TMI Blog2015 (6) TMI 493X X X X Extracts X X X X X X X X Extracts X X X X ..... low and direct the AO to exclude service tax from the gross receipts for the purpose of determining the income under section 44BB of the Income Tax Act, 1961 - Decided in favor of the assessee. - I.T.A. No. 6475/DEL/2012 - - - Dated:- 5-6-2015 - Shri R.S. Syal and Shri H.S. Sidhu,JJ. For the Petitioner : Sh. Amti Arora, CA For the Respondent: Sh. BRR Kumar, Sr. DR ORDER PER H.S. SIDHU : JM Assessee has filed this Appeal against the impugned order dated 25.10.2012 passed by the Ld. CIT(A)-II, New Delhi relevant to assessment year 2009-10 on the following grounds:- Based on the facts and circumstances of the case, your appellant respectfully submits the following grounds which are without prejudice to each othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iny under CASS. Accordingly, notice under section 143(2) of the I.T. Act was issued on 15.9.2010 by the ADIT International Taxation, Dehradun. Notice under section 142(1) of the I.T. Act alongwith Questionnaire was issued by the AO. In pursuance to the various notices and due opportunities of hearing, the authorize representative of the assessee attended the assessment proceedings from time to time and submitted the replies. After hearing the assessee and perusing the submissions of the assessee, AO was of the view that the address of the company is given in the return of income as 332, Ambaji Sadan, Nanda Patkar Road, Ville Parle (E), Mumbai which has been admitted to be the Permanent Establishment in India by the assessee NRC. During the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1961. Since the activity of assessee is first leg activity that pertains to the contract with consortium / PSCs, receipts from charter hire of Rig of the assessee is taxable in India under section 44 BB of the I.T. Act, 1961. The assessee has also received revenue in the form of reimbursements on account of service tax, as mentioned above, which have not been included by the assessee in its gross receipts. The assessee was accordingly asked to substantiate its claim of the said amounts vide questionnaire / show cause letter dated 26.7.2011 and 20.10.2011 and note sheet queries issued from time to time. Assessee further asked as to why service tax may not be included in the total income and the tax accordingly. In response thereto, ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on a total income of ₹ 10,21,08,763/- for which draft assessment order is being prepared and issued as per the provisions of section 143(3) of the I.T. Act. Thereafter, the AO finalized the assessment at a total income of ₹ 10,21,08,763/- as per the provisions of section 143(3) rws 144C(3)(a) of the I.T. Act vide his order dated 06.1.2012. 3. Against the order of the Ld. AO, assessee appealed before the Ld. CIT(A), who vide impugned order dated 25.10.2012 has dismissed the appeal of the assessee. 4. Aggrieved with the order of the Ld. CIT(A), Assessee is in appeal before us. 5. Shri Amti Arora, Ld. A.R. of the assessee stated that the issue in dispute is similar to the issue involved in the case of Ensco Maritime Limite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foresaid decision in favor of the assessee. We find that the this decision has also been followed earlier by the Tribunal in ITA No. 504/Del/2013 (A.Y. 2009-10) in the case of the same assessee vide which the Tribunal has decided the issue in favor of the assessee vide its order dated 02.8.2013. The relevant paras 3 to 4 are reproduced hereunder:- 3. We have heard both the sides and perused the material placed before us. We find that this issue is covered in favour of the assessee by the decision of ITAT in assessee s own case for AY 2008-09 dated 29th June, 2012 vide ITA No.5284/Del/2011, wherein the ITAT held as under:- The service tax is a statutory liability like custom duty. Hon ble Uttarakhand High Court in their decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respectfully following the above decision of Hon'ble Jurisdictional High Court and also the decision of ITAT in assessee s own case cited supra, direct the Assessing Officer to exclude service tax from the gross receipts for the purpose of determining the income under Section 44BB of the Income-tax Act, 1961. Accordingly, ground Nos.1 2 of the assessee s appeal are allowed. 9.1 From the above, it is evident that the ITAT decided the above issue in favor of the assessee by following the judgment of the Hon ble Jurisdictional High Court in the case of Director of Income Tax (International Taxation) and Another vs. Schlumberger Asia Services Ltd. [2009] 317 ITR 156 (Uttarakhand). No contrary decision of the Hon ble Jurisdictional Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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