TMI Blog2011 (1) TMI 565X X X X Extracts X X X X X X X X Extracts X X X X ..... other assessees as provided in the aforesaid provisions namely sections 28 to 44AA of the Act would not be applicable in the case of those foreign companies who fulfills the conditions laid down under section 44BBB of the Act - In cases of such companies, this provision which is fictional in nature is made which specifies that a sum equal to 10 per cent of the amount paid or payable to the assessee or to any person on his behalf shall be deemed to be the profits and gains of such persons chargeable to tax - Decided in favour of assessee. - 1392, 1567 and 1568 of 2010 - - - Dated:- 31-1-2011 - H SIKRI A. K., MEHTA M. L. JJ. JUDGMENT A. K. Sikri J.- The admitted facts are that the respondent/assessee is a German company. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 44AB, and there upon the Assessing Officer shall proceed to make an assessment of the total income or loss of the assessee under sub-section (3) of section 143 and determine the sum payable by, or refundable to, the assessee." 2. It is not in dispute that the assessee fulfills all the conditions stipulated in sub-section (1) of section 44BBB of the Act. It is stated on behalf of the assessee that a sum equal to 10 per cent of the amount paid or payable to the assessee under the projects undertaken by it be treated as deemed profits and gains chargeable to tax under the head "Profits and gains of business or profession". The Assessing Officer did not accept the aforesaid contention of the assessee, as according to him, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hose foreign companies who fulfills the conditions laid down under section 44BBB of the Act. In cases of such companies, this provision which is fictional in nature is made which specifies that a sum equal to 10 per cent of the amount paid or payable to the assessee or to any person on his behalf shall be deemed to be the profits and gains of such persons chargeable to tax. 3. The reliance placed by the Assessing Officer on sub-section (2) is clearly misconceived. The provision made in sub-section (2) is for the benefit of the assessee which is clear from the words "the assessee may claim lower profits and gains than the profits and gains specified in sub-section (1)". Thus, even when sub-section (1) provides for a sum equal to 10 per c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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