9911796707
TMI Blog2011 (5) TMI 1030X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee had a P.E. in India. 3. That the learned CIT(A), mechanically relying upon the orders of earlier years, has erred in rejecting the contention of the assessee that amount receivable under the contract towards supervision of erection, and commissioning is chargeable to tax u/s 44BBB of the Income-tax Act, 1961. 4. That without prejudice, the learned CIT(A), mechanically following the orders of earlier years, has erred in arbitrarily estimating profit on consideration for supervisory services @ 50% of the gross amount. 5. That without prejudice, the learned CIT(A), mechanically following the order of earlier years, has erred in upholding the subjecting of the receipts of the assessee to tax @ 20% on the gross amount withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne any such activities other than supervision simpliciter of the assembly, erection and testing and commissioning the activities of the assessee cannot be said to fall within the meaning of the term, business of erection of plant or machinery or testing or commissioning as provided in the provisions of section44BBB, or to fall with in the meaning of the terms, construction or assembly as provided in the exclusions provided in explanation 2 to section 9 (1) of the act. Once it is found that the assessee has not been able to prove that the assessee has involved itself in the physical activities of the business of assembly or erection of the plant or machinery or testing or commissioning of the power project but has only done the supervis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act remains that the receipts of the assessee are liable to TDS and TDS has been done. In these circumstances we are of the view that interest under section 234B is not leviable on the assessee as the receipts of the assessee under the contract is liable for TDS. In the circumstances respectfully following the decision of the Special Bench of this tribunal in the case of M/s. Motorola referred to supra the interest levied under section 234B stand deleted. In the circumstances the ground No. 6 of the assessees appeal stand partly allowed. 4. Thus, the taxability issue was held against the assessee and the levy of interest u/s 234B on income liable for TDS was held in favour of the assessee. Aggrieved, the Revenue preferred an appeal befo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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