9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (9) TMI 242 - HC - Income TaxFees for technical services received by the foreign company from an Indian concern - Chargeable to tax under Section 44BB v/s 44D - Indian permanent establishment of company - whether assessee s case is covered u/s 44BB and not u/s 44D r.w.s.115A ? - whether classified as Indian Concern in context of sec.44D r.w.s.115A of I.T. Act, 1961 as the company is incorporated Canada ? - Special provision for computing profits and gains in connection with the business of exploration, etc. of mineral oils - HELD THAT - As relying on OIL NATURAL GAS CORPORATION LIMITED VERSUS COMMISSIONER OF INCOME TAX ANOTHE 2015 (7) TMI 91 - SUPREME COURT payment made by respondent to HUB International for providing supervising drilling operations in oil fields, may be Fees for technical services but the dominant purpose of payment of fees for technical services was for exploration and development of Oil and Gas in India. There is no infirmity in the impugned order of the Tribunal, holding that the provisions of Section 44D of the Act is not applicable in the facts of the present case and from the payment made to HUB International Limited, respondent would be liable to deduct TDS at the rate of 4.2%, under the provisions of Section 44BB of the Act. Amount paid by the respondent to the HUB International Limited would be covered by Section 44BB and not under section 44D r.w.s. 115A of the Act, Question (A) is answered in favour of assessee.
Issues Involved:
1. Applicability of Section 44BB vs. Section 44D read with Section 115A of the Income-Tax Act, 1961. 2. Classification of the Indian permanent establishment of a foreign company as an "Indian Concern" under Section 44D. 3. Interpretation of "Indian concern" in the context of Section 44D read with Section 115A. 4. Reliance on previous case laws unrelated to the special provisions for computing income by way of royalties under Section 44D. Issue-wise Detailed Analysis: 1. Applicability of Section 44BB vs. Section 44D read with Section 115A of the Income-Tax Act, 1961: The core issue revolves around whether the income received by HUB International Limited should be taxed under Section 44BB, which deals with special provisions for computing profits and gains in connection with the business of exploration of mineral oils, or under Section 44D read with Section 115A, which pertains to "Fees for Technical Services." The Assessing Officer initially held that the payment to HUB International Limited constituted "Fees for Technical Services" and directed the respondent to deduct TDS at 21%. However, both the CIT (Appeal) and the Appellate Tribunal concluded that Section 44BB was applicable, as the services provided were inextricably linked with the exploration and development of oil and gas in India. This conclusion was supported by the Supreme Court's judgment in the ONGC case, which emphasized that services directly associated with prospecting, extraction, or production of mineral oil should be taxed under Section 44BB. 2. Classification of the Indian permanent establishment of a foreign company as an "Indian Concern" under Section 44D: The Assessing Officer argued that the respondent was an "Indian concern" because the payment to HUB International Limited was made jointly by the respondent and GSPCL. However, the CIT (Appeal) and the Appellate Tribunal disagreed, stating that the respondent, being a company incorporated in Canada, could not be classified as an "Indian concern." The Tribunal further noted that the fees for technical services were paid directly by the respondent to HUB International Limited, and thus, Section 44D was not applicable. 3. Interpretation of "Indian concern" in the context of Section 44D read with Section 115A: The Tribunal examined whether the term "Indian concern" should include a business carried out in India by a non-resident. It concluded that the respondent, a Canadian company, could not be considered an "Indian concern" merely because it was authorized to enter into an agreement on behalf of a joint venture with GSPCL. The Tribunal relied on previous judgments, including CIT Vs Craigmore Land & Produce Co. Ltd. and CIT vs Dorr Oliver (I) Ltd., to support its interpretation. 4. Reliance on previous case laws unrelated to the special provisions for computing income by way of royalties under Section 44D: The Tribunal addressed the Revenue's reliance on case laws related to the Super Profit Tax Act, 1963, which were deemed irrelevant to the issue at hand. The Tribunal emphasized that the relevant case laws and statutory provisions applicable to the special provisions for computing income by way of royalties under Section 44D should be considered. Conclusion: The High Court upheld the findings of the CIT (Appeal) and the Appellate Tribunal, concluding that the payments made by the respondent to HUB International Limited for supervising drilling operations in oil fields were for the purpose of exploration and development of oil and gas in India. Therefore, the provisions of Section 44BB were applicable, and the respondent was liable to deduct TDS at the rate of 4.2%. The Court did not address Questions (B), (C), and (D) due to the resolution of Question (A) in favor of the assessee. The appeal was dismissed with no order as to costs.
|
