2009 (5) TMI 25 - HC - Income Tax

Presumptive tax - non-resident - Whether the ITAT has erred in law in holding that reimbursement of expenses on account of catering charges and fuel etc. to the assessee were not part of the gross receipts for the purposes of S. 44BB words used in the section include the amount received by the assessee on account of catering charges and fuel etc. to the non-resident assessee involved in the business of oil exploration as the catering charges do form part of services and facilities in connection with the extraction or production of the mineral oil - catering charges and fuel expenses reimbursed cannot be excluded from the amount defined in sub-section (2) of Section 44BB tribunal s order set aside

Summary

Issues:
1. Interpretation of Section 44BB of the Income Tax Act, 1961 regarding the inclusion of reimbursed expenses in gross receipts for non-resident assessees engaged in the business of exploration of mineral oils.

Analysis:
The judgment in question involves the interpretation of Section 44BB of the Income Tax Act, 1961, specifically concerning the treatment of reimbursed expenses in the gross receipts of non-resident assessees engaged in the business of mineral oil exploration. The primary issue revolves around whether the Income Tax Appellate Tribunal (ITAT) erred in law by excluding the reimbursement of expenses on account of catering charges and fuel from the gross receipts for the purposes of Section 44BB.

The facts leading to the appeal reveal that the Assessing Officer included the reimbursement of expenses towards catering charges and fuel in the gross receipts of the non-resident company for the Assessment Year 2003-04. Subsequently, the Commissioner of Income Tax (Appeals) allowed the appeal filed by the assessee, leading to the Revenue challenging this decision before the ITAT. The ITAT, in its order, affirmed the decision of the CIT(A), prompting the Revenue to file the current appeal before the High Court.

The High Court, in its analysis, delves into the provisions of Section 44BB, which deems ten per cent of specified amounts as the profits and gains of the business of non-resident assessees engaged in mineral oil exploration. The section explicitly includes amounts paid or payable to the assessee on account of services and facilities related to mineral oil extraction, whether inside or outside India. The Court emphasizes that catering charges and fuel expenses reimbursed to the non-resident assessee fall within the ambit of 'services and facilities' connected to mineral oil extraction, thus necessitating their inclusion in the gross receipts.

Furthermore, the Court references a previous judgment by a Division Bench in a similar case, highlighting that all payments made or received by the assessee for the specified purposes in Section 44BB should be considered. Building on this precedent, the Court concludes that the ITAT and CIT(A) erred in excluding catering charges and fuel expenses from the amount for calculating the ten per cent deemed profit. Consequently, the Court allows the appeal, setting aside the orders of the ITAT and CIT(A) and restoring the Assessing Officer's decision to include the reimbursed expenses in the gross receipts of the non-resident company.

In conclusion, the judgment provides a detailed analysis of the interpretation of Section 44BB in the context of reimbursed expenses for non-resident assessees engaged in mineral oil exploration, ultimately clarifying that such expenses should be considered part of the gross receipts for the purpose of computing deemed profits under the said section.