2017 (10) TMI 1426 - AT - Income Tax

Fees for technical services - amount received by the assessee from B.J Services Company (Middle East) Ltd for rendering Fracturing Flow Back Services - assessment u/s 44BB or 115A - HELD THAT - When the assessee who was engaged as a Sub-contractor by B.J Services Company (Middle East) Ltd had nothing to do with the company viz. ONGC therefore the A.O/DRP were wrong in concluding that the amount received by the assessee from B.J Services Company (Middle East) Ltd for rendering Fracturing Flow Back Services were indirectly received from ONGC. We thus set aside the aforesaid observations of the A.O/DRP and hold that the amount under consideration was received by the assessee from B.J Services Company (Middle East) Ltd. We further find that pursuant to the judgment of the Oil & Natural Gas Corpn. Ltd. 2015 (7) TMI 91 - SUPREME COURT ) it stands settled as on date that prospecting for extraction or production of mineral oil is not to be treated as technical services for the purpose of Explanation 2 of Sec. 9(1)(vii) and would rather be covered by Sec. 44BB. As prospecting for or extraction or production of mineral oil is not to be treated as technical services for the purpose of Explanation 2 of Sec. 9(1)(vii) therefore it can safely be concluded that the payments received by the assessee from rendering of Fracturing Flow Back Services for extraction or production of mineral oil would not fall within the realm of fees for technical services . We thus are of the considered view that as the precondition for invoking of Sec. 115A is in itself found to be missing therefore the same would not be attracted to the case of the assessee. We set aside the order of the A.O assessing the amount received by the assessee from B.J Services Company (Middle East) Ltd. for rendering of Fracturing Flow Back Services at the oil rigs to tax as per the provisions of Sec. 115A - thus in agreement with the A.R that now when Sec. 44BB contemplates special and specific provisions for computing profits and gains of a non-resident in connection with the business of providing services or facilities in connection with or supplying plant and machinery on hire used or to be used in the prospecting for or extraction or production of mineral oils therefore the Fracturing Flow Back Services rendered by the assessee in connection with extraction or production of mineral oil would squarely be covered by the provisions of Sec. 44BB. - Decided in favour of assessee.

Issues Involved:
1. Whether the income received by the appellant constitutes fees for technical services under Section 115A or should be computed under Section 44BB of the Income Tax Act, 1961.
2. Whether the payments received by the appellant were indirectly from ONGC, thus falling under the purview of Section 115A.
3. Applicability of Section 44BB as a special provision for computing profits and gains in connection with the business of exploration of mineral oils.
4. Whether Section 115A applies only when income for technical fees is received from the Government or an Indian concern.
5. Whether the Assessing Officer overlooked judicial pronouncements and the law on the subject.

Detailed Analysis:

1. Income Classification under Section 115A vs. Section 44BB:
The appellant argued that the income received should be computed under Section 44BB, a special provision for businesses engaged in the exploration of mineral oils, rather than being classified as fees for technical services under Section 115A. The Assessing Officer (A.O.) initially held that the services provided were technical in nature and thus taxable under Section 115A. However, the appellant contended that the nature of their services—Fracturing Flow Back Services—was specifically covered under Section 44BB.

2. Payments Indirectly from ONGC:
The A.O. argued that since B.J Services Company (Middle East) Ltd. was subcontracted by ONGC, the payments received by the appellant were indirectly from ONGC, thus falling under Section 115A. The appellant countered this by pointing out that their contract was solely with B.J Services Company (Middle East) Ltd., a foreign entity, and not directly with ONGC. The Tribunal agreed with the appellant, noting that the contractual terms clearly stated that any subcontractor would be under the complete control of the contractor (B.J Services) and not ONGC.

3. Applicability of Section 44BB:
The appellant emphasized that Section 44BB, being a special provision, should override other provisions like Section 115A. The Tribunal referred to the Supreme Court judgment in Oil & Natural Gas Corpn. Ltd. v. CIT, which held that services related to the extraction or production of mineral oil should not be treated as technical services for the purpose of Section 9(1)(vii) and should fall under Section 44BB. The Tribunal concluded that the Fracturing Flow Back Services provided by the appellant were indeed covered under Section 44BB.

4. Section 115A and Payments from Government or Indian Concern:
The appellant argued that Section 115A applies only when technical fees are received from the Government or an Indian concern. Since the payments were received from B.J Services Company (Middle East) Ltd., a foreign entity, Section 115A should not apply. The Tribunal found merit in this argument, noting that the payments were not received from ONGC or any Indian concern, thus excluding the applicability of Section 115A.

5. Overlooking Judicial Pronouncements:
The appellant contended that the A.O. failed to consider relevant judicial pronouncements and legal provisions. The Tribunal agreed, emphasizing that the Supreme Court's judgment in Oil & Natural Gas Corpn. Ltd. clarified that services related to mineral oil extraction should not be classified as technical services under Section 9(1)(vii).

Conclusion:
The Tribunal concluded that the income received by the appellant from B.J Services Company (Middle East) Ltd. should be assessed under Section 44BB and not under Section 115A. The Tribunal set aside the A.O.'s order and directed that the income be computed as per the provisions of Section 44BB. The appeal was allowed in favor of the appellant.

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