TMI Blog2012 (10) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... contended that fee for technical services whether rendered in connection with prospecting for or extraction or production of mineral oil or otherwise will be assessable either u/s 44DA or section 115A of the Act depending on fact whether such receipts are effectively connected with Permanent establishment or Fixed place of Profession. As decided in case of [CGG Veritas Services, SA Versus Additional Director of Income-tax, (International Taxation 2012 (4) TMI 280 - ITAT DELHI] as entire project has to be executed by the assessee and all the terms of contract are similar with the only difference that the other party is a non-resident company. The amount received by the assessee will be assessable u/s 115A of the Act. Held that:- The rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 9(1)(vii) of the Act (herein after referred to as 'fee for technical services') as it falls within the exclusion of the definition of 'fee for technical services', being consideration for any construction, assembly, mining or like project undertaken by the recipient . 3. The Ld. Assessing Officer has erred on facts and in law in levying interest upon the Appellant under section 234B and 234D of the Act disregarding the fact that the Appellant is a non-resident assessee and its entire revenues/receipts are subject to tax withholding in India under section 195 of the Act and the Appellant is not liable to pay advance tax in respect of such revenues. 4. The Ld. Assessing Officer has erred on facts and in law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith sec. 28 of the Act by bringing the sum of ₹ 6,71,54,604/- as deemed profit @ 25% on estimate basis. 3. The assessee objected to the addition proposed by the AO and agitated the matter before the Dispute Resolution Penal-II, Delhi which vide their order dated 29.09.2010 held that the receipts were liable to be assessed @ 10% as fee for technical services. The DRP accordingly directed the AO to pass order accordingly. The AO finally passed order under sec. 143(3)/144(13) vide order dated 22.10.2010. 4. Before us when the matter came up for hearing the learned AR of the assessee submitted that the issue is squarely covered by the decision of ITAT in the case of CGG Veritas Services, SA v. Addl DIT, International ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra ) or the ratio of any other case which will be applicable at that point of time. 5. We have heard both the parties and gone through the material available on record. There is no dispute about the fact that the assessee during the relevant previous year was engaged in the business of providing services or facilities in connection with the prospecting for, or extraction or production of mineral oils in India. The assessee provided services by way of collection of 3D seismic data and processing thereof on board. The ITAT Delhi Bench 'B', Delhi in the case of CGG Veritas Services, SA ( supra ) has observed in Para 46 of order as under:- 46. On combined reading of section 44DA(1) and 115A(1)(b) it is clear that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction of mineral oil though effectively connected with PE or fixed place of profession will fall not under section 44BB(1) and will be assessable under section 44DA of the Act. To make it more clear the fee or technical services can be divided in following categories: ( i ) Fee for technical services rendered in connection with prospecting for or extraction or production of mineral oil having business PE or fixed place of profession - (section 44DA); ( ii ) Fee for technical services rendered in connection with prospecting for or extraction or production of mineral oil without having business PE or fixed place of profession - (section 115A); ( iii ) Other fee for technical services having business PE or fix ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her under sec. 44DA or under sec. 115 depending upon the fact whether such receipts are effectively connected with PE or fixed place of profession or not. However, for the Assessment Year 2004-05 to 2010-11 considerations received as fee for technical services rendered in connection with prospecting for or extraction or production of mineral oil though effectively connected with PE or fixed place of profession will fall outside the scope of 44DA and will be assessable under sec. 44BB(1) of the Act for the simple reason that Proviso to sec. 44BB(1) does not contain sec.44DA for these years. In the instant case as argued by the learned CIT-DR, issue relating to PE or fixed place of business or profession has not been examined by the AO. There ..... X X X X Extracts X X X X X X X X Extracts X X X X
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