2015 (6) TMI 493 - AT - Income Tax

Determination of income u/s 44BB - Receipts on account of service tax - whether includible in the gross receipts for the purpose of determining income under section 44BB - Held that - Keeping in view the case of Ensco Maritime Limited vs. Asstt. Director of Income Tax (Int. Taxation) 2015 (1) TMI 355 - ITAT DELHI in which one of the Members was the party wherein the issue in dispute was decided in favor of the assessee. Respectfully following the precedent of the Coordinate Bench as aforesaid we quash the orders of the authorities below and direct the AO to exclude service tax from the gross receipts for the purpose of determining the income under section 44BB of the Income Tax Act 1961 - Decided in favor of the assessee.

Summary

Issues:
1. Inclusion of service tax receipts in gross receipts for determining income under section 44BB of the Income Tax Act, 1961.
2. Compliance with the judgment of the jurisdictional Income Tax Appellate Tribunal, Delhi 'G' Bench in a similar case.

Issue 1: Inclusion of Service Tax Receipts:
The appeal was filed against the order of the Ld. CIT(A)-II, New Delhi, upholding the inclusion of service tax receipts in the gross receipts for determining income under section 44BB of the Income Tax Act, 1961. The AO considered the service tax reimbursement as part of the gross receipts, leading to a higher taxable income for the assessee. The assessee contended that service tax receipts should not be included in gross receipts for the purpose of determining income under section 44BB. However, the AO disagreed and included the service tax reimbursements in the gross receipts, resulting in a higher taxable income calculation. The Ld. CIT(A) also dismissed the appeal of the assessee, leading to the appeal before the ITAT Delhi.

Issue 2: Compliance with Previous Tribunal Judgments:
The appellant cited a similar case of Ensco Maritime Limited vs. Asstt. Director of Income Tax, where the ITAT Delhi 'B' Bench decided in favor of the assessee by excluding service tax from gross receipts for determining income under section 44BB. The appellant argued that the issue in dispute was similar to the Ensco Maritime case and should be decided accordingly. The ITAT considered the previous judgment and found that the issue was squarely covered in favor of the assessee. The ITAT referenced specific paragraphs from the previous judgment to support the decision to exclude service tax from gross receipts. Consequently, the ITAT quashed the orders of the lower authorities and directed the AO to exclude service tax from gross receipts, thereby allowing the appeal of the assessee.

In conclusion, the ITAT Delhi allowed the appeal of the assessee, directing the exclusion of service tax from gross receipts for determining income under section 44BB of the Income Tax Act, 1961. The decision was based on compliance with previous tribunal judgments and established legal principles regarding the treatment of service tax reimbursements in the computation of taxable income.