Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2015 (5) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2015 (5) TMI 582 - AT - Income TaxApplicability of provisions of section 44BB - interpretation of the legislative intent behind the scheme of taxation envisaged in 9(1)(vii) rw 44DA and 44BB - whether the provisions of Section 44BB will apply to the facts or whether Section 44DA will be applicable on the facts of this case? - whether hire of equipment and personnel was not in the nature of FTS and equipment Royalty squarely covered u/s 9(1)(vii)? - Held that:- The CIT(A) following the decision of a coordinate bench in the case of CGG Veritas (2012 (4) TMI 280 - ITAT DELHI ) and noting that the assessee has a PE in India and that the case pertains to assessment year prior to 2011-12), correctly upheld the contention of the assessee, and has, accordingly, held that the income is liable to tax@ 10% under section 44 BB of the Act - Decided in favour of assessee. Interest under section 234B - CIT(A) deleted interest levy - Held that:- The issue is covered, in favour of the assessee, by a full bench decision of DIT Vs Maersk Co Ltd [2011 (4) TMI 886 - Uttarkhand High Court ] and the CIT(A) has merely followed the said decision, but yet the Assessing Officer is aggrieved that, as this decision has been challenged in appeal before Hon’ble Supreme Court, the CIT(A) ought not to have followed the same. Such a plea can only be stated and rejected. The mere fact that a binding judicial precedent has been challenged before a higher forum does not dilute, curtail or otherwise affect its binding nature. Once Hon’ble jurisdictional High Court has expressed a considered view on an issue, all the lower authorities in the judicial hierarchy, including this Tribunal as indeed the CIT(A), have to loyally follow this. There is no scope for deviating from this solemn duty. On this aspect of the matter, thus, the stand of the CIT(A) cannot be faulted - Decided in favour of assessee. Inclusion of service tax in the gross receipts for determining income under section 44BB - Held that:- Learned consel’s defence consists only of the decision of a coordinate bench of this Tribunal, in the case of Sedco Forex International Drilling Inc Vs ADIT (2012 (7) TMI 250 - ITAT, DELHI) but then in this case, the earlier binding precedent in the case of DDIT Vs Technic Offshore Contracting BV (2009 (1) TMI 533 - ITAT DELHI) was not brought to their notice. Such a decision, in view of the Hon’ble Andhra Pradesh High Court Full Bench decision in the case of CIT Vs BR Construction (1992 (6) TMI 13 - ANDHRA PRADESH High Court ), is per incurium and not a binding precedent - Decided against assessee.
|