TMI Blog2015 (3) TMI 1250X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010 for assessment year 2006-07. Grounds of appeal read as under: Grounds of Assessee s Appeal: 1. The learned CIT(A) has erred in confirming the taxability of Mobilisation/Demobilisation charges received by the appellant from Engineers India Ltd. which were pertaining to activities carried out outside India and hence not chargeable to Tax as per the Income Tax Act,1961. 2. The learned CIT(A) has erred in taxing the revenues earned from Arcadia Shipping Limited for Charter Hire of Tug Boat Valentine III U/S 44 BB of Income Tax Act,1961 instead of Business Income under Article 7 of DTAA between India U.A.E. Even though CIT (A) held that Valentine Maritime (Gulf) LLC is entitled to tax benefits and since the assessee did not have PE in India the same is not taxable. 3. The learned CIT(A) erred in taxing reimbursement of survey charges of ₹ 1,47,35,736 received by the appellant from Arcadia Shipping Limited which were not earned within the territorial waters of India and hence not chargeable under the Act. Grounds of Revenue s Appeal: 1. On the facts and in the circumstances of the case and in law, the Id. CIT (A) has erred in directing the dele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be admitted are as follows: The view that the Tribunal is confined only to issues arising out of the appeal before the Commissioner of Income-tax (Appeals) takes too narrow a view of the powers of the Appellate Tribunal (vide, e.g., CIT v. Anand Prasad [1981] 128 ITR 588 (Delhi),CIT v. Karamchand Premchand P. Ltd. [1969] 74 ITR 254.(Guj) and CIT v. Cellulose Products of India Ltd. (1985] 151 ITR 499 (Guj) [FB)). Undoubtedly, the Tribunal will have the discretion to allow or not allow a new ground to be raised. But where the Tribunal is only required to consider a question of law arising from the facts which are on record in the assessment proceedings we fail to Re why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess the tax liability of an assessee. 3.3 As it can be seen from the above observations, it is in the entire discretion of the Tribunal to allow or not to allow new ground but in a case when Tribunal is required to consider a question of law arising from the facts, then the facts should be on record. Thus, finding no force in the arguments submitted by Ld. AR regarding admission of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an occasion to deal with the said AAR ruling; The Respondent placed great reliance On the decision by the Authority for Advance Rulings constituted under s. 243-O of the IT Act, 1961, in Cyril Eugene Pereira s case (1999) 154 CTR (AAR) 281; (1999) 239 ITR 650 (AAR) Sec. 24SS of the Act provides that the Advance Ruling pronounced by the Authority under s. 245R shall be binding only. a) on the applicant who had sought it; b) in respect of the transaction in relation to which the ruling had been sought and c) on the CIT, and the IT authorities subordinate to him, in respect to the applicant and the said transaction. It is, therefore, obvious that; apart from whatever its persuasive value, it would be of no help to us. Hailing perused the order of the Advance Ruling Authority, we are not persuaded. Being the facts and circumstances are identical to that of the above case, respectfully following the Tribunal orders, we are of the considered opinion that the learned CIT(A) erred by confirming the order of the assessing officer when the assessee has submitted the copy of the certificate from the Min. of Finance and Industry of UAE to the effect that the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act. It is not in dispute that by sub-contract agreement between Engineers India Ltd and the assessee, the assessee was given a turnkey project for laying and installation of pipe lines. It is a settled proposition of law that when a contract consists of a number of terms and conditions each condition does not form separate contract. The contract has to be read as a whole as laid down by the Hon'ble Supreme Court in the case of Chaturbuj vallabhdas AIR 19S4(SC) 236. 9.1. A careful perusal of the various clauses of the contract in the light of the provisions of Sec. 44BB which reads as under: 44BB. (1) Notwithstanding anything to the contrary contained in sections 28 to 41 and sections 43 and 43A, in the case of an assessee 83 [, being a non-resident.] engaged in the business of providing services or facilities in connection with, or supplying plant and machinery on hire used, or to be used, in the prospecting for, or extraction or production of, mineral oils, a sum equal to ten per cent of the aggregate of the amounts specified in sub-section (2) shall be deemed to be the profits and gains of such business chargeable to tax under the head Profits and gains of bus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee shows that the work/services done by the assessee do not come within the purview of Sec. 9(1)(vii) of the Act. Respectfully following the decisions of the Tribunal, we do not find any reason to interfere with the findings of the Ld. CII(A). Order of the Ld. CIICA) is confirmed. Ground No. 1 2 are accordingly dismissed. 6.1 In this view of the situation, after hearing both the parties, respectfully following the aforementioned decision of Co-ordinate Bench in the case of assessee itself we decline to interfere in the relief granted by Ld. CIT(A) and this ground of the Revenue is also dismissed. 6.2 In the result, Revenue s appeal is dismissed. Assessee s Appeal in ITA No.8693/Mum/2010: 7. Apropos Ground No.1 of the assessee s appeal, it was clearly conceded by Ld. AR that Grund No.1 is to be decided against the assessee in view of the decision of Hon ble Uttrakhand High Court in the case of Sedco Forex International Inc. v. CIT [2008] 299 ITR 238 (Uttarakhand), wherein it has been held that mobilization fee , if paid to non-resident assessee by the ONGC which had no nexus with the actual amount incurred by the assessee company for transportation o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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