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TMI Blog2015 (2) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... nto by the assessee with various organizations in India except with respect of the contracts entered into with HOEC and ONGC. As far as income taxable u/s 44BB in respect of various contracts are concerned, the assessee itself has accepted the liability from the very beginning and, therefore it cannot be inferred that assessee would have made any representation which would have influenced the deductor companies for not deducting the tax. However, as far as contract with HOEC and ONGC are concerned, as we have held that income arose in India, therefore, the interest u/s 234B is leviable. Therefore, following the above, we hold that interest was not chargeable u/s 234B of the Act. - Decided in favour of assessee. - I.T.A. No. 1295/Del/2013, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee in I.T.A.No. 1295/Del/2013 and in I.T.A.No. 6181/Del/2012was covered against the assessee by a number of decisions of Uttaranchal High Court such as Sedco Forex International Inc. Vs CIT 299 ITR 238, Commissioner of Income-tax v. Halliburton Offshore Services Inc. [2008] 300 ITR 265 (Uttarakhand), Commissioner of Income-tax v. Trans Ocean Offshore Inc. [2008] 299 ITR 248 (Uttarakhand). Ld. D.R. in respect of ground No.1 heavily relied upon the written synopsis filed by him and our specific attention was invited to para 14 to 14.3 which is extracted below: 14. Provisions of Section 5 (2) (b) applies to the assessee being a non-resident. The reference to clause (a) of explanation to Section 9 (1) (i) of the Act and section 9(1)(vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss connection in India in relation to the same business, the income accruing or arising, whether directly or indirectly, is taxable in India. In the case of the assessee the business is being carried out In India. It cannot be the case of the assessee that it is carrying out its main business outside India and only income from the operations carried out in India is taxable. The assessee has carried out its business in India and source of income is in India and all receipts are taxable in India. In case of the assessee there are no business operations outside India in connection with the payments received by it. 6. Ld. A.R. submitted that he had already stated that the issue raised in ground No.1 is against the assessee. 7. As regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e taxed u/s 44BB of the Act otherwise income needs to be taxed as fee from technical services. The Ld. A.R. agreed that the existence of PE and the fact that contract was effectively connected with PE in India were not examined by Assessing Officer and, therefore, he agreed that the mater can be sent back for examination on these lines. 8. As regards the Revenue s appeal in I.T.A.No. 1283/Del/2013, Ld. D.R. conceded that this issue is against the revenue as held by the tribunal in its own case in I.T.A.No. 5631 5632/Del/2010 for the assessment years 2006-07 2007-08 only if tax had been deducted at source on payments made to assessee. Ld. A.R. made a statement at Bar that tax was deducted from the payments made to assessee. 9. We h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t s PE in India. It is only, if the Assessing Officer finds that the said two conditions were satisfied, that the income of the assessee would be computed under Section 44BB(1) of the Act. However, if such conditions are not satisfied then the income tax payable by the appellant would be computed in accordance with Section 115A(1)(b) of the Act. 10. Though this issue is covered in favour of the assessee in its own case but Hon'ble High Court has further clarified the similar issue in its order dated 09.07.2014 in the case of PGS Geophysical AS, therefore, in this year the issue cannot be decided by following earlier years. 11. We find that the issue decided by Hon'ble High Court is peri-materia with the ground No.2 in I.T.A.N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay a fixed sum as stipulated in the contract regardless of actual expenditure which may be incurred by the assessee-company for the purpose. In view of the fictional taxing provision contained under section 44BB, the Assessing Officer was right in adding the amount of ₹ 99,04,000 for the assessment year 1986-87 and the amount worth ₹ 64,64,530 for the assessment year 1987-88 received by the assessee towards mobilization charges for the purpose of imposing income-tax and the Commissioner of Income-tax (Appeals) and the Income-tax Appellate Tribunal were also right in upholding the order of the Assessing Officer. In view of our foregoing discussion, the appeal is devoid of merit and is dismissed accordingly. Question is ans ..... X X X X Extracts X X X X X X X X Extracts X X X X
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