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TMI Blog2018 (7) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in the case of CIT Vs.Enron Espat Services Inv. [2009 (9) TMI 565 - UTTARKHAND HIGH COURT] has categorically held that if the receipt by a non-resident is exempt from tax under the relevant DTAA, the said amount cannot be brought to tax u/s 44BB - thus hold that receipts of the non residents are not taxable in India u/s 9(1)(i) of the Act under the treaty - Decided in favour of assessee. - ITA No. 1330/DEL/2016 And ITA No. 1332/DEL/2016 - - - Dated:- 29-6-2018 - SHRI H.S. SIDHU, JUDICIAL MEMBER, AND SHRI N.K. BILLAIYA ACCOUNTANT MEMBER For The Assessee : Shri Ajay Vohra, Sr. Adv, Shri Gaurav Jain And Ms. Manisha Sharma For The Revenue : Shri Surender Pal, Sr. DR ORDER PER N.K. BILLAIYA, ACCOUNTANT M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... June, 2007 and ONGC took possession of the project. Since the construction of the platform deck was under progress, ONGC entered into a contract dated 31.07.2010 with Gulf Piping for providing services in relation to construction of the deck. The entire scope of work was undertaken by Golf Piping in UAE and ONGC was to collect/sail away the deck therefrom. During the year under consideration, ONGC made payment of ₹ 5.50 crores to Gulf Piping in accordance with the aforesaid contract which was never offered to tax in India since the entire work was executed outside India. 4. We find that the Assessing Officer brought the aforesaid receipts to tax in India u/s (9)(1)(i) of the Act holding the same to be income accruing or arising in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se the same is exempt as per Article 5 read with Article 7 of Indo UAE DTAA. In our considered opinion, merely because the assessee had taken same alternative plea without prejudice to the main contention, the same cannot be held against the assessee as there is no estoppel in law. For this proposition, we draw support from the decision of the Hon'ble Delhi High Court in the case of CIT Vs. Bharat General Re-insurance Co. ltd 81 ITR 303[ Del] and HCL Technologies Vs. ACIT 377 ITR 483 [DEL]. 8. Moreover, the Hon'ble Uttarakhand High Court in the case of CIT Vs.Enron Espat Services Inv. 327 ITR 626 has categorically held that if the receipt by a non-resident is exempt from tax under the relevant DTAA, the said amount cannot be brou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on taxable in India under the provisions of DTAA between India and USA. The Assessing Officer brought the aforesaid receipts to tax as fees for technical services u/s 9(1)(vii) r.w.s 115A of the Act. 13. The matter was agitated before the ld. CIT(A) and it was strongly contended that the receipts of the non-resident are not taxable in India both under the Act as also in terms of Indo-USA DTAA. In the alternative, it was pleaded that if the receipts are made to be taxable in India, then the same should be considered u/s 44BB of the Act. Both the contentions of the assessee were dismissed by the ld. CIT(A). 14. Before us, the ld. counsel for the assessee brought to our notice that a similar view was considered by the Tribunal in assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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