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TMI Blog2009 (2) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... ERMA, J. Sri Arvind Vashist, learned Standing Counsel for appellants. Sri S.K. Posti, learned counsel for respondent. JUDGMENT The judgment of the court was delivered by B.C. KANDPAL, ACJ. - This Income Tax Appeal under Section 260-A of Income Tax Act has been filed by the Commissioner of Income Tax, Dehradun and another, against the judgment and order dated 17.10.2006 passed by Income Tax Appellate Tribunal, Delhi Bench 'G' New Delhi, in I.T.A. No. 4762/Del/2005 for the assessment year 2004-05. The Income Tax Appellate Tribunal (ITAT) has dismissed the appeal of the appellant/Revenue by holding that CIT (A) has rightly held in both the cases that the proportionate receipts were taxable in India. 2. It appears from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) mentioned above has clearly held that mobilization charges received by the NRC outside India attributed to the transportation of rigs outside the territorial water of India are not chargeable to tax u/s 44BB. 5. The ld. AR has submitted the details of voyage and the distance traveled within India is 200 nautical miles out of total distance traveled of 9940 nautical miles. The percentage of voyage conducted in India territorial waters, therefore, amounts to 2.0121%. Thus, the proportionate revenue taxable in India amounts to Rs.9,47,4778/-. The appellant gets relief accordingly." The Revenue Department preferred the appeal before the ITAT against the judgment of CIT (A) and the ITAT after having considered the rival submissions raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... co Forex International Drilling Inc. Dehradun in I.T.A. No. 14 of 2007, vide judgment and order dated 20th September, 2007 has held as under: "Thus, it is clear that sub-section (1) of Section 44BB specifically provides that aggregate of amounts specified in sub-section (2) shall be taken into account, 10 per cent of which shall be deemed to be profits and gains. This amount is the basis of determination of deemed profits and gains of the assessee @ 10 per cent. Sub-section (2) provides that amounts referred shall be amount paid or payable to the assessee (whether in or out of India) and the amount received or deemed to be received in India on account of the provision of services and facilities in connection with, or supply of plant and m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g has been recorded by the ITAT that it was not in dispute before the Tribunal that the payment was made to the appellant company outside India and the mobilization fee as claimed by the assessee was paid to the appellant by ONGC has no nexus with the actual amount incurred by the appellant company for transportation of drilling units of rigs to the specified drilling locations in India. Hence, the mobilization fee is not the reimbursement of expenditure. ONGC was liable 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 R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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