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2018 (5) TMI 2139 - AT - Income TaxMaintainability of appeal - Assessment of appellant on a protective basis - AOP - order is passed by AO on the alleged Association of Persons (‘AoP’) of SASL and not against the Appellant (ie SASL) - HELD THAT:- At the very outset the counsel for the assessee pointed out that impugned issue stand decided in favour of the assessee and against the revenue by the order of the bench in assessee’s own case [2018 (3) TMI 1599 - ITAT NEW DELHI] Thus respectfully following the decision of Hon’ble Delhi High Court in the case of Linde AG Linde Engineering Division vs. DDI (2014 (4) TMI 975 - DELHI HIGH COURT] we hold that Consortium Agreement dated 04/05/03 between Slumberger Asia Services Ltd and Transocean Offshore Deep water Drilling Pvt. Ltd., do not constitute an AOP. Transocean Offshore Deepwater Drilling Inc. being consortium member has rightly offered to tax the receipts u/s 44BB in the return of income. Gross receipts for the purposes of Section 44 BB - presumptive income - As decided in TRANSOCEAN OFFSHORE DEEPWATER DRILLING INC. C/O. NANGIA AND COMPANY [2018 (2) TMI 53 - ITAT DELHI] for the purposes of computing the 'presumptive income' of the assessee for the purposes of Section 44 BB of the Act, the service tax collected by the Assessee on the amount paid is for rendering services is not to be included in the gross receipts in terms of Section 44B (2) read with Section 44 BB (1). The service tax is not and amount paid or payable, or received or deemed to be received by the Assessee for the services rendered by it. The only collecting the service tax for passing it on to the Government. The Court further notes that the position has been made explicit by the CBDT itselfin two of its circulars. In Circular No. 4/2008 dated 28th April 2008 it was clarified that "Service tax paid by the tenant doesn’t partake the nature of "income" of the landlord. The landlord only acts as a collecting agency for Government for collection of Service Tax. Therefore, it has been decided that tax deduction at source) under sections 194-I of Income Tax Act would be required to be made on the amount of rent paid/payable without including the service toot. In Circular No. 1/2014 dated 13th January 2014, it has been clarified that service tax is not to be included in the fees for professional services or technical services and no TDS is required to be made on the service tax component under Section 194 J of the Act. Appeal of assessee allowed.
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