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TMI Blog2005 (10) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... work on the ONGC jack up rigs were chargeable to tax in India and consequently was there an obligation on the part of the appellant to deduct tax at source in the case of Boudier Christian v. ITO [1993] 46 ITD 114 (Delhi) which was a case of expatriate employee employed with the appellant. The Tribunal held that the appellant herein did not have a fixed place of business in India or had any permanent establishment in India. The Tribunal also held that the payment which the appellant receives from ONGC was in the nature of fees for rendering technical services and was not in the nature of an industry or commercial profits. As a natural corollary to the aforesaid conclusion the Tribunal also concluded that salary which the appellant paid to the expatriate employees were not chargeable to tax in India as per Article XIV(2) of the DTAA between India and France. In the case of several other expatriate employees of the appellant the Tribunal had followed the order in the case of Boudier Christian. The Allahabad High Court had also confirmed these orders of the Tribunal. 3. In the income-tax proceedings of the appellant for the assessment year 1984-85, which are different from the proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acting State may be taxed only in the Contracting State in which his service is rendered. (ii) Notwithstanding the provisions of paragraph (1) of this Article, salaries, wages or other similar remuneration paid to an individual who is a resident of one of the Contracting States for services performed in that other Contracting State shall not be subjected to tax in that other Contracting State and may be subjected to tax in the former Contracting State, if: (a) He is present in that other Contracting State for a period or periods not exceeding in the aggregate 183 days in the taxable year concerned, and (b) The remuneration is paid by or on behalf of an employer who is not a resident of that other Contracting State, and (c) The remuneration is not deducted in computing the profits of a permanent establishment chargeable to tax in that other Contracting State. 7. The assessee while filing the return of income for the assessment year 1988-89 specifically made a distinction between drilling operation through its own rig lie D'Amsterdam which was considered by it as business operation carried on in India and chargeable to tax under Article III of the DTAA with France. It also highl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9,55,59,728 is available for set off against income in the current year as per the provisions of sections 71 and 72 of the Income-tax Act, 1961. 8. It is also pertinent to mention that the return of income for the assessment year 1988-89 was filed by the appellant on 5-9-1988. At this point of time there was a dispute as to whether the consideration received were to be considered as fees for technical services or business income under section 44BB. The decision in Scan Drilling's case was rendered in June, 1988. The CBDT issued it's instruction No. 1862 dated 22-10-1990. The order in the case of Boudier Christian was passed on 13-5-1991. The ITAT applied the provisions of section 44BB of the Act to the fees for technical services on proceeds of management and manning, drilling contracts received by the assessee in assessment year 1984-85 on 16-3-1995 and in assessment years 1985-86 and 1986-87 on 29-10-1998. 9. While completing the assessment in the case of the appellant the Assessing Officer applied 10 per cent of the gross proceeds of manning and management contracts instead of fees for technical services. The Assessing Officer did so in view of the CBDT instruction as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nge Ltd. [2003] 262 ITR 146 (Guj.) (d) That judicial propriety is to be adopted in following the binding decision of jurisdictional High Court and various decisions of ITAT, Delhi Bench in appellant's own cases, which have been accepted by the department for the assessment years 1984-85, 1985-86 and 1986-87 and, therefore, legally can neither be disregarded nor deviated on similar facts: Reliance was placed on the following decisions: Agarwal Warehousing & Leasing Ltd. v. CIT [2003] 257 ITR 235 (MP) Berger Paints India Ltd. v. CIT [2004] 266 ITR 99 (SC) CIT v. L.G. Ramamurthi [1977] 110 ITR 453 (Mad.) CIT v. S. Devraj [1969] 73 ITR 1 (Mad.) (e) That this petition is not a review petition but a petition for rectification of substantive glaring and obvious mistake and that the Hon'ble Tribunal has full power to recall its order for rectification of apparent mistakes as held in Seth Madan Lal Modi v. CIT [2003] 261 ITR 49 (Delhi) CIT v. Mool Chand Shyam Lal [2005] 273 ITR 160 (All.) Champalal Chopra v. State of Rajasthan [2002] 257 ITR 74 (Raj.). 14. The ld. DR opposed the M.A. contending the mistakes pointed out in the M.A. are not mistakes which are apparent on the face o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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