9911796707
TMI Blog2012 (10) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... is bad both in law and on facts of the case. 2. That the ld. AO has erred in mechanically following the orders of earlier years wherein it was held that the assessee had a P.E. in India. 3. That the ld. AO, mechanically relying upon the orders of earlier years, has erred in rejecting the contention of the assessee that amount receivable under the contract towards supervision of erection, and commissioning is chargeable to tax u/s 44BBB of the I.T. Act, 1961. 4. That the ld. AO has erred in mechanically following the orders of earlier years wherein it was held that the relevant amounts were- (i) attributable to the alleged P.E., (ii) represented income of the nature of 'fees for technical services' (iii) were chargeable to tax on gros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning of OHPC's personnel. The scope of work of Siemens Ltd. under the agreement included, supply of indigenous equipment, planning, dismantling, repairing and erection, testing and commissioning. The assessee company guaranteed to OHPC about the due performance of contractual obligations by Siemens Ltd. In terms of the provisions of Income Tax Act read with DTAA between India and Germany, the assessee had offered for taxation the amount received for supervision of erection and commissioning for taxation in India. In terms of provisions of Section 44BBB of the Act, the said income as per its nature, received by the assessee was liable to tax at deemed profit rate of 10%. The assessee filed a computation of income before DDIT and informed tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t order. 5. As per directions of DRP-II, the DDIT passed final assessment order dated 4.10.2010 u/s 144C and 143(3) of the Act. The Assessing Officer computed the total tax payable at Rs.6,86,270 and also levied surcharge of Rs.35,58,155. Aggrieved, the assessee company has filed this appeal before us against the order of Assessing Officer dated 4.10.2010 passed in pursuance of directions of DRP-II as stated above. 6. During the arguments, the assessee's representative submitted that he does not want to press ground no. 5 and 6. Hence, these are dismissed as not pressed. The learned counsel for the assessee contends that ground nos. 1 and 8 are general in nature which need no adjudication. Ground nos. 2, 3 and 6 raised by the assessee are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting and commissioning the activities of the assessee cannot be said to fall within the meaning of the term, "business of erection of plant or machinery or testing or commissioning" as provided in the provisions of section44BBB, or to fall within the meaning of the terms, "construction or assembly" as provided in the exclusions provided in explanation 2 to section 9 (1) of the act. Once it is found that the assessee has not been able to prove that the assessee has involved itself in the physical activities of the business of assembly or erection of the plant or machinery or testing or commissioning of the power project but has only done the supervision simpliciter of the same the assessee would not be eligible to be taxed under the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e circumstances we are of the view that interest under section 234B is not leviable on the assessee as the receipts of the assessee under the contract is liable for TDS. In the circumstances respectfully following the decision of the Special Bench of this tribunal in the case of M/s. Motorola referred to supra the interest levied under section 234B stand deleted. In the circumstances the ground No. 6 of the assessees appeal stand partly allowed." 8. We have heard arguments of both the parties in the light of judgment of Hon'ble Jurisdictional High Court of Delhi and orders of ITAT, Delhi, 'H' Bench as referred hereinabove and also perused the material on record before us. As per findings of the ITAT Delhi 'H' Bench for AY 2004-05 and 2006- ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
