2014 (9) TMI 514 - AT - Income Tax

Application of section 44BB Deemed profit rate @ 25% - Whether part of the payment received by the assessee can be considered as fee for technical services and whether the other part would be assessed under the presumptive tax of Sec. 44BB of the Act - Held that - The scope of the work is not limited to the transportation of coated pipes alone, but also for many other activities listed in the scope of work and price schedule - The assessee is engaged in providing services in connection with prospecting for, or extraction or production of mineral oils by ONGC - by sub-contract agreement between Engineers India Ltd and the assessee, the assessee was given a turnkey project for laying and installation of pipe lines - when a contract consists of a number of terms and conditions each condition does not form separate contract. The assessee is a non-resident which is engaged in the business providing services or facility in connection with the prospecting for, or extraction of production of mineral oil, its income has to be computed as per the provision of Section 44BB - the argument of revenue is not the basis on which either the AO or the CIT(A) have come to a conclusion, that the provisions of Section 44BB do not apply - the claim of the assessee that the income in question is to be determined by applying the provision of Section 44BB is to be upheld Decided partly in favour of assessee.

Issues Involved:
1. Validity of Reassessment under Section 148.
2. Applicability of Section 44BB to the Assessee's Income.
3. Nature of the Assessee's Business Activities.
4. Taxation of Income under Deemed Profit Rate.
5. Levy of Penalty under Section 271B.

Detailed Analysis:

1. Validity of Reassessment under Section 148:
The assessee challenged the reassessment made by the Assessing Officer (AO) under Section 148 of the Income Tax Act. The First Appellate Authority upheld the validity of the reopening. The tribunal dismissed this ground as not pressed.

2. Applicability of Section 44BB to the Assessee's Income:
The core issue was whether the assessee, a Singapore-incorporated company engaged in transporting coated materials, qualified for the benefits under Section 44BB, which applies to services connected with the prospecting for, extraction, or production of mineral oils. The AO held that the assessee's activities did not fall under Section 44BB as they were merely transportation services. The CIT(A) upheld this view, stating that the assessee was not directly engaged by ONGC and was only a subcontractor for Engineers India Ltd. The tribunal, however, disagreed, stating that the scope of work included activities beyond mere transportation, such as sea fastening engineering and mobilization of cargo barges, which are connected to the extraction or production of mineral oils. The tribunal relied on the decision in the case of ADIT (IT) vs. Valentine Maritime (Gulf) LLC, which had similar facts, and held that the assessee's income should be computed under Section 44BB.

3. Nature of the Assessee's Business Activities:
The AO and CIT(A) concluded that the assessee was engaged in transportation services, which did not qualify for Section 44BB benefits. The tribunal examined the contract documents and invoices, revealing that the scope of work included various specialized services related to the extraction or production of mineral oils. The tribunal thus found that the assessee's activities were indeed connected to the prospecting for, extraction, or production of mineral oils, qualifying them for Section 44BB benefits.

4. Taxation of Income under Deemed Profit Rate:
The CIT(A) applied a deemed profit rate of 25% instead of taxing the income under Section 44BB. The tribunal found this approach inconsistent with the provisions of Section 44BB, which prescribes a 10% deemed profit rate for non-residents providing services connected to the extraction or production of mineral oils. The tribunal upheld the assessee's contention that their income should be taxed under Section 44BB.

5. Levy of Penalty under Section 271B:
The CIT(A) upheld the levy of penalty under Section 271B for failure to get accounts audited. The tribunal dismissed this ground as premature, indicating that it was not yet ripe for adjudication.

Conclusion:
The tribunal allowed the appeal in part, holding that the assessee's income should be computed under Section 44BB, as their activities were connected to the extraction or production of mineral oils. The tribunal dismissed the grounds related to the validity of reassessment and the levy of penalty as not pressed and premature, respectively. The tribunal's decision emphasized the comprehensive nature of the assessee's services, which went beyond mere transportation, aligning with the provisions of Section 44BB.

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