside India - The assessee questioned the taxation of receipts for work carried out outside India, arguing that the consideration for onshore/offshore services was identified in contracts between unrelated parties. The Tribunal noted that similar issues were raised in AY 2007-08 and decided in favor of the assessee. The Tribunal found that the contracts are divisible and the receipts for designing, fabrication, and supply of material carried out outside India are not taxable in India. Ground Nos. 7, 8, 8.1, 9, 9.1, and 10: Taxation of Revenue for Operations Outside India and Constitution of PE - The assessee argued that the authorities erred in taxing revenue for operations outside India and in holding that the Mumbai office constitutes a Fixed Place PE. The Tribunal found that these issues were covered by its decision in AY 2007-08, where it held that receipts for activities carried out outside India are not taxable in India. Ground Nos. 11, 11.1, and 11.2: Disallowance of Expenses for Projects Inside India - The assessee contended that the authorities erred in disallowing expenses for various projects inside India. The Tribunal noted that these issues were covered by its decision in AY 2007-08, where it directed the AO to take 10% of the gross revenue after allowing sub-contract costs. Ground No. 12: Alternative Ground for Ground Nos. 11, 11.1, and 11.2 - The assessee argued that the authorities could at best tax the inside India revenue at 10% under section 44BB. The Tribunal found this ground infructuous in light of its decision on the previous grounds. Ground No. 13: Alternative Argument on Determination of Total Income - The assessee argued that the determination of total income by the authorities was arbitrary and capricious. The Tribunal found this ground did not stand in light of its decision on the previous grounds. Ground No. 14: Taxation of Interest from Citi Bank, Chennai - The assessee questioned the taxation of interest from Citi Bank, Chennai at the maximum marginal rate under Article 12(5) of the DTAA. The Tribunal upheld the authorities' decision, noting that the interest was effectively connected with the PE. Ground No. 15: Levy of Interest under Sections 234B and 234D - The assessee questioned the levy of interest under Sections 234B and 234D. The Tribunal set aside the matter to the AO to decide afresh in light of the decision of the Uttarakhand High Court and the outcome of the remanded issues. Ground No. 16: Initiation of Penalty Proceedings under Section 271(1)(c) - The assessee questioned the initiation of penalty proceedings under Section 271(1)(c). The Tribunal found it premature to question the action at this stage as it is an independent proceeding. Conclusion: - The appeal was partly allowed. The Tribunal directed the AO to follow its previous decisions and the principles laid down in the relevant judgments while assessing the income and tax liabilities of the assessee.
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