TMI Blog2005 (10) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... geable to tax in India and consequently was there an obligation on the part of the appellant to deduct tax at source in the case of Boudier Christian v. ITO [1993] 46 ITD 114 (Delhi) which was a case of expatriate employee employed with the appellant. The Tribunal held that the appellant herein did not have a fixed place of business in India or had any permanent establishment in India. The Tribunal also held that the payment which the appellant receives from ONGC was in the nature of fees for rendering technical services and was not in the nature of an industry or commercial profits. As a natural corollary to the aforesaid conclusion the Tribunal also concluded that salary which the appellant paid to the expatriate employees were not chargeable to tax in India as per Article XIV(2) of the DTAA between India and France. In the case of several other expatriate employees of the appellant the Tribunal had followed the order in the case of Boudier Christian. The Allahabad High Court had also confirmed these orders of the Tribunal. 3. In the income-tax proceedings of the appellant for the assessment year 1984-85, which are different from the proceedings referred to above, which were in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in the Contracting State in which his service is rendered. (ii) Notwithstanding the provisions of paragraph (1) of this Article, salaries, wages or other similar remuneration paid to an individual who is a resident of one of the Contracting States for services performed in that other Contracting State shall not be subjected to tax in that other Contracting State and may be subjected to tax in the former Contracting State, if: (a) He is present in that other Contracting State for a period or periods not exceeding in the aggregate 183 days in the taxable year concerned, and (b) The remuneration is paid by or on behalf of an employer who is not a resident of that other Contracting State, and (c) The remuneration is not deducted in computing the profits of a permanent establishment chargeable to tax in that other Contracting State. 7. The assessee while filing the return of income for the assessment year 1988-89 specifically made a distinction between drilling operation through its own rig lie D'Amsterdam which was considered by it as business operation carried on in India and chargeable to tax under Article III of the DTAA with France. It also highlighted the fact fees rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; derived from operations in India. There being a net loss, the Company is not subject to any tax in India and it is claimed that the tax amounting to Rs. 1,76,56,052 deducted at source by ONGC on payments made lo the company be refunded. 4. Even under the Income-tax Act the unabsorbed depreciation of last year Rs. 9,55,59,728 is available for set off against income in the current year as per the provisions of sections 71 and 72 of the Income-tax Act, 1961. 8. It is also pertinent to mention that the return of income for the assessment year 1988-89 was filed by the appellant on 5-9-1988. At this point of time there was a dispute as to whether the consideration received were to be considered as fees for technical services or business income under section 44BB. The decision in Scan Drilling's case was rendered in June, 1988. The CBDT issued it's instruction No. 1862 dated 22-10-1990. The order in the case of Boudier Christian was passed on 13-5-1991. The ITAT applied the provisions of section 44BB of the Act to the fees for technical services on proceeds of management and manning, drilling contracts received by the assessee in assessment year 1984-85 on 16-3-1995 and in assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable which have been erroneously disregarded. (c) That the decisions in appellant's own cases both for corporate taxation as well as taxation of expatriates are squarely applicable and are binding. But inadvertently not following the binding decision in a mistake apparent on record. ACIT v. Saurashtra Kutch Stock Exchange Ltd. [2003] 262 ITR 146 (Guj.) (d) That judicial propriety is to be adopted in following the binding decision of jurisdictional High Court and various decisions of ITAT, Delhi Bench in appellant's own cases, which have been accepted by the department for the assessment years 1984-85, 1985-86 and 1986-87 and, therefore, legally can neither be disregarded nor deviated on similar facts: Reliance was placed on the following decisions: Agarwal Warehousing Leasing Ltd. v. CIT [2003] 257 ITR 235 (MP) Berger Paints India Ltd. v. CIT [2004] 266 ITR 99 (SC) CIT v. L.G. Ramamurthi [1977] 110 ITR 453 (Mad.) CIT v. S. Devraj [1969] 73 ITR 1 (Mad.) (e) That this petition is not a review petition but a petition for rectification of substantive glaring and obvious mistake and that the Hon'ble Tribunal has full power to recall its order for rectification ..... 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