TMI Blog2015 (7) TMI 1153X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee and the revenue against directions dated 22.10.2013 of the Dispute Resolution Panel-I (DRP) u/ s 144(5). Orient Overseas Container Line Ltd ITA 7498/M/2013 ITA 524/M/2014 2 2. We will first take-up assessee s appeal, wherein, the assessee has raised the following issues, in its grounds of appeal: i) Ld. AO has erred in law and on facts in including an amount of ₹ 1,79,11,894/ - being service tax collected and paid for the purpose of Presumptive income u/ s 44B. ii) The Ld. AO has erred in law in levying interest u/ s 234B without following DRP s direction. iii) Ld. AO has erred in not following the directions of the DRP regarding levy of interest u/ s 234C. iv) The Ld. AO has erred in granting sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ote of various decisions for and against the assessee and has reached to the following conclusion :- 6. We have considered the rival submissions and also perused the relevant material on record. We have also carefully gone through the various judicial pronouncement relied upon by the Ld. Representatives of both the sides in support of their respective stands on the issue. It is observed that the Assessing Office in his impugned orders and Ld. DR at the time of hearing before us have heavily relied on the decis ion of Hon'ble Uttarakhand High Court in the cases of Halliburton Offshore Services Inc. (supra), Sedco Forex International Inc. (supra) and Trans Ocean Offshore Inc. (supra) in support of the Revenue's that the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the said decision of Delhi Bench of ITAT in the case of Deputy Director of Income Tax vs Technip Offshore Contracting B.V. (supra) was relied upon by the Rely in support of its case on the similar issue Case of Islamic Republic of Iran Shipping Lines (supra) before Mumbai Bench of ITAT and relying on the decision of the Hon'ble Bombay High Court in the case Sudarshan Chemical Industries 242 ITR 769 and that of Hon'ble Uttarakhand High Court in the case of DT Vs. Schlumberger ASIA Service Ltd. (supra) it was held by the Mumbai benches that the service tax, which is a statutory liability, would not involve any element of profits and since the service provider has collected the same from its customers on behalf of the Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of service tax cannot be included in the gross receipts for the purpose of computing the Presumptive income of the assessee u/ s 44B. Accordingly, ground no. 1 raised by the assessee is allowed. 6. With regard to ground no. 2, it has been contended that this issue will become purely academic if ground no. 1 is allowed. Accordingly, ground no. 2 is treated as infructuous. 7. Regarding levy of interest u/ s 234B, as raised in ground no.3, Ld. Counsel submitted that this issue has been decided in favour of the assessee by the Tribunal after following the decision of the Bombay High Court in the case of CIT vs. NGC Network Asia LLC, reported in [2009] 313 ITR 187. 8. On the other hand, Ld. DR relied upon the decision of D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee is not liable for levy of interest u/ s 234B. Accordingly, ground no. 3 is decided in favour of the assessee and against the revenue. 11. Regarding levy of interest u/ s 234C, we find that the Tribunal in the earlier years has held that levy of interest u/ s 234C is consequential and following the same, we also hold accordingly. 12. Regarding ground no. 5, the Ld. Counsel submitted that this issue is not pressed as relief has already been allowed by the Assessing Officer in the order passed u/ s 154. Accordingly, ground no. 5 is dismissed. 13. Ground No. 6 has been admitted by Ld. Counsel that it is premature and accordingly, the same is dismissed. 14. In the result, assessee s appeal is partly allowed. 15. In the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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