2021 (7) TMI 182 - AT - Income Tax

Addition of contractual revenue on protective basis in the hands of the assessee - case of the assessee was selected for scrutiny and AO passed the assessment order and proposed to complete the assessment holding that the consortium between TODDI and SASL (Assessee) constituted an Association of Person (AOP) under the provisions of the Act - HELD THAT - In earlier assessment years, the Tribunal has been taking a consistent view that the Consortium agreement between the assessee and Transocean Offshore Deepwater Drilling Private Limited do not constitute an AOP and the Transocean Offshore Deepwater Drilling Inc. being consortium member has rightly offered to tax the receipts under section 44BB of the Act in the return of income. On the face of this consistent view taken by the Tribunal over a period of time, there is no reason for us now to take a different view since there is no change of circumstances to affect the applicability of this consistent view for the years under consideration in these two appeals. Allow the grounds of appeal in these two appeals also.

Summary

Issues:
- Maintainability of appeal by the Assessee challenging separate orders
- Assessment of income of the Assessee as an Association of Persons (AOP)
- Dismissal of appeal by Ld. CIT (A) on grounds of non-maintainability

Issue 1: Maintainability of appeal by the Assessee challenging separate orders

The Assessee filed appeals challenging separate orders dated 15.12.2015 for assessment years 2009-10 & 2010-11 passed by the Ld. CIT (A). The Ld. CIT (A) dismissed the appeal on the grounds that it was covered by an order passed in a case related to an alleged Association of Persons (AoP) of other entities. The Ld. CIT (A) held that since there was no impugned order against the Assessee, the appeal was not maintainable. The Assessee contended that the appeal was not disposed of on merits but on the basis of maintainability. The Tribunal observed that there was no order against the Assessee to challenge in the appeal. However, the Tribunal noted that previous decisions by the Tribunal had consistently held that the consortium agreement between the Assessee and another entity did not constitute an AOP. The Tribunal, therefore, allowed the Assessee's appeal based on the consistent view taken in earlier cases.

Issue 2: Assessment of income of the Assessee as an Association of Persons (AOP)

The case involved the assessment of income of the Assessee as an AOP. The Assessing Officer (AO) had proposed to assess the income of the Assessee on a protective basis as part of an AOP with another entity. The Ld. CIT (A) held that the consortium between the Assessee and the other entity did not constitute an AOP and that the income should be assessed on a substantive basis only. Subsequently, notices were issued under section 148 of the Act to the AOP members, including the Assessee, regarding the assessment. However, the AO completed the assessment holding that the consortium constituted an AOP and assessed the income accordingly. The Assessee appealed against this order, leading to the issue of the maintainability of the appeal as discussed earlier.

Issue 3: Dismissal of appeal by Ld. CIT (A) on grounds of non-maintainability

The Ld. CIT (A) dismissed the appeal of the Assessee on the grounds of non-maintainability, citing the absence of an impugned order against the Assessee. The Ld. CIT (A) referred to previous decisions by predecessors where it was held that there was no AOP between the entities involved. The Tribunal, after considering the submissions and previous decisions, allowed the Assessee's appeal based on the consistent view taken by the Tribunal in earlier cases. The Tribunal noted that there was no reason to deviate from the earlier decisions as there were no new circumstances presented to warrant a different view.

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