2014 (1) TMI 1580 - AT - Income Tax

Estimation of profits u/s 44BB - Mobilization fee for work carried outside India - Held that - Relying upon the decision in Sedco Forex Inc. v. CIT 2007 (9) TMI 196 - UTTARAKHAND HIGH COURT - Mobilization charges paid to assessee by ONGC had no nexus with the actual amount incurred by assessee for transportation of drilling units of rigs to India Mobilization charges weren t reimbursement of expenditure In view of fictional taxing provision u/s 44BB, AO is justified in adding the amount received by assessee towards mobilization charges for the purpose of imposing income tax - Decided against assessee. Reimbursement of communication charges and repair of equipments - Held that - Relying upon the decision in CIT v. Halliburton Offshore Service Inc. 2007 (9) TMI 230 - UTTARAKHAND HIGH COURT - As per section 44BB - All the amounts either paid or payable (whether in India or outside India) or received or deemed to be received (whether in India or outside India) are mutually inclusive - This amount is the basis of determination of deemed profit and gains of the assessee at the rate of 10% - Section 44BB provides by a legal fiction to be the profits and gains of the non-resident assessee engaged in the business of exploration at the rate of 10% of the aggregate amount specified in sub section (2) - The Assessing Officer added the said amount which was received by the non resident company rendering services as per provisions of sec. 44BB to the ONGC - Decided against assessee. Reimbursement of service tax - Held that - Relying upon the decision in M/s Sedco Forex International Drilling Inc C/o Nangia & Company Versus Assistant Director of Income Tax, International Taxation 2014 (1) TMI 1322 - ITAT DELHI - service tax being a statutory liability cannot form part of gross receipts for the purpose of deemed profit u/s 44BB - Decided in favour of assessee.

Summary

Issues Involved:
1. Taxability of mobilization fee under section 44BB of the Income Tax Act, 1961.
2. Addition of reimbursement of communication charges under section 44BB.
3. Addition of reimbursement of repair costs of equipment under section 44BB.
4. Addition of reimbursement of service tax in computing income under section 44BB.

Detailed Analysis:

1. Taxability of Mobilization Fee:
The assessee contested the inclusion of mobilization fee of Rs. 6,08,55,000/- received under a contract from ONGC, arguing that it was for work carried out outside India and should not be taxable under section 44BB. The assessee also invoked the Double Taxation Avoidance Agreement (DTAA) with France, claiming the beneficial provisions of section 90(2) were ignored. However, the Tribunal noted that the Hon'ble High Court had already decided this issue against the assessee in a previous case, referencing the Sedco Forex Inc. v. CIT judgment. Consequently, the Tribunal dismissed the first ground of appeal, affirming that the mobilization fee is taxable under section 44BB.

2. Addition of Reimbursement of Communication Charges:
The assessee argued that reimbursement of communication charges should not be included in gross receipts under section 44BB, citing a previous favorable Tribunal decision for the assessment year 2002-03. However, the Tribunal referred to the Hon'ble Uttrakhand High Court's decision in CIT v. Halliburton Offshore Service Inc., which clarified that all amounts paid or payable, received or deemed to be received, are mutually inclusive under section 44BB. Thus, the Tribunal concluded that the reimbursement of communication charges forms part of gross receipts and dismissed this ground of appeal.

3. Addition of Reimbursement of Repair Costs of Equipment:
Similar to the communication charges, the assessee argued that reimbursement of repair costs should not be included in gross receipts. The Tribunal again referred to the Halliburton Offshore Service Inc. case, emphasizing that section 44BB is a comprehensive code and all such reimbursements are part of gross receipts. Therefore, this ground of appeal was also dismissed.

4. Addition of Reimbursement of Service Tax:
The assessee contended that service tax reimbursement should not form part of gross receipts for the purpose of deemed profit under section 44BB. The Tribunal agreed, referencing the Sedco Forex Drilling Inc. case, which held that service tax, being a statutory liability, does not involve any element of profit and should not be included in gross receipts. Consequently, the Tribunal decided this ground in favor of the assessee.

Conclusion:
The appeal was partly allowed. The Tribunal upheld the taxability of the mobilization fee and the inclusion of communication and repair cost reimbursements in gross receipts under section 44BB. However, it ruled in favor of the assessee regarding the exclusion of service tax reimbursement from gross receipts.