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2016 (7) TMI 947 - AT - Income TaxIncome for taxation as per section 44BB - taxability of fees for technical services - whether applicability of sections 44D and 44DA got excluded? - AO concluded that assessee s receipts were effectively connected with the project office of the assessee in India and therefore taxable u/s 44DA - Held that - The Tribunal in the case of Baker Hughes Asia Pacific Ltd.(2014 (7) TMI 601 - ITAT DELHI) has relied on the decision of Hon ble Jurisdictional High Court (Uttrakhand) in B.J. Services 2011 (8) TMI 477 - UTTARAKHAND HIGH COURT for rejecting the department s contention that section 44DA inserted by Finance Act 2010 w.e.f. 1.4.2011 in section 44BB is retrospective. Moreover we find that Hon ble Supreme Court in the case of ONGC (2015 (7) TMI 91 - SUPREME COURT) has set at rest the entire controversy by holding that provisions of various services in connection with the prospecting for or extraction or production of mineral oils is taxable on presumptive basis u/s 44BB of the Act. The services carried on by assessee are in connection with the prospecting for mineral oils and therefore following the decision of Hon ble Supreme Court the assessee s appeal deserves to be allowed. In view of above discussion the assessee s appeal is allowed and the appeal filed by the Revenue stands dismissed. - Decided in favour of assessee.
Issues Involved:
1. Taxability of receipts from seismic data acquisition and processing services. 2. Taxability of mobilization/demobilization receipts attributable to distance traveled outside India. 3. Taxability of service tax charges. 4. Applicability of Section 44BB versus Section 44DA and Section 115A of the Income-tax Act. Analysis of Judgment: 1. Taxability of Receipts from Seismic Data Acquisition and Processing Services: The assessee, a non-resident company, offered its income under Section 44BB of the Income-tax Act at a deemed profit of 10% of gross revenues. The Assessing Officer (AO) contended that the receipts were fees for technical services and should be taxed under Section 44DA, as they were effectively connected with the project office of the assessee in India. The CIT(A) held that the revenues from the activities were not in the nature of Fee for Technical Services (FTS) and were taxable under Section 44BB. The Tribunal upheld this view, stating that the insertion of Section 44DA in the proviso to Section 44BB w.e.f. 1.4.2011 was prospective and not applicable for the assessment year 2010-11. The Tribunal relied on previous decisions, including the Supreme Court's ruling in ONGC Ltd. vs. CIT, which held that payments for services connected with prospecting, extraction, or production of mineral oil should be assessed under Section 44BB and not Section 44D. 2. Taxability of Mobilization/Demobilization Receipts Attributable to Distance Traveled Outside India: The AO added the mobilization/demobilization receipts to the taxable income, arguing that these were effectively connected with the project office in India. The CIT(A) confirmed this addition. The Tribunal referred to its previous decision in the assessee's own case for the assessment year 2009-10, where it was held that mobilization is an incidental activity to the main activity of carrying out the contract in India. Therefore, such receipts are taxable in India. Respectfully following this precedent, the Tribunal dismissed the assessee's appeal on this ground. 3. Taxability of Service Tax Charges: The AO included the service tax charges in the gross receipts for computing taxable income under Section 44BB. The CIT(A) upheld this view. However, the Tribunal referred to the decision of the Hon’ble jurisdictional High Court in DIT vs. Mitchell Drilling International Pvt. Ltd., which held that service tax collected by the assessee is not to be included in the gross receipts for the purpose of Section 44BB. The Tribunal allowed the assessee's appeal on this ground, stating that the service tax collected cannot be included in the gross receipts in terms of Section 44BB(1). 4. Applicability of Section 44BB versus Section 44DA and Section 115A: The AO argued that the services rendered by the assessee were technical in nature and should be taxed under Section 44DA. The CIT(A) disagreed, holding that the income was taxable under the presumptive provisions of Section 44BB. The Tribunal supported this view, stating that the amendment to Section 44BB by the insertion of Section 44DA was prospective and applicable from assessment year 2011-12 onwards. The Tribunal emphasized that for the assessment year 2010-11, the receipts from services connected with the prospecting, extraction, or production of mineral oil should be taxed under Section 44BB. Conclusion: The Tribunal upheld the CIT(A)'s decision that the assessee's income from seismic data acquisition and processing services should be taxed under Section 44BB and not under Section 44DA or Section 115A. The Tribunal dismissed the assessee's appeal regarding the taxability of mobilization/demobilization receipts but allowed the appeal concerning the exclusion of service tax charges from gross receipts. The Revenue's appeal was dismissed, affirming the CIT(A)'s interpretation that the income was taxable under Section 44BB. The judgment was pronounced in open court on 13th May 2016.
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