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TMI Blog2012 (10) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... hi) of 2011 - - - Dated:- 7-8-2012 - Shamim Yahya, J. Kaveesh Sayal for the Appellant. Dr. B.R.R Kumar for the Respondent. ORDER 1. This appeal by the Assessee is directed against the order of the Ld. Commissioner of Income Tax (Appeals)-II, Dehradun dated 02.6.2011 pertaining to assessment year 2002-03. 2. The grounds of appeal read as under:- (i) The Ld. Commissioner of Income Tax (A)-II, Dehradun has erred in law and in the facts and circumstances of the case in upholding the order passed by the Assessing Officer u/s. 143(3)/254 of the I.T. Act, 1961, whereby the receipts of Noble Denton and Associates Ltd. from Oil and Natural Gas Corporation Limited were brought to tax u/s. 44D read with section 115A of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Income Tax (A) held that the provisions of section 44D read with Section 115A applies and not section 44BB. 5. Against the above order the Assessee appealed before the ITAT and ITAT in I.T.A. No. 5101/Del/2004 (A.Y. 2002-03) vide order dated 09.2.2007 held as under:- "8. We find that the issue being identical that receipt by the non resident company is to be taxed under the provisions of section 44BB of the Act and not u/s. 44D read with section 115A of the Act. Similar view has been taken by the Tribunal in other cases relied on by the appellant. The Assessing Officer is accordingly directed to compute the income under the provisions of section 44BB of the Act. 9. In ground nos. 2 3 the appellant has raised an issue t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved in this appeal, on facts and law, is squarely covered and has already been resolved by our judgement dated 20.9.2007 renderred in I.T.A. No. 86 of 2007, the CIT Dehradun and other v. ONGC (As agent of M/s Rolls Royce Pvt. Ltd. Singapore). This appeal is disposed of in the terms and conditions of the aforementioned judgement. Accordingly, the appeal is allowed. The question is answered in favour of the Revenue and against the assessee." 7. As per the order dated 20.9.2007 the Hon'ble High Court of Uttarakhand in the case of ONGC (supra) as representative assessee of M/s Rolls Royce Pvt. Ltd. Singapore had held that the services rendered under the contract are technical in nature and accordingly, it was held that the services rendered w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court as above. 11. However, it was also noted that assessee has submitted before the Tribunal that Ld. Commissioner of Income Tax (A) has erred in not directing the Assessing Officer to treat such receipts as exempt from tax in India. In this regard, I find that the Tribunal in order dated 09.2.2007 has noted that the assessee's contention is that the income is not chargeable to tax in view of the Article 22 of Double Tax Avoidance Agreement between India and UAE. The tribunal has also noted that this issue of chargeability of tax in view of Article 22 of DTAA between India and UAE has to be looked after by the Assessing Officer. The Assessing Officer was directed to look into the matter to give a specific finding as to whether the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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