TMI Blog2017 (12) TMI 1548X X X X Extracts X X X X X X X X Extracts X X X X ..... I.T.A.No. 1067/DEL/2016 - - - Dated:- 8-12-2017 - G. D. AGRAWAL AND MS SUCHITRA KAMBLE For the Appellant: Shri Amit Arora Vishal Mishra, CA For the Respondent: Sh. Gaurav Dudeja, Sr. DR ORDER PER G. D. AGRAWAL, PRESIDENT This is filed by the Revenue against the order dated 18/12/2015 passed by CIT(A)-2, Noida for Assessment Year 2012-13. 2. The grounds of appeal are as under:- i) Whether on the facts and in the circumstances of the case and in law, the CIT (A) has erred in holding that receipts on account of service tax are not includible in gross revenue of the assessee for the purpose of computation of profits under the provisions of section 44BB of the I.T Act, 1961. (ii) Whether the CIT(A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for consideration before this Tribunal in assessee s own case in the assessment year 2011-12, wherein this issue has been decided in favour of the assessee vide order dated 20/09/2017 in ITA No. 6537/DEL/2014. The Ld. AR further submitted that this issue is also covered by the judgment of the Hon'ble Delhi High Court in the case of DIT vs. Mitchell Drilling International Pvt. Ltd. (2016) 380 ITR 130 (Del.). 4. The Ld. D.R. relied upon the order of the Assessing Officer. 5. The assessee is a non-resident company having its P.E in India, through which it is carrying on its business in India. Accordingly it has been showing its income under section 44BB of the Act, as it is not in dispute that the assessee is to be assessed under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment Order. 6. The CIT(A) followed the Tribunal s order in the case of Assessee s own case for A.Y. 2009-10 in ITA No.6475/DEL/2012 as well as Hon ble Delhi High Court s decision in case of DIT vs. Mitchell Drilling International Pvt. Ltd.(supra) and allowed this issue in favour of assessee. 7. We have heard both the parties and perused the records before us along with the ITAT decision in case of Assessee s own case for A.Y. 2011-12 being ITA No. 6537/DEL/2014 order dated 20.09.2017. The Tribunal held as under: 6. We find that now this issue stands covered by the judgment of the Hon'ble Delhi High Court in the case of DIT vs. Mitchell Drilling International Pvt. Ltd.(supra) wherein the Hon'ble High Court, after analyzing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntext that the question arises whether the service tax collected by the Assessee and passed on to the Government from the person to whom it has provided the services can legitimately be considered to form part of the gross receipts for the purposes of computation of the Assessee's 'presumptive income' under Section 44BB of the Act? 12. In Chowringhee Sales Bureau (supra) sales tax in the sum of ₹ 32,986 was collected and kept by the Assessee in a separate 'sales tax collection account'. The question considered by the Supreme Court was: 'Whether on the facts and in the circumstances of the case the sum of ₹ 32,986 had been validly excluded from the assessee's business income for the relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court, both the aforementioned decisions were rendered in the specific contexts in which the questions arose before the Court. In other words the interpretation placed by the Court on the expression trading receipt' or 'turnover' in the said decisions was determined by the context. The later decision of the Supreme Court in CIT v. Lakshmi Machine Works (supra) which sought to interpret the expression 'turnover' was also in another specific context. There the question before the Supreme Court was whether excise duty and sales tax were includible in the 'total turnover' which was the denominator in the formula contained in Section 80 HHC (3) as it stood in the material time? The Supreme Court considered its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llected by the Assessee does not have any element of income and therefore cannot form part of the gross receipts for the purposes of computing the 'presumptive income' of the Assessee under Section 44 BB of the Act. 16. The Court concurs with the decision of the High Court of Uttarakhand in on v. Schlumberger Asia Services Ltd (supra) which held that the reimbursement received by the Assessee of the customs duty paid on equipment imported by it for rendering services would not form part of the gross receipts for the purposes of Section 44 BB of the Act. 17. The Court accordingly holds that for the purposes of computing the 'presumptive income' of the assessee for the purposes of Section 44 BB of the Act, the serv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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