2012 (10) TMI 405 - AT - Income Tax

Tax on receipts from Dubai, UAE companies - u/s. 44D r.w.s. 115A OR u/s. 44BB - Held that - Undoubtedly Hon ble Jurisdictional High Court has held that income in this case is chargeable u/s. 44D read with section 115A but the issue as to whether the assessee was entitled to relief under Article 22 of the DTAA between India and UAE has not been looked into. Also this issue was also earlier remitted by the Tribunal to the file of the AO and AO has not considered it the matter needs to be referred back to the Assessing Officer to consider the same - in favour of assessee for statistical purposes.

Summary

Issues:
1. Taxability of receipts from Oil and Natural Gas Corporation Limited under section 44D read with section 115A of the Income Tax Act, 1961.
2. Applicability of section 44BB for taxation of receipts.
3. Entitlement to exemption under the Double Tax Avoidance Agreement between India and UAE.

Analysis:
Issue 1:
The appeal pertains to the taxability of receipts from Oil and Natural Gas Corporation Limited by a non-resident company under section 44D read with section 115A of the Income Tax Act, 1961. The Assessing Officer considered the receipts as fees for technical services and not under section 44BB. The Commissioner of Income Tax (Appeals) upheld this decision, stating that the non-resident company was hired for consultancy services and technical evaluation, falling under section 44D read with Section 115A.

Issue 2:
The Appellate Tribunal, in the appeal against the Commissioner's order, directed the Assessing Officer to compute the income under section 44BB instead of section 44D. However, considering the High Court's judgment in a related case, the Assessing Officer upheld the taxability under section 44D read with section 115A. The Commissioner affirmed this decision, relying on the High Court's judgment that the services rendered were technical in nature, falling under section 44D.

Issue 3:
Regarding the entitlement to exemption under the Double Tax Avoidance Agreement between India and UAE, the Tribunal had directed the Assessing Officer to determine if relief was available under Article 22 of the DTAA. However, the Assessing Officer did not provide a finding on this issue. The High Court's judgment did not address the DTAA issue, leading the current judge to remit the matter back to the Assessing Officer for a specific finding on the applicability of relief under Article 22 of the DTAA, ensuring the assessee is given a fair opportunity to present their case.

In conclusion, the appeal was partly allowed for statistical purposes, remitting the issue of DTAA relief back to the Assessing Officer for a detailed examination and decision, emphasizing the importance of considering all relevant factors, including international agreements, in tax assessments.