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2006 (12) TMI 256 - AT - Income TaxPresumptive income u/s 44BB - Receipt of the mobilization charges - Taxing the entire amount or attributable to the activities carried out in India - Inclusion of the amount reimbursement of expenses in the receipts for the purpose of section 44BB? - HELD THAT:- The assessee is a non-resident person and, therefore, u/s 5(2), only such income which is received or is deemed to be received in India or accrues or arises or is deemed to accrue or arise in India can be included in the total income. In this case, the payments were made outside India and substantial activity of mobilization, etc., was carried out outside India. Therefore, the Hon’ble Tribunal came to the conclusion that only such part of the income, which is attributed to the activities carried on in India can be subjected to tax in the hands of the assessee as the income was received outside India. We find no reason to differ with this decision of the Hon’ble ITAT in the case of Saipem SPA [2003 (12) TMI 280 - ITAT DELHI-B], being the decision of the Third Member which part takes the character of the decision of the Special Bench. Therefore, respectfully following the aforesaid decision, it is held that only that part of the receipt of the mobilization charges, which is attributable to the activities carried out in India is liable to be included in the receipts for the purpose of computing presumptive income u/s 44BB of the Act. Insofar as ground Nos. 5 and 6 are concerned, the decision of the aforesaid cases is that reimbursement of expenses is not includible in the receipts for computing presumptive income u/s 44BB of the Act. Respectfully, following those decisions, it is held that the amounts reimbursed to the assessee cannot be included in the amounts referred to in section 44BB of the Act. In result, the appeal of the assessee is allowed.
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