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TMI Blog2014 (2) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... per cent - The scheme of presumptive determination u/s 44BB of the Act has been considered and the section is a complete code in itself and provides for taxation of all receipts whether arising in India or outside - Thus, for the purpose of presumptive determination of assessee's profits, quantum of amount received by it from its customers against its reimbursement of fuel and material recharge, which are intricately linked to the services were rendered by the assessee and incurred by it, has to be considered as a part of the receipt for the purposes of computation of income u/s 44B of the Act – Decided against Assessee. - I.T.A.No.505/Del/2013 - - - Dated:- 16-8-2013 - Shri B. C. Meena And Shri Chandra Mohan Garg,JJ. For the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Income-tax Act, 1961 (hereinafter referred to as the Act) issued on 1st September, 2009. During the course of assessment proceedings, the Assessing Officer (A.O. in short) noticed that the assessee had a permanent establishment (PE) in India through which it was carrying on business activities in India. Since the assessee did not claim any benefit under the relevant DTAA nor submitted any tax residency certificate, the AO assessed the income of the assessee under the relevant provisions of the Act. The Assessing Officer noticed, inter alia, that the assessee received certain reimbursements on account of fuel recharges but did not include the same in the gross receipts for the purpose of computation of tax liability in terms of provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and- INTL) dated September 20, 2007, included the amount of reimbursements towards FTS while determining tax liability of the assessee vide draft order dated 30thDecember, 2010. 3. Thereafter, the assessee approached DRP contending, inter alia, that the AO erred in holding that provisions of section 44BB of the Act were not applicable in their case to the extent the assessee provided integrated services for drilling operations on the rigs and that reimbursement of fuel recharge aggregating to Rs. 257,840,586/- was not in the nature of fee for technical services. Inter alia the assessee filed detailed written submissions. After considering the objections of the assessee, the DRP vide their order dated 12th September, 2011 while holding tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO in the light of the directions of the DRP in ground nos.1 and 2 of the appeal. At the outset, both the parties agreed that the issue is squarely covered by the decision of Hon'ble Jurisdictional High Court in the case of Commissioner of Income Tax Vs. Halliburton Offshore Services Inc. ,300 ITR 265(Uttarakhand). 5. We have heard both the parties and gone through the facts of thecase. We find that Hon'ble jurisdictional High Court in their aforesaid decision Halliburton Offshore Services Inc. (supra) while adjudicating an identical issue concluded as under:- "5. Sec. 44BB provides that the deemed profits and gains under sub-s. (1) shall be @ 10 per cent of the aggregate amount specified in sub-s. (2). We proceed to analyze sub-s. (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Therefore, in our view, the Tribunal fell into error in not appreciating the difference between the amount and the income. Amount paid or received refers to the total payment to the assessee or payable to the assessee or deemed to be received by the assessee, whereas income has been defined under s. 2(24) of the IT Act and s. 5 and s. 9 deal with the income and accrued income and deemed income. Sec. 4 is the charging section of the IT Act and definition as well as the incomes referred in ss. 5 and 9 are for the purpose of imposing the income-tax under s. 143 (3). Sec. 44BB is a complete code in itself. It provides by a legal fiction to be the profits and gains of the non-resident assessee engaged in the business of oil exploration @ 10 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee has preferred an appeal before the Jurisdictional High Court of Uttarakhand in this regard but he fairly conceded that the order of Coordinate Bench of the Tribunal still holds field because the same has not been set aside or modified by the Hon'ble higher appellate forum till date. In view of above, we observe that the present case is also squarely covered by the above judgment of ITAT Delhi 'F' Bench dated 27.4.2012 in ITA No. 5287/Del/2011 for AY 2008-09 (supra) and the sole ground of the assessee deserves to be decided against the assessee. The assessee's representative has placed his reliance on the judgment of Hon'ble Jurisdictional High Court of Uttarakhand in the case of Haliburton Offshore Service Inc (2008) 300 ITR 265 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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