9911796707
TMI Blog2012 (11) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... ia so as to bring it within the ambit of Circular No. 700 dated 23.3.95. - ITA No.483/Del./2009 - - - Dated:- 25-5-2012 - SHRI U.B.S. BEDI, SHRI B.C. MEENA, JJ. Assessee by : Prof. S. Sampath, Adv. Revenue by : Smt. Renuka Jain Gupta. Sr.DR ORDER PER U.B.S. BEDI, J.M. This appeal of the department is directed against the order passed by CIT(A) XIX, New Delhi dated 16.10.2008, relevant to assessment year 1995-96, in which the following solitary ground has been raised: On the facts and in the circumstances of the case, the CIT(A) erred in allowing deduction u/s 80-O of I. T. Act, 1961 ignoring the provisions of explanation (iii) to section 80-O and misplacing reliance on circular 700 dated 23.03.1995. Reliance is also placed on the decision of Hon ble Delhi High Court of Delhi in the case of Anand Anand vs. CIT, 286 I.T.R. 432(Del.). 2. This appeal was earlier disposed of by this bench vide order dated 25.9.2009, on miscellaneous application of the assessee, it came to be recalled vide order dated 3.6.2011. 3. Facts indicate that the assessee company is in receipt of foreign currency of Rs.98,32,507/- against professional and technical se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Eicher Consultancy Services Ltd., (214 CTR 126), wherein CBDT circular No.700 dated 23.3.1995 was dealt with, has held that the claim of the assessee u/s 80-O was as per law. Aggrieved by the same, Revenue is in further appeal before us. 9. It was argued by Ld.Sr.DR that the CIT(A) has placed wrong relieance on the decision of Hon ble Delhi High Court in the case of Eicher Consultancy Services Ltd. (supra). He further contended that dispute in the instant appeal does not relate to utilization of services in India or outside India by recipient of services i.e. non-resident. However, the dispute in the instant case relates to rendering of services whether in India or from India. He invited our attention to the details observation made by the Assessing Officer with respect to each and every agreement entered into by the assessee with different parties for rendering such services and the finding recorded by the Assessing Officer to the effect that in respect of agreement with Daewoo Shipbuilding and Heavy Machinery Ltd., the assessee has rendered services to ONGC inside India, therefore, claim of deduction u/s 80-O, cannot be allowed. Our attention was also invited by the Ld.Sr.DR t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isallowed by the Assessing Officer and CIT(A) is not justified in reversing the order of Assessing Officer which should be set aside and Assessing Officer s order be restored in this regard. 12. We have considered the contentions of the rival sides and gone through the orders of the authorities below as well as precedents relied upon. Controversy in the instant appeal revolves around eligibility of claim of deduction u/s 80-0, and relevant provisions as contained in this section, which reads as under: " "Where the gross total income of an assessee, being an Indian company [or a person (other than a company) who is resident in India]], includes [any income received by the assessee from the Government of a foreign State or foreign enterprise in consideration for the use outside India of any patent, invention, design or registered trade mark] [and such income is received in convertible foreign exchange in India, or having been received in convertible foreign exchange outside India, or having been converted into convertible foreign exchange outside India, is brought into India, or on behalf of the assessee in accordance with any law for the time being in force for regulating paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the foreign enterprises are independent agreements and, therefore, no interference can be drawn that assessee was working for ONGC. In fact, assessee was required to render services with reference to the platform on high seas to be constructed by the foreign parties for ONGC. Therefore, the crucial question to be answered is whether the services rendered by the assessee falls within the ambit of the circular issued by the CBDT. Since no proper exercise has been made in this regard, we, in the interest of justice, set aside the order of CIT(A) and restore the matter to the file of AO for fresh adjudication in the light of the Board Circular after examining the relevant material/evidence which may be produced/furnished by the assessee. A reasonable opportunity would be allowed to the assessee in this regard." 14. Hon'ble Jurisdictional High Court in the case of Eicher Consultancy Services Ltd.(supra), following was the observation of the Hon'ble Court:- "On the question whether the services have been rendered from India or in India, as already noticed, the clarification issued by the CBDT categorically states, that as long as the services are provided to a foreign entity, the mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endered by the assessee in the instant case are from India. We find no infirmity in the said conclusion arrived at by two authorities. " 17. On the basis of the finding of the CIT(A) and the Tribunal that the services were rendered from India, the Hon'ble High Court found that services provided to a foreign entity are entitled to deduction u/s 80-0 notwithstanding the fact that recipient of such services utilized the benefit of such services in India. In so far as services are rendered from India, there is no bar on allowing deduction u/s 80-0 merely on the plea that foreign entities have utilized those services in India. Thus the basic condition for rendering services from India is present in both the cases decided by Hon'ble Delhi High Court. In the instant case before us, the AO had categorically recorded a finding that services were rendered by assessee in India, therefore not eligible for deduction u/s 80-0. While allowing the assessee's claim for deduction u/s 80- 0, the CIT(A) recorded following findings:- "ONGC awarded contract for construction of platforms on high sees to various foreign parties out of which some of the foreign parties had entered into an independent c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
