2004 (11) TMI 579 - AT - Income Tax

Summary

Issues Involved:

1. Applicability of Section 44BB of the Income-tax Act.
2. Taxability of the amount of Rs. 30.53 crore.
3. Examination of foreign expenses claimed in the profit & loss account.

Issue-wise Detailed Analysis:

1. Applicability of Section 44BB of the Income-tax Act:

The primary issue was whether the provisions of Section 44BB were applicable to the assessee, an engineering company involved in the construction and design of petroleum and petrochemical facilities. The Commissioner of Income-tax (CIT) had noted that the Assessing Officer did not examine the applicability of Section 44BB, which deals with the computation of profits for non-residents engaged in the business of providing services or facilities in connection with, or supplying plant and machinery on hire for, the prospecting for, or extraction or production of, mineral oils. The CIT argued that the assessee's activities fell under this section, and thus, 10% of the gross receipts should be deemed as profit chargeable to tax.

The Tribunal, however, found that the assessee had maintained complete books of accounts, which were audited and furnished before the Assessing Officer. The Tribunal referenced the Supreme Court decision in Union of India v. A. Sanyasi Rao [1996] 219 ITR 330, which held that where complete books of accounts are maintained, the profit should be deduced as per the provisions of Sections 28 to 43C, and not under presumptive taxation provisions like Section 44BB. The Tribunal concluded that the provisions of Section 44BB were not applicable to the assessee, and the CIT's direction to examine its applicability was canceled.

2. Taxability of the amount of Rs. 30.53 crore:

The CIT had also noted that the Assessing Officer did not properly examine the taxability of Rs. 30.53 crore received by the assessee, which was included in the total receipts shown in the profit and loss account but was not considered as income for the year. The assessee argued that this amount was not accrued as income in the present year as per the terms of the contract and accounting standards.

The Tribunal found that the Assessing Officer had indeed raised a specific query regarding this amount, and the assessee had provided a detailed reply explaining that the amount was not due for the year under consideration and was recognized in subsequent years when the work was completed and certified. The Tribunal held that the Assessing Officer had applied his mind to this issue and accepted the assessee's explanation. Therefore, the CIT's direction to re-examine the taxability of Rs. 30.53 crore was quashed.

3. Examination of foreign expenses claimed in the profit & loss account:

The CIT had noted that the Assessing Officer did not examine the various expenses claimed in the profit & loss account, including foreign expenses incurred through the Head Office. The Tribunal agreed with the CIT on this point, noting that although a query was raised, there was no specific reply or details provided by the assessee regarding the foreign expenses. The Tribunal found that the Assessing Officer had not applied his mind to this issue.

Therefore, the Tribunal sustained the CIT's direction to examine the allowability of foreign expenses claimed in the profit & loss account.

Conclusion:

The Tribunal allowed the assessee's appeal in part. It held that the provisions of Section 44BB were not applicable to the assessee and quashed the CIT's direction to examine its applicability. It also quashed the CIT's direction to re-examine the taxability of Rs. 30.53 crore. However, it sustained the CIT's direction to examine the allowability of foreign expenses claimed in the profit & loss account.