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TMI Blog2015 (5) TMI 582X X X X Extracts X X X X X X X X Extracts X X X X ..... the CIT(A) has erred in referring to the decision of the ITAT in the case of M/s CGG Veritas in holding that the income of the assessee company was covered under the provisions of section 44BB ignoring that the said decision of the ITAT has not been accepted by the department against which a miscellaneous petition has been filed. 3. Whether on the facts and circumstances of the case, the CIT(A) has erred in holding that the hire of equipment and personnel was not in the nature of FTS and equipment Royalty squarely covered u/s 9(1)(vii) of the l.T. Act, 1961. 4. Whether on the facts and circumstances of the case, the CIT(A) has erred in holding that the income of the assessee was taxable under the presumptive provisions of section 44BB even though the nature of services rendered by the assessee were technical in nature and not for a project undertaken by the assessee. 5. Whether on the facts and circumstances of the case, the CIT(A) has erred In interpretation of the legislative intent behind the scheme of taxation envisaged in 9(1)(vii) rw 44DA and 44BB and the insertion of second proviso to sub-section (1) of Section 44DA and a reference to Section 44DA in the proviso below sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court in the case of Sedco Forex International Drilling vs. CIT. 12. Whether the facts and circumstances of the case the CIT(A) has erred in holding that interest u/s 234B was not chargeable in this case by relying upon the decision of Hon'ble Uttarakhand High Court in the case of Maersk (334 ITR 79) whereas the department has contested the issue and has filed SLP before the APEX Court against in the case of Jacobs Civil incorporated/Mitsubishi involving similar issue. 13. Whether on the facts and circumstances of the case, the CIT(A) has erred in not appreciating the finding given by the AO who had held that the Fee for Technical/service/Royalty received by the assessee which is a non-resident company was correctly estimated @ 25% of gross receipts as per the requirements of Rule 10 of the Income Tax Rules, 1962 in the absence of books of accounts and taxed accordingly. 4. As a careful reading of the above rather detailed grounds of appeal would show, the two short issues that we are really required to adjudicate on this appeal is whether or not the learned CIT(A) was justified in holding that the provisions of Section 44BB of the Act, and whether or not the learned C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide track package. 5. Contract No. : 2001/GENL/E1-DR-O-63E-MAC with Reliance Industries Limited for provision of DMM, Directional Drilling and Sidetrack Package. 6. Contract No. : SU4C0438 with Niko Resources. 7. Contract No. : HAZ-34232 with Niko Resources. 8. Contract No. : 2003/B/G/D/597 with BG Exploration & Production India Limited for extended reach drilling in Tapti and Panna areas - feasibility study. 9. Contract No. : RJ2Cb5001 with Cairn Energy India Pty Limited for provision of mud chemicals, technical services and laboratory equipments. 10. Contract No. : RJCB5028 with Cairn Energy India Pty Limited for provision of directional drilling services. 11. Contract No. : KG4CA000011A with Cairn Energy India Pty Limited for provision of directional/MWD/LWD Services. 12. Contract No. : CBCA000013A with Cairn Energy India Pty Limited for provision of directional/MWD/LWD Equipment Services. 13. Contract No. : CB3CA000016A with Cairn Energy India Pty Limited for Wireline Logging and TCP Services. 14. Contract No. : CB3A000017A with Cairn Energy India Pty Limited for VSP Equipment & Services." 5. There is no dispute that the income earned by the assessee is from hiring o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of royalty/ FTS, and not for a project undertaken by the appellant, is not eligible for benefit of Section 44BB as it would be contrary to the decisions of Hon'ble jurisdictional High Court in the cases of Foamer France and Rolls Royce. It is contended that the provisions of Section 44DDA, as in force with effect from 1st April 2011, are clarificatory in nature and have to be read into the provisions of the Act. Its her contention that the provisions of Section 44BB are meant for the first leg contractors engaged in prospecting, extracting and producing mineral oils, and that the benefit of these provisions cannot be extended to the vendors and suppliers of such first leg contractors. It is submitted that doing so would amount to base erosion and profit shifting from developing countries. A reference is then made Heydon's rule and submitted that the amendments in the scheme of Section 44BB and 44DA, vide Finance Act 2010, though stated to be effective from assessment year 2011-12 must be treated as clarificatory in nature. A reference is made to the decision of Hon'ble Supreme Court, in the case of Union of India Vs Gosalia Shipping Pvt Ltd (113 ITR 307) for the proposition that wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts advanced by the learned Commissioner (DR), as was laid down by Hon'ble Supreme Court in the case of Ambika Prasad Mishra vs. State of UP AIR 1980 SC 1762 : (1980) 3 SCC 719 (p. 1764 of AIR 1980 SC), "Every new discovery nor argumentative novelty cannot undo or compel reconsideration of a binding precedent... A decision does not lose its authority merely because it was badly argued, inadequately considered or fallaciously reasoned....". Similarly, in the case of Kesho Ram & Co. vs. Union of India (1989) 3 SCC 151, Hon'ble Supreme Court had observed that "(t)he binding effect of a decision of this Court does not depend upon whether a particular argument was considered or not, provided the point with the reference to which the argument is advanced subsequently was actually decided in the earlier decision....." In view of these discussions, we see no reason to take any other view of the matter than the view taken by the coordinate benches and respectfully following the views of the coordinate bench, we approve the conclusions arrived at by the learned CIT (A) and decline to interfere in the matter. 3. We see no reasons to take any other view of the matter than the view so taken by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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