2018 (8) TMI 1057 - AT - Income Tax

Computation of profit u/s 44BB - inclusion of receipts on account of service tax - scope of total turnover - business of exploration, etc., of mineral oils - Held that - service tax cannot form part of the gross revenue, for the purpose to computing the profit and gains under Section 44BB - Decided against the revenue.

Summary

Issues:
1. Inclusion of service tax receipts in gross revenue for computation of profits under section 44BB of the Income Tax Act, 1961.
2. Interpretation of section 44BB as a self-contained code for profit computation.
3. Scope of recomputing profits under section 44BB after offering receipts to tax.
4. Applicability of judgment in M/s Chowringhee Sales Bureau case regarding treatment of sales tax in relation to service tax.

Analysis:
1. The appeal concerned the inclusion of service tax receipts in gross revenue for profit computation under section 44BB. The Revenue argued that service tax should be included, relying on a Supreme Court decision. However, the Respondent cited a Delhi High Court decision and CBDT circulars to support the exclusion of service tax from gross revenue. The Tribunal, following a Jurisdictional High Court judgment, held that service tax cannot form part of gross revenue under section 44BB, ultimately dismissing the Revenue's appeal.

2. The issue of whether section 44BB is a self-contained code for profit computation was raised. The Revenue contended that all deductions and exclusions were deemed to have been allowed to the assessee under this section. However, the Tribunal did not delve into this aspect in detail, focusing instead on the specific treatment of service tax receipts in gross revenue under section 44BB.

3. The scope of recomputing profits under section 44BB after offering receipts to tax was debated. The Revenue argued against excluding any part of receipts from total turnover, emphasizing the presumptive scheme of taxation under section 44BB. The Tribunal did not address this issue explicitly but based its decision on the treatment of service tax receipts as per the Jurisdictional High Court's judgment.

4. The judgment in the M/s Chowringhee Sales Bureau case regarding the treatment of sales tax was discussed in relation to service tax. The Revenue relied on this judgment, highlighting the similarity between sales tax and service tax. However, the Tribunal followed the Jurisdictional High Court's decision, which considered the specific context of service tax receipts and their exclusion from gross revenue under section 44BB.

In conclusion, the Tribunal dismissed the Revenue's appeal based on the Jurisdictional High Court's interpretation that service tax receipts should not be included in gross revenue for profit computation under section 44BB of the Income Tax Act, 1961.