TMI Blog2015 (4) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 44BB provides that it is open to the assessee to claim lower profits and gains, if he keeps and maintains such books of account and other documents as required under sub-section (2) of Section 44AA and gets the accounts audited and furnish a report. There is no case for the appellant that the appellant is invoking the aid of sub-section (3) of Section 44BB. In view of the admitted position that the appellant does not claim the benefit of sub-section (3) of Section 44BB, we do not see how the appellant can be heard to argue that the amount which he has received by way of mobilization advance outside India should not be included for the purpose of calculating the income under section 44BB in the teeth of the clear provision containe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal. After the matter received the attention at the hands of the Income Tax Appellate Tribunal and the contention of the appellant not being accepted, appellant is before us. 2. We have heard learned counsel for the appellant and also learned counsel for the Department. 3. The questions of law, which have been raised, are as follows:- a. Whether on facts and in the circumstances of the case, the Honble Tribunal erred in law in not appreciating the true construction of Section 44BB of the Act ? b. Whether on the facts and circumstances of the case and in law, the Tribunal erred in law in holding that the mobilization/demobilization fee amounting to ₹ 28,21,23,166/- received by the appellant on account of services provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the territory of India or rather outside India. In regard to the mobilization advance which was received within the territory of India, there can be no objection and the appellant offered it also. But the objection is taken to the said amount being the subject matter of levy under Section 44BB for the reason that if that was permitted that would be in the teeth of the provision contained under sub-section (2) of Section 5 of the Act. Sub-section (2) of Section 5, no doubt, relates to a charge of Income-Tax in respect of the income of the non-residents. It certainly proclaims that the tax is to be levied with reference to either receipt or accrual with reference to the territory of India. In other words, unless there is a receipt or accrual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... traction or production of, mineral oils in India; and (b) the amount received or deemed to be received in India by or on behalf of the assessee on account of the provision of services and facilities in connection with, or supply of plant and machinery on hire used or to be used in the prospecting for, or extraction or production of mineral oils outside India. (3) Notwithstanding anything contained in subsection (1), an assessee may claim lower profits and gains than the profits and gains specified in that sub-section, if he keeps and maintains such books of account and other documents as required under sub-section (2) of section 44AA and gets his accounts audited and furnishes a report of such audit as required under section 44AB, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision which may be availed of by the non-resident or he may choose to be governed by the provisions contained in Sections 4 5 read with Sections 28 to 42. Section 28 deals with the computation of income under the head of income profits and gains. This is a special mechanism to obviate the procedure of regular assessment which would have to be made if the assessee did not invoke the aid of Section 44BB. This is clear from the provision of sub-section (3) of Section 44BB, as sub-section (3) of Section 44BB provides that it is open to the assessee to claim lower profits and gains, if he keeps and maintains such books of account and other documents as required under sub-section (2) of Section 44AA and gets the accounts audited and furnish a r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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