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2014 (7) TMI 723 - HC - Income TaxTaxability of income u/s 44BB or u/s 44DA - acquiring and processing three dimensional marine seismic data with respect to offshore block - appellant (assessee) opted to be taxed on presumptive basis under Section 44BB(1) of the Act at the rate of 10% of the gross revenue - AO rejected the contention of assessee and observed that the services provided by the assessee were technical in nature and its income from providing services fell within the definition of “fees for technical services” as defined by provisions of Section 9(1)(vii) of the Act, which was liable to be taxed under the provisions of Section 115A – Held that:- Section 44BB(1) of the Act would not be applicable with respect to incomes which are included u/s 115A of the Act - in respect of income from technical services, section 44BB(1) of the Act would not be applicable unless the income falls within the scope of 44DA(1) of the Act, which could only be applied if an assessee being a foreign company, had a PE in India - the tax on income would be liable to be computed in accordance with section 44BB(1) of the Act – Relying upon Geofizyka Torun Sp. zo. o.[ 2009 (12) TMI 4 - AUTHORITY FOR ADVANCE RULINGS[ - Section 44BB of the Act, being industry specific was a special provision and would, thus, override the provisions of Section 44DA(1) of the Act in respect of income which fall within the ambit of Section 44DA(1) of the Act but had arisen in respect of business carried on in connection with prospecting for, or extraction or production of mineral oils. The assessee is engaged in business for providing services in connection with prospecting for mineral oils, its income if it falls within the ambit of Section 44DA(1) of the Act would be taxable under Section 44BB(1) - the income falling within Section 115A(1)(b) of the Act which does not fall within the four corners of Section 44DA(1) of the Act would also not be taxable under Section 44BB(1) of the Act, for the reason that by virtue of proviso to Section 44BB(1) of the Act, the same is excluded - the AO would specifically have to determine as to whether the assessee had a PE in India during the relevant period and if so, whether the contracts entered into by the appellant with BG and RIL were effectively connected with the appellant’s PE in India – Decided in favour of Assessee.
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