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2015 (12) TMI 367 - ITAT DELHI

2015 (12) TMI 367 - ITAT DELHI - TMI - Computation of income as FTS (Fees for Technical Services) - Assessment of income - whether the income of the assessee is taxable u/s 44BB of the Act, or is u/s 44DA as held by the AO - Held that:- For the relevant assessment year i.e. AY 2010-11 the assessee is entitled to declare its income under the provision of section 44BB of the Act.

The next question whether the Amendment in section 44BB and 44DA should be read as retrospective is also no .....

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d apply in relation to the asst. yr. 2011-12 and subsequent years. The amendment is prospective in nature and would not apply to the cases in hand which is of the earlier assessment years. Thus the question of retrospectivty cannot be accepted and is being repelled and so this ground of Revenue fails. - ITA No. 5928/Del./2013, CO No.194/Del/2014 - Dated:- 24-11-2015 - Shri A. T. Varkey, Judicial Member And Shri Prashant Maharishi, Accountant Member For the Petitioner : Shri Amit Arora & Sur .....

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10 under section 143(3) / 144C (1) of the Income Tax Act, 1961 (hereinafter the Act ) was passed on 11.03.2012 on a total income of ₹ 57,24,29,240/-. The said draft assessment order was as under :- "Return of income was filed by the assessee on 30.09.2011 declaring total income of ₹ 22,96,37,533/-. The case was processed under section 143(1). The case was selected under scrutiny by CASS. Accordingly notice under section 143(2) was issued on 06.08.2012 and served upon the assesse .....

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ssee were carefully perused and the case was heard. 2.1 During the year under consideration, the assessee had entered into two contracts with Oil and Natural Gas Corporation Ltd. for the acquisition and processing of seismic data in respect of which the work was executed during the relevant assessment year. The AO has gone through the contracts entered into by the assessee and has reproduced the scope and object of the work to be performed in respect of the contracts in his order, which are repr .....

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ppendix AI of the contract. They are summarized as under :- "AI.1. SEISMIC DATA PROCESSING The primary objective of the Processing of 3D seismic data, to be acquired in the survey areas of Western and Eastern offshore, is to obtain accurate high resolution imaging (free from geophysical significant errors) with geological objective in Appendix A.). AI.2 GENERAL REQUIREMENTS All necessary testing to determine optimum processing parameters consistent with good International Geophysical Indust .....

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in professional and efficient manner should deliver an output of high quality seismic data required for interpretation. The contractor is solely responsible for the quality for all aspects of the data processed. Contract No. PETROGAS/MBOSN/3D Acquisition /08-09 with Petrogas E&P LLC dated September 29, 2008 for Marine 3D Seismic and Gravity Magnetic Data Acquisition Services. The scope of work and technical specification of offshore 3Dseismic data processing (Appendix A) is provided in Secti .....

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of the survey(s) are: • To maximize visibility of the offshore horizons from 5000-2500 msecs • To maximize image quality of the faults and inter compart mentalization within the main horizon. • To retain the maximum bandwidth of the recorded data. • To deliver good quality, high fold data with few coverage gaps. 2.1.1 Contractor is to provide the seismic vessel, all support vessels e.g. minimum two Chase Boats/Guard Vessels and the crews including all necessary personnel, equ .....

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ed under both the above contracts clearly showed that assessee had carried out Geophysical Seismic Survey along with data interpretation of the data so collected along with Vessels and the crews including all necessary personnel, equipment and supplies necessary for execution of the scope of work mentioned above. Accordingly, the AO required the assessee to explain why the income of the assessee as "Fee for technical services" (FTS in short) since it had provided services of 3D Seismic .....

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d under the provisions of these two sections. He observed that Section 28 to 41 is computation sections and section 44BB is a presumptive section. The AO observed that it is important to analyze that when a presumptive section is introduced, it will start with a non-obstante clause with respect to Sections 28 to 41 which are the computation sections. The AO, after observing the aforesaid sections and considering the submissions of the assessee, held that, In the light of discussion above, it is .....

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44BB came into force. Thus, even though clarificatory amendments are made effective from 1st April 2011, in view of legislative intent, even prior to the said clarificatory amendments as mentioned above, the income in the nature of FTS or Royalties cannot be taxed under presumptive scheme of taxation under section 44BB(l) of Income Tax Act, 1961. The receipts of the assessee are covered under provisions of Section 44DA of I.T. Act and therefore income is to be computed as per the provisions of s .....

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h presence of its vessels in India and therefore has a PE in India. The assessee has in its written submission also accepted that it has a PE in India. The AO further observed that the assessee had not filed its objections against the said draft order before the Dispute Resolution Panel. Accordingly, the AO completed the assessment under section 143(3) read with section 144C(3)(b) of the Act at total income of ₹ 57,24,29,240/-. 3. The assessee filed an appeal before the first appellate aut .....

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on 44DA of the Act following the case of B.J. Services reported in 339 ITR 169 (UK). Furthermore, following the case of CGG Veritas (Supra) the Appellant deserves to have his income computed u/s 44BB considering that there is a PE in existence in India. Due to these factors the income is to be assessed u/s 44BB of the Act. 4. The revenue, being aggrieved, has filed the appeal before the Tribunal by taking the following grounds of appeal :- 1. Whether on the facts and in the circumstances of the .....

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lding that the income of the assessee was taxable under the presumptive provisions of sec 44BB and ignoring the fact that taxability u/s 44BB shall not apply in respect of income referred to in section 44DA in view of the clarificatory proviso to sec. 44BB and sec 44DA of the Act. 3. Whether on the facts and in the circumstances of the case, the Ld CIT(A) has erred in holding that the income of the assessee was not taxable under the provisions of sec 44DA r.w.s 115A even though the nature of ser .....

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the Ld CIT(A) has erred in ignoring the distinct scheme of taxation of FTS and disregarding the insertion of provisos in section(s) 44BB/44DA/115A and the rationale behind the introduction of said clarificatory provisos in the Finance Bill 2010. 6. Whether on the facts and in the circumstances of the case, the CIT(A) has erred in relying on the decision of the ITAT in the case of M/s CGG Veritas Services, SA in ITA No.4653/Del/2010 (on the issue that once a PE is established to be in place then .....

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Drilling v/s CIT. 8. Whether on the facts and circumstances of the case, CIT(A) has erred in reversing the action of the AO who, having held that the assessee's revenues on account of services rendered under the Contracts are liable to be taxed u/s 44DA, rightly estimated the income of the assessee by applying 25% rate of profit on gross receipts in the absence of books of accounts and details of expenses incurred in providing the services. 9. The appellant prays for leave to add, amend, mod .....

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of taxability u/s 44BB of the Act. The AO is seen to have given a finding that the scope of work (copies of contract have been filed during appellate proceedings) executed by the assessee was not in the nature of building construction, mining or like project and thus was includible in the definition of FTS as per section 9(1)(vii) of the Act and it has also been held that the provision of 44DA apply and on this basis, the income has been determined after applying an estimated profit rate of 25% .....

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of Explanatory notes is annexed at Annexure 'A' which clearly bring out that the amendment was clarificatory) was clarificatory in nature and its application has to be read into the main provisions with effect from the time the main provision came in to effect. 3. In following decisions the Courts have held that despite a prospective date mentioned in the Finance Act, the amendment may have retrospective operation. While holding so, the Courts have held that sometimes legislature specifi .....

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dco Forex International Drilling vs. CIT [2005] 279 ITR 310 (SC) observed: "An Explanation to a statutory provision may fulfil the purpose of clearing up an ambiguity in the main provision or an Explanation can add to and widen the scope of the main section. If it is in its nature clarificatory then the Explanation must be read into the main provision with effect from the time that the main provision came into force. But if it changes the law it is not presumed to be retrospective irrespect .....

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following: a. Sections 44BB, 44DA and 115A read together provide that income of a non-resident, in the nature of fee for technical services, shall be taxable under the provisions of either section 44DA or section 115A irrespective of the business to which it relates. b. Judicial pronouncements having raised doubts regarding the scope of section 44BB vis-a-vis section 44DA as to whether FTS relating to exploration and, therefore, to remove doubts and clarify the distinct scheme of taxation of inc .....

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assembly, 'mining or like project' undertaken by the recipient 7. In CGG Veritas Services SA [2012] 18 taxmann.com 13 (Delhi), the Hon'ble ITAT held that exception to definition of FTS as contained in Explanation 2 to section 9(1 )(vii) has two limbs: a. First, it should be construction, assembly, 'mining or like project' and b. Second, this project should be undertaken by the assessee (relying upon Delhi High Court Decision in Rio Tinto Technical Services [2012] 17 taxmann.c .....

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20 ITR 268/186 Taxman 213 (AAR - New Delhi), relied upon by Delhi High Court in DIT v. OHM Ltd. ([2012] 28 taxmann.com 120/[2013] 212 Taxman 440 (Delhi)), did not adjudicate the aspect of eligibility in terms of second limb of the exclusionary proviso i.e. "for a project undertaken by the recipient" as confirmed in CGG Veritas (supra). Also decision of DIT V Jindal Drilling and Industries Ltd. (2010) 320 ITR 104, pertained to AYs 2000-01, 2001-02 and did not contain any reference to se .....

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ot;fees for technical services" under section 44D read with Explanation 2 to section 9(1)(vii) of the Income Tax Act or will such payments be taxable on a presumptive basis under section 44 BB of the Act ?" 11. The Hon'ble Supreme Court has held at para 13 that: "The Income Tax Act does not define the expressions "mines" or "minerals". The said expressions are found defined and explained in the Mines Act, 1952 and the Oil Fields (Development and Regulation) .....

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natural gas and petroleum in respect of which Parliament has exclusive jurisdiction under Entry 53 of List I of the 7th Schedule and had enacted an earlier legislation i.e. Oil Fields (Regulation and Development) Act, 1948. Reading Section 2(j) and 2(jj) of the Mines Act, 1952 which define mines and minerals and the provisions of the Oil Fields (Regulation and Development) Act, 1948 specifically relating to prospecting and exploration of mineral oils, exhaustively referred to earlier, it is abun .....

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sessed under Section 44BB or Section 44D of the Act. The test of pith and substance of the agreement commends to us as reasonable for acceptance. Equally important is the fact that the CBDT had accepted the said test and had in fact issued a circular as far back as 22.10.1990 to the effect that mining operations and the expressions "mining projects" or "like projects" occurring in Explanation 2 to Section 9(1) of the Act would cover rendering of service like imparting of trai .....

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in mind the above provision, we have looked into each of the contracts involved in the present group of cases and find that the brief description of the works covered under each of the said contracts as culled out by the appellants and placed before the Court is correct. The said details are set out below ....... "The above facts would indicate that the pith and substance of each of the contracts / agreements is inextricably connected with prospecting, extraction or production of mineral oi .....

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show that the Hon'ble Supreme Court has held that drilling operations for the purpose of production of petroleum would amount to a mining activity or a mining operation and that the proximity of the works contemplated under an agreement, with mining activity or mining operations would be crucial for the determination of the question whether the payments made under such an agreement is to be assessed under Section 44BB or Section 440 of the Act. The test of pith and substance of the agreement .....

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ining or like project, was not brought to the notice of the Hon'ble Court. The amendments brought about by Finance Act 2003 and 2010 and the explanatory notes thereunder were also not before Supreme Court since the case pertained to AY 1985-86/1986-87. It is very humbly submitted that the decision differs on fact and in law from the case on hand since the Hon'ble Supreme Court did not have the opportunity to address the following aspects: (i) Examine second limb of the exception to defin .....

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ve approached the AD or would have insisted on the payer to deduct no TDS. [2010] 194 TAXMAN 495 (DELHI) Director of Income-tax v. Jacabs Civil Incorporated/ Mitsubishi Corporation: "It is stated at the cost of repetition that the liability to deduct or collect the tax at source is that of the payer. Therefore, for the purposes of section 234B of the Act, the question would be as to whether the payee, i.e., the assessee in this case, had any role in deducting or collecting the tax. Once tha .....

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ase, the provisions of section 234 B of the Act would not be attracted at all." [Para 6] The ld. DR, on the basis of assessment order and the above submissions, prayed that the order of the ld. CIT (A) be reversed and that of the AO be restored. 7. On the other hand, the ld. AR reiterated the submissions made in the order of the ld. CIT (A) and also relied on the order of the ld. CIT (A). He also submitted a written submission and the same are reproduced hereunder :- Brief facts of the case .....

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rejected and its income has been taxed as fees from technical services. Aggrieved by the variation in its income, the assessee has filed before the Ld. CIT(A) wherein the Ld. CIT(A) has held that the benefit of provision 44BB shall be available to the assessee. Hence the revenue is in present appeal. In this regard our submissions are as under: At the outset is submitted that the issue under consideration is squarely covered by decision of Hon'ble jurisdictional ITAT in Assessee's own ca .....

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Income Tax-II Vs. OHM Ltd. (Supra) was followed by the Hon'ble jurisdictional High Court in the case of PGS Geophysical AS (Supra). In the light of the above judgments of Hon'ble jurisdictional High Court, we hold that for the relevant assessment year, assessee is entitled to declare its income under the provision of Section 44BB of the Act. It is ordered accordingly. It is further submitted that the above order of Hon'ble ITAT was affirmed by the Hon'ble Uttarakhand High Court .....

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t the appellant / revenue. Accordingly, we answer the said questions of law against the revenue in the light of the aforesaid judgment of the Hon'ble Apex Court. 5 ….. 6. In such circumstances, the appeals are disposed of as follows: (i) We answer the questions of law relating to the assessability of the amounts under Section 44BB against the Revenue. It is submitted that while disposing the appeal of the appeal of the revenue in High Court, the Hon'ble Court has relied upon the d .....

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Regulation) Act 1957 regard must be had to the provisions of Entries 53 and 54 of List I and Entry 22 of List /I of the 7th Schedule to the Constitution to understand the exclusion of mineral oils from the definition of minerals in Section 3(a) of the 1957 Act. Regard must also be had to the fact that mineral oils is separately defined in Section 3(b) of the 1957 Act to include natural gas and petroleum in respect of which Parliament has exclusive jurisdiction under Entry 53 of List I of the 7t .....

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vity or a mining operation. Viewed thus, it is the proximity of the works contemplated under an agreement, executed with a non-resident assessee or a foreign company, with mining activity or mining operations that would be crucial for the determination of the question whether the payments made under such an agreement to the non-resident assessee or the foreign company is to be assessed under Section 44BB or Section 44D of the Act. The test of pith and substance of the agreement commends to us as .....

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made under such agreement to a non-resident/ foreign company would be chargeable to tax under the provisions of Section 44BB and not Section 44D of the Act. We do not see how any other view can be taken if the works or services mentioned under a particular agreement is directly associated or inextricably connected with prospecting, extraction or production of mineral oil. Keeping in mind the above provision, we have looked into each of the contracts involved in the present group of cases and fin .....

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or production of mineral oil. The dominant purpose of each of such agreement is for prospecting, extraction or production of mineral oils though there may be certain ancillary works contemplated thereunder. If that be so, we will have no hesitation in holding that the payments made by ONGC and received by the non-resident assessees or foreign companies under the said contracts is more appropriately assessable under the provisions of Section 44BB and not Section 44D of the Act. On the basis of th .....

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not applicable on second leg contracts 3. Decision of Hon'ble Delhi High Court in case of PGS Geophysical AS Our submissions in respect of Argument no. 1 i.e. Amendment in section 44BB and 44DA should be read as retrospective It is submitted that the Hon'ble Uttarakhand High Court in case of BJ Services Company Middle East Limited Vs. DCIT 3391TR 169 date of pronouncement 20-08-2011 has held that the amendments proposed by Finance Bill, 2010, in ss. 44BB and 44DA were only prospective i .....

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uld not apply to the cases in hand which is of the earlier assessment years. It is submitted that the revenue has filed an special petition before the Hon'ble Uttarakhand High Court against the above case and same has been dismissed by the Hon'ble High Court vide order dated May 28th 2013 reported at 216 Taxman 190. Relevant observations of the court are as under: "whereas section 44BB deals with a non-resident assessee providing, amongst others, services or facilities in connection .....

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xtraction or production of, mineral oils and other kind of non-resident assessees, who get fees for providing services or facilities. The Assessing Officer felt that, by reason of insertion of the said proviso, he can look into those completed assessments for the accounting years, which stood closed prior to 1st April, 2011 and, accordingly, exercised power under Section 148 of the Income Tax Act. By the judgment under appeal, the learned Judge has pointed out that there was no just reason for d .....

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ion 44DA inserted by the Finance Act, 2010 w.e.f 01.04.2011 makes the position clear. Simultaneously a reference to Section 44DA was inserted in the proviso to sub-section (1) of section 44B8. It should be remembered that section 44DA also requires that the non-resident or the foreign company should carry on business in India through a permanent establishment situated therein and the right, property or contract in respect of which the royalty or fees for technical services is paid should be effe .....

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d for expenditure towards reimbursement of actual expense by the permanent establishment to its head office or to any of its other offices is allowed from the revenues received by the non-resident. Because of the different modes or methods prescribed in the two sections for computing the profits, it apparently became necessary to clarify the position by making necessary amendments. That perhaps is the reason for inserting the second proviso to sub-section (1) of Section 44DA and a reference to s .....

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arify the position. So understood, the proviso to sub-section (1) of Section 44BB can only mean that the flat rate of 10 percent of the revenues cannot be deemed to be the profits of the nonresident where the services are of the type which do not fall under that section, but are more general in nature so as to fall under Section 44DA. Similarly, the second proviso to sub-section (1) of Section 44DA can only be interpreted to mean that where the services are general in nature and fall under the s .....

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spheres of operation or to take away the separate identity of Section 44BB. We do not, therefore, see how these amendments can assist the Revenue's contention in the present case, put forward by the learned Senior Standing Counsel. We, therefore, agree with the AAR that in the present case the profits shall be computed in accordance with the provisions of section 44BB of the Act and not section 44DA. The above proposition has been followed in the case of Baker Hughes Asia Pacific Limited vs .....

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he aggregate of the amounts specified in subsection (2) is deemed to be the profits and gains of such business chargeable to tax under the head "Profits and Gains of business or profession". 65. The department's contention is that section 44DA inserted by the Finance Act, 2010 w.e.f. 1-4-2011 in section 44BB is retrospective and, therefore, royalty and fees for technical service should be taxed u/s 44DA and not u/s 44BB. In our opinion, the amendment cannot be held to be retrospect .....

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on that the issue is squarely covered by the decision of Hon'ble Jurisdictional High Court, decision of Hon'ble Delhi High Court in the case of OHM (supra) and by the decision of the ITAT in CGG Veritas (supra) and Phonex (supra). Our submissions in respect of Argument no. 2 i.e. Benefit of section 44BB is not applicable on second leg contracts It is submitted that the Hon'ble Delhi Tribunal in case of SBS Marine Limited vs. ADIT ITA No. 107/DEL/2012 date of pronouncement 13-02-2015h .....

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wances allowable in computing the profits or gains of any business consisting of the prospecting for or extraction or production of mineral oils in relation which the Central Govt. has entered into an agreement. Section 80IA(4)(i)(b) provides that the enterprise carrying on the business of developing, operating and maintaining any infrastructure facility has to enter into an agreement with the Central Government of a State Govt. or a local authority etc. In the absence of any requirement in sect .....

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tion or production of, mineral oils as required under section 44BB.The Hon'ble Supreme Court in ICDS Ltd v CIT [2013) 350 ITR 527 = 2013-TIOL-06- SC-IT held that the assessee leasing the vehicles to others who use the said vehicles in their business of running them on hire is entitled for higher rate of depreciation on the vehicles given on lease. It was held by the Hon'ble Supreme Court that the lessor need not himself use the vehicles in the business of running them on hire. The ration .....

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he assessee along with plant and machinery are used in offshore drilling operations i.e., the activity of prospecting for or extraction or production of mineral oils. Consequently, the requirements of section 44BB are satisfied in the present case. 24. In view of the above, there is no merit in the contentions of the revenue that the assessee is not an eligible assessee under section 4488 since it has not directly entered into contract with the ONGC and it is not undertaking the activities speci .....

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mers are in the nature of a contract for hire of equipment. In Gosalia's case, the Hon'ble Supreme Court had to consider whether a hire charge paid under time charter was a payment on account of carriage of goods. In this context, the Hon'ble Supreme Court held at page-311 that in order that it may be said that amount was payable on account of the carriage of goods, it would be necessary to show that one is the consideration for other, that is to say, that the payment which the chart .....

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dia. 30. In the present case, the issue as to whether the payment made by the assessee's customers was on account of carriage of goods does not arise. The issue, that arises, is whether the assessee is rendering a service, providing a facility or giving a plant on hire. In fact, the Supreme Court observes at page-311 that one must have regard to the substance of the matter and, if necessary, tear the veil in order to see whether the true character of a payment is something other than what, b .....

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Corporation Ltd. vs. ITO, 360 ITR 257 =2013- TI/-37-HCMAD- INTL is not applicable since the said decision does not deal with the applicability or otherwise of section 44BB.The revenue's reliance on section 9(l)(vi) to categorize the assessee's income for hire of vessels as 'royalty' is also not correct since clause (iva) of section 9(l)(vi) excludes amounts referred to in section 44BB. The other arguments, decisions relied on by the learned DR including the one on 'Base erosi .....

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ry threshold vide order dated 06-08-2015 in ITA No. 36/2015. Similar view has been held in case of LOUIS DREYFUS ARMATEURES SAS in ITA No. 5814/DEL/2010 date of pronouncement 17.02.2015wherein it has been held that the provision of section 44BB does not distinguishes between the main contractor and a sub-contractor. Relevant extract of the pronouncement is as under: 60. A reading of the aforesaid judicial precedence clarify that sec. 44BB does not distinguish between the main contractor or a sub .....

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s clear so also the legislative intention. It is a trite law that has already held by the Hon'ble Supreme Court in B. Parmannand vs. Mohan Koikal 2011 (4) see 266 that "the language employed in a statute is the determinative factor of the legislative intend. It is well settled principle of law that the Court cannot read anything into a statutory provision which is plan and unambiguous". If the legislatures intention as contended by the Revenue was to restrict the benefit of see. 44 .....

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mitted. The basic condition to be satisfied in the said provision is that the plant or machinery supplied or lented on hire by the assessee, non-resident should be used in the prospecting for or extraction or production of minerals oils or where equipment has been supplied, such equipment should have been used for the purposes of prospecting for or extraction or production of mineral oils. Having regard to the above we are of the considered opinion that the fetter assumed by authorities below wh .....

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mitted that the Hon'ble Delhi ITAT in case of AOIT vs. Baker Hughes Singapore Pte. Ltd ITA No.744/0EL/2013 date of pronouncement 20-04- 2015has held as under: 7. Learned Commissioner (DR) has, even while accepting that the same issue came up for consideration before coordinate benches in the cases of Baker Hughes Asia Pacific & ors Vs AOIT [34 ITR (Trib) 192J = 2014-TII-l04-ITAT-DEL-INTL and Baker Hughes Asia Pacific Limited Vs AOIT (ITA No. 6476/0el/12; order dated 5th September 2014) = .....

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technical services, and that the income being in nature of royalty/ FTS, and not for a project undertaken by the appellant, is not eligible for benefit of Section 4488 as it would be contrary to the decisions of Hon'ble jurisdictional High Court in the cases of Foramer France and Rolls Royce. It is contended that the provisions of Section 4400A, as in force with effect from 1st April 2011, are clarificatory in nature and have to be read into the provisions of the Act. Its her contention tha .....

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, though stated to be effective from assessment year 2011-12 must be treated as c1arificatory in nature. A reference is made to the decision of Hon'ble Supreme Court, in the case of Union of India Vs Gosalia Shipping Pvt Ltd (113 ITR 307) = 2002-TII-40-SC-LB-INTLfor the proposition that when payment is made to a shipping company for time charter, its payment for hire of shipment and not for the purpose of carrying goods, and by the same logic, when payment is made by the first leg contractor .....

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that the decision of the coordinate bench in the case of Baker Hughes Asia Pacific Ltd (supra), by which this issue in appeal is stated to be covered in favour of the assessee, did not take account the binding judicial precedents in the cases of PGS Geophysical (supra) and Gosalia Shipping (supra) as also many other relevant decisions, we should not be guided by the same. 8. Learned counsel for the assessee, on the other hand, submits that as the issue is squarely covered in favour of the asses .....

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erudite arguments, are of not of any practical effect at this stage. As for the BEPS considerations, as so strenuously argued by the learned counsel, base erosion and profit shifting is a tax policy consideration which is relevant for the process of law making, but it cannot have a role in the judicial decision making process because judicial process will infringe neutrality if it is to be swayed by such policy consideration. The judicial neutrality must not only be neutral vis -avis the party .....

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ideration of a binding precedent ... A decision does not lose its authority merely because it was badly argued, inadequately considered or fallaciously reasoned .... ". Similarly, in the case of Kesho Ram & Co. vs. Union of India (1989) 3 see 151, Hon'ble Supreme Court had observed that "(t}he binding effect of a decision of this Court does not depend upon whether a particular argument was considered or not, provided the point with the reference to which the argument is advance .....

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ed that the decision of Hon'ble High Court in case of PGS geophysical AS 369 ITR 27 has recently been recalled by the Hon'ble Court vide order dated 01-05-2015.Relevant observations of the court are as under: "Learned Senior Counsel points out the relevant parts of the Assessing Officer's (AO) order, submissions made before the Income Tax Appellate Tribunal (ITAT), as well as the grounds of appeal to show that the consistent case of the appellant was that the services in questio .....

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17.07.2015 for further hearing on the substantial questions of law as formulated on 08.01.2013." Thus, the Ld. AR prayed that the order of the ld. CIT (A) may be upheld. 8. We have heard both the sides and perused the material on record. The question whether the assessee is entitled to declare its income under the provision of section 44BB of the Act, has already been answered in the favour of the assessee vide order dated 21st November 2014 in ITA No.5823/Del/2011 in assessee s own case fo .....

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other), the substantial questions of law relating to the assess ability of the amounts under Section 448B have to be answered against the appellant / revenue. Accordingly, we answer the said questions of law against the revenue in the light of the aforesaid judgment of the Hon'ble Apex Court. 5 ….. 6. In such circumstances, the appeals are disposed of as follows: (i) We answer the questions of law relating to the assessability of the amounts under Section 44BB against the Revenue. 9. .....

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East Ltd vs DCIT 339ITR169by order dated 20.08.2011, the Hon ble Uttarakhand High Court, the jurisdiction High Court has held as under: 55. As stated earlier, the combined effect of the provisions of s. 44BB, 44DA and 115A of the Act will not have a bearing to the cases in hand in as much as the Explanatory Note to the Finance Bill, 2010 clearly indicates that the amendments proposed in s. 44BB and 44DA of the Act would take effect from 1st April, 2011 and would apply in relation to the asst. yr .....

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