TMI Blog2019 (2) TMI 1513X X X X Extracts X X X X X X X X Extracts X X X X ..... e’s case comes within the purview of section 44BB of the Act. Levy of interest u/s 234B - HELD THAT:- The insertion of the proviso cannot be considered to have retrospective effect so as to expose a non-resident company to levy of interest u/s 234B of the Act for the assessment years prior to assessment year 2013-14. In the light of the above, we direct the Assessing Officer to not charge interest u/s 234B. See Technip UK [2018 (12) TMI 1069 - ITAT DELHI] - ITA No. 1669/DEL/2015 - - - Dated:- 25-2-2019 - Shri N. K. Billaiya, Accountant Member, And Ms. Suchitra Kamble, Judicial Member For the Appellant : Shri Vishal Kalra, Adv, Shri Ankit Sahni, Adv And Shri S.S. Tomar, Adv For the Respondent : Shri G.K. Dhall, CIT-DR ORDER PER N. K. BILLAIYA, ACCOUNTANT MEMBER: This appeal by the assessee is preferred against the order dated 29.01.2015 framed u/s 143(3) r.w.s 144C(13) of the Income-tax Act, 1961 [hereinafter referred to as 'the Act' for short] pertaining to A.Y 2012-13. 2. The substantive grievance of the assessee is two-fold firstly, the assessee is aggrieved by the findings of the Assessing Officer that the provisions of section 44BB o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rector of Income Tax (Int Tax)(ITAT, Delhi), ITA 4653 of 2010 (Del ITAT) dt.25.01.2012, has a binding precedent on various matters relating to taxability of FTS in general. However, it is not a binding precedent as regards the taxability of an assessee having a PE, since it was rendered specifically for an assessee which does not have a PE. Any reference to taxability of an assessee having PE is only obiter. The legislative history of the Sections 9, 115A, 44D, 44BB and 44DA shows that FTS, whether or not PE's present, and regardless of the fact the assessee is rendering services in connection with prospecting/exploration/extraction of mineral oil, are not taxable in u/s 44BB. This is specifically supported by the decisions of Hon'ble Uttaranchal High Court in CIT v. ONGC as Representative Assessee of Rolls Royce (P.) ltd.[200S] 170 TAXMAN 563/214 CTR 135 and the case reported in 299 ITR 436. Under the scheme of the Income Tax Act, FTS can be taxed only u/ss. 115A, 44D or 44DA. The amendments vide Finance Act 2010; inserting mutually exclusionary clauses in s. 44BB and s.44DA are clarificatory. The services rendered by the assessee falls within the scope of Technical S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment order. 8. We have heard the rival submissions and have given thoughtful consideration to the orders of the authorities below. We have carefully perused the service agreement which is exhibited at pages 218 to 262 of the paper book. The bone of contention is that the Assessing Officer did not consider the case of the assessee u/s 44BB of the Act on the ground that section 44BB of the Act is not applicable to second level contractors. A similar issue was considered by the co- ordinate bench in the case of Technip UK Ltd [supra]. The relevant findings read as under: 17. The second contention of the Revenue is that section 44BB of the Act is not applicable to second level contractors. 18. A plain reading of section 44BB of the Act envisages a non-resident service provider not merely engaged in the business of providing services or facilities in connection with prospecting, extraction or production of mineral oils but providing such services / facilities to a person / entity engaged in such activities. The said section does not distinguish between the main contractor or a sub-contractor. If the intention of the Legislature was to restrict the benefit of section 44 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for the purposes of prospecting or extraction or production of mineral oils. The language in section 44BB in our view is clear so also the Legislative intention. It is a trite law that has already held by the Hon'ble Supreme Court in B. Parmannand v.Mohan Koikal [2011] 4 SCC 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 vision which is plan and unambiguous . If the legislatures intention as contended by the Revenue was to restrict the benefit of sec. 44BB only to the main contractor or ONGC, then the words after 'the assessee engaged in the business of supplying plant and machinery on hire' or 'providing services or facilities' ought to e been omitted. Hence, where the provision does not create any discrimination between the person who actually does the activity of prospecting for or extraction or production, and the person who supplies the plants and machinery, the narrow interpretation of the provision is thus not permitted. The basic condition to satisfied in the said provision is that the plant or machinery su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduction log evaluation and analysis. 37. Training on well control. 38. Training on implementation of Six Sigma concepts. 39. Training on implementation of Six Sigma concepts. 40. Training on Drilling project management. 41. Training in Safety Rating System and assistance in development and audit of Safety Management System. 42. To develop technical specification for 3D Seismic API modules of work and to prepare bid packages. 43. Supply supervision and installation of software which is used for analysis of flow rate of mineral oil to determine reservoir conditions. 44. Supply, installation and familiarization of software for processing seismic data. 11. In the light of the above, a perusal of the service contract mentioned elsewhere clearly shows that the appellant had rendered similar services to ENI India Ltd for which services it received the revenue which it offered u/s 44BB of the Act. Considering the facts of the case in totality, in the light of judicial decisions discussed hereinabove, we are of the opinion that the assessee s case comes within the purview of section 44BB of the Act and its income should be taxed accordingly. First substantive gr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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