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2016 (12) TMI 443 - AT - Income TaxClaim u/s 44BBB - whether assessee is a foreign company engaged in the business of erection of generator and testing and commissioning and it is a turnkey project ? - Held that:- The assessee has signed the agreement for the execution of turnkey project with Tamilnadu Electricity Board on 27.12.2006. From the certificate issued by the Central Electricity Authority, Ministry of Power, it was clarified that it is a turnkey project to be treated at par with Power Projects approved by the Government of India for the purpose of section 44BBB of the Act. The letter was issued by the Central Electricity Authority, Government of India, Ministry of Power on 24.11.2008 which was placed before the Assessing Officer also. By Circular No. 552 dated 9.12.1990, it was clarified by the CBDT that an approval issued by the Department of Power in the Ministry of Energy shall be deemed to be approval of the Central Government for the purposes of sec. 44BBB of the Act. Now Ministry of Energy Sources was dispensed with and the Ministry of Power started functioning independently therefore the letter issued by the Ministry of Power is a valid communication on the subject of Electricity and power. No reason to reject the claim of the assessee in the absence of any evidence disproving the genuiness and authenticity of the furnished by the revenue. Secondly, the Assessing Officer rejected the claim stating that the Central Government approval is not available at the time of signing of the contract. Now it is well settled issue that additional claims and supporting documents such as approvals etc may be furnished at the time of assessment before the Assessing Officer or before the appellate authorities which will be treated as sufficient compliance. Since the approval was submitted before the Assessing Officer during the pendency of assessment proceedings, furnishing complete details of the power project and certificate that the contract work of the assessee may be treated as turnkey project for the purposes of sec. 44BBB of the Act and the assessing officer has not dispoved the same we do not find any reason for rejecting the claim of the assessee. Thus it is clear that the assessee has satisfied all the conditions for the purposes of computing the income u/s 44BBB as a turnkey project. Therefore we set aside the orders of the lower authorities and direct the Assessing Officer to compute the income as per sec. 44 BBB - Decided in favour of assessee Design Engineering & Technical and Supervisory services treated as technical services and taxed u/s 115 A r.w. sec. 44D - Held that:- In the case of the assessee, the expenditure was debited the Profit and Loss account and the assessee explained that this was part of the receipt of contract works and no separate receipt was received by the assessee for any stand alone works. This fact was not examined by the A.O. If the payment was part of the contract works the section 44D does not apply and if the receipt was separately made for technical fees then the provisions of section 44D are applicable. Therefore, we set aside the orders of the lower authorities and restore this issue to the file of the Assessing Officer with a direction to examine whether the receipt in question is a part of the contract work or a separate payment and decide on merits after giving opportunity to the assessee. This ground is allowed for statistical purposes.
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