2016 (5) TMI 258 - AT - Income Tax

Professional charges received - whether were not in the nature of fees for technical services as defined in sec. 9(1 )(vii) - invoking the provisions of sec 44DA r.w.s. 115 - Held that - Income from the services rendered in connection with providing drilling rigs/drilling services to Cairn in India are in the nature of services and facilities in connection with or supplying plant and machinery on hire which are used in prospecting for extraction or production of mineral oil and the provisions of section 44BB of the Act would apply and the income would be taxable accordingly and not as fee for technical services either under section 44DA or section 115A of the Act - Decided in favour of assessee Interest charged under section 234B - Held that - The clause of the contract agreement contained provision for production of lower or no withholding tax certificate by the assessee to the Cairn however the Revenue has not produced any evidences that any such certificate of lower or no withholding tax was ever submitted by the assessee to the Cairn and therefore it cannot be said that the assessee played any role in lower or no withholding tax by the payer. Thus respectfully following the judgment of the Hon ble High Court in the case of GE Packaged Power Inc 2015 (1) TMI 1168 - DELHI HIGH COURT we are of the opinion that the assessee cannot be held responsible for lower or no withholding tax and consequent responsibility of interest under section 234B of the Act for non-payment of advance tax on its income. Accordingly we uphold the finding of the learned Commissioner of Income-tax(Appeals) on the issue and the ground of the Revenue is dismissed. - Decided in favour of assessee Considering the entire mobilization charges for taxing under section 44BB - Held that - The entire payment of mobilization charges in question was paid for the purpose of execution of the contract between the assessee and the Cairn and therefore the entire sum was liable for taxed under section 44BB of the Act. Accordingly we uphold the finding of the learned Commissioner of Incometax( Appeals) on the issue in dispute and the ground of the assessee is dismissed. - Decided in favour of revenue

Issues Involved:

1. Whether the professional charges received by the assessee were in the nature of fees for technical services under section 9(1)(vii) of the Income Tax Act.
2. Whether the income of the assessee was taxable under section 44DA read with section 115A of the Income Tax Act.
3. Whether the income of the assessee was taxable under the presumptive provisions of section 44BB of the Income Tax Act.
4. Whether the proviso to section 44DA brought by the Finance Act, 2011, was clarificatory in nature and applicable retrospectively.
5. Whether the interest charged under section 234B was correctly deleted by relying on the Delhi High Court's decision in Jacobs Civil Incorporation/Mitsubishi Corporation.
6. General grounds for adding, amending, modifying, or altering any grounds of appeal.

Detailed Analysis:

1. Nature of Professional Charges:
The CIT(A) held that the professional charges received by the assessee were not in the nature of fees for technical services as defined under section 9(1)(vii) of the Income Tax Act. The Tribunal upheld this finding, noting that the services provided were in connection with the extraction or production of mineral oil, and thus fell under section 44BB of the Act.

2. Taxability under Section 44DA read with Section 115A:
The CIT(A) determined that the income of the assessee was not taxable under section 44DA read with section 115A of the Act. The Tribunal agreed, stating that for assessment years 2004-05 to 2010-11, fees for technical services related to the extraction or production of mineral oil were assessable under section 44BB(1) of the Act, not under section 44DA or section 115A.

3. Taxability under Section 44BB:
The Tribunal upheld the CIT(A)'s decision that the income from providing drilling rigs and related services to 'Cairn' in India was taxable under section 44BB of the Act. This section applies to services and facilities in connection with, or supplying plant and machinery on hire for, the extraction or production of mineral oil.

4. Clarificatory Proviso to Section 44DA:
The Tribunal noted that the proviso to section 44DA, introduced by the Finance Act, 2011, was only applicable from assessment year 2011-12 onwards. Therefore, it did not affect the taxability of income for the assessment year 2008-09.

5. Deletion of Interest under Section 234B:
The CIT(A) deleted the interest charged under section 234B, relying on the Delhi High Court's decision in Jacobs Civil Incorporation/Mitsubishi Corporation. The Tribunal upheld this decision, citing the Delhi High Court's ruling in GE Packaged Power Inc., which clarified that the primary responsibility for deducting tax at source lies with the payer, not the non-resident payee. The Tribunal found no evidence that the assessee had played any role in the non-deduction of tax by the payer.

6. General Grounds:
The Tribunal did not find it necessary to adjudicate on the general grounds raised by the appellant.

Cross Objection by the Assessee:
The assessee's cross objections were partly allowed. The Tribunal held that the entire mobilization charges were taxable under section 44BB, and not apportioned based on the distance traveled within and outside Indian territorial waters. The Tribunal also upheld the CIT(A)'s decision on the non-applicability of interest under section 234B for non-residents whose income is subject to tax deduction at source.

Conclusion:
The Tribunal dismissed the Revenue's appeal and partly allowed the assessee's cross objections, maintaining the taxability of the income under section 44BB and upholding the deletion of interest under section 234B.

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