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TMI Blog2015 (1) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... pose of determining income or not – Held that:- Following the decision in M/s Sedco Forex International Drilling Inc C/o Nangia & Company Versus Assistant Director of Income Tax, International Taxation [2014 (1) TMI 1322 - ITAT DELHI] - The amount had been received by the assessee - Therefore, the Assessing Officer added the said amount which was received by the non-resident company rendering services under the provisions of section 44BB and imposed the income tax – Decided against Assessee. Determination of income u/s 44BB - Receipts against the service tax to be included in the gross receipts for the purpose of determining income or not - Held that:- Following the decision in M/s Sedco Forex International Drilling Inc., C/o Nangia & Co., Versus Additional DIT, International Taxation, Dehradun [2012 (7) TMI 250 - ITAT, DELHI] - The service tax is a statutory liability like custom duty - service tax being a statutory liability, would not involve any element of profit and accordingly, it could not be included in the total receipts for determining the presumptive income - service tax paid by the assessee could not form part of amount for the purpose of deemed profits u/s 44BB unli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1961 vide Draft Assessment Order dated 23.11.2012. 4. Against the above order dated 23.11.2012, the assessee filed the objections before the Disputes Resolution Panel(DRP)-II, New Delhi, who vide its impugned order dated 31.7.2013 held that no interference is required to be made in the draft assessment order passed by the AO on any of the above three grounds. The objections of the applicant are disposed of accordingly. 5. Pursuant to the DRP s directions the Assessing Officer assessed the income of the assessee at ₹ 16,89,06,810/- u/s. 143(3) read with section 144C(13) of the I.T. Act, 1961 vide his order dated 22.8.2013 6. Against the above order the assessee is in appeal before us. 7. We have heard both the sides and perused the material placed before us. With regard to ground no. 1 regarding mobilization revenue of ₹ 70,348,648/- is concerned, the Ld. DR during the hearing has filed a copy of the decision of the ITAT, Bench H , New Delhi passed in ITA No. 4906/Del/2012 (A.Y. 2009- 10) in the case of Westerngco International Ltd. vs. ADIT (Intt. Taxation), Dehradun vide order dated 24.1.2014 and submitted that the issue in the present case is squarely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jurisdictional High Court has been pointed by the assessee s counsel. In view of the above, we respectfully following the above decision of the Hon ble High Court of Uttarakhand and also the decision of the ITAT decide the issue against the assessee. 8. With regard to ground no. 2 regarding reimbursement of expenses of ₹ 20,725,491/- is concerned, we find that this issue is also squarely covered against the assessee by the decision of the ITAT, Bench G , New Delhi passed in ITA No. 504/Del/2013 (A.Y. 2009-10) in the case of M/s Sedco Forex International Drilling Inc. vs. ADIT (Intt. Taxation), Dehradun vide order dated 2.8.2013. The Tribunal vide its aforesaid order dated 2.8.2013 has adjudicated the issue vide para no. 5 as under:- 5. Ground No.3 of the assessee s appeal reads as under:- That the ld.CIT(A) has erred on facts and in law in affirming the action of the A.O. in holding that the amounts aggregating to ₹ 284,583,205/- received by the appellant from its customers as reimbursement of actual expenses incurred by the appellant on their behalf is to be included in the gross receipts u/s 44BB of the Income Tax Act, 1961. 6. At the time of hearing b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the this decision has also been followed earlier by the Tribunal in ITA No. 504/Del/2013 (A.Y. 2009-10) in the case of the same assessee vide which the Tribunal has decided the issue in favor of the assessee vide its order dated 02.8.2013. The relevant paras 3 to 4 are reproduced hereunder :- 3. We have heard both the sides and perused the material placed before us. We find that this issue is covered in favour of the assessee by the decision of ITAT in assessee s own case for AY 2008-09 dated 29th June, 2012 vide ITA No.5284/Del/2011, wherein the ITAT held as under:- The service tax is a statutory liability like custom duty. Hon ble Uttarakhand High Court in their decision in Schlumberger Asia Services Ltd. (supra) concluded that reimbursement of custom duty paid by the assessee could not form part of amount for the purpose of deemed profits u/s 44BB unlike the other amounts received towards reimbursement. Following the view in this decision, Mumbai Bench in their decision in Islamic Republic of Iran Shipping Lines (supra) held that service tax being a statutory liability, would not involve any element of profit and accordingly, the same could not be included in the to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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