TMI Blog2018 (10) TMI 1988X X X X Extracts X X X X X X X X Extracts X X X X ..... ew that the Consortium agreement between the assessee and Transocean Offshore Deepwater Drilling Private Limited do not constitute an AOP and the Transocean Offshore Deepwater Drilling Inc being consortium member has rightly offered to tax the receipts under section 44BB in the return of income. On the face of this consistent view taken by the Tribunal over a period of time, there s no reason for us now to take a different view since no change of circumstances to affect the applicability of this consistent view for the years under consideration in these two appeals. No material is produced before us by revenue to take a different view and the one that was taken in the earlier years. In the circumstances where of the considered opinion that a view that was taken consistently in assessee s own case file their earlier years shall not slightly be disturbed. We therefore while respectfully following the decisions of the coordinate bench is of this tribunal in assessee s own case, allow the grounds of appeal in these two appeals also. - I.T.A. Nos. 809 & 810/DEL/2016 - - - Dated:- 24-10-2018 - SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI K.NARASIMHA CHARY, JUDICIAL MEMBER F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome tax return offering the revenue received by it from this contract under section 44BB of the Income Tax Act, 1961 (in Short Act ). The case of the assessee was selected for scrutiny and the AO passed the assessment order and proposed to complete the assessment holding that the consortium between TODDI and SASL (Assessee) constitute an Association of Person under the provisions of the Act and assessed the contractual revenue on protective basis in the hands of the assessee. In appeal Ld. CIT(A) held that the consortium of assessee and TODDI did not constitute an association of Persons and the assessment of income of assessee should be done on substantive basis only. 5. Accordingly, the Assessee filed return offering the revenues from the contract u/s 44BB of the Act, but the ld. AO again issued a draft assessment order proposing to complete the assessment holding that the consortium between the assessee and TODDI constitutes an Association of Person. Assessee filed objections before the Dispute Resolution Panel (in Short DRP) against the draft assessment order and the DRP upheld the action of the AO that the consortium of DODDI SASAL (assessee) constituted an AOP. 6. La ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year 2007-08 and AY 2008-09 respectively that the consortium of assessee and TODDI did not constitute an Association of Persons (AOP). 8. Thereafter, the AO completed the assessment vide order dated 25.7.2015 passed u/s. 143(3)/147/144 of the Act by holding that the consortium of assessee and TODDI constituted an AOP and the income from the contract was estimated by applying an ad hoc profit rate of 25% on the aggregate of the receipts of assessee and TODDI from the ONGC contract and this amount was held to be taxable as business income in the hands of the alleged AOP. Further, the credit of taxes deducted at source by ONGC was not allowed while computing the taxes payable by the alleged AOP and interest u/s. 234A and 234B was levied as well as penalty u/s. 271(1)(c) was initiated. 9. Aggrieved by the order of the AO, the Assessee appealed before the Ld. CIT(A), who vide his impugned order dated 15.12.2015 has held by observing that following the orders of his predecessors CIT(A) in appeal filed for AYs 200708 and 2008-09, this appeal is not maintainable, since there is no impugned order against this appellant and accordingly none of the grounds were adjudicated and appeal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against this appellant. Accordingly, none of the grounds are adjudicated. 13. There is no dispute on facts that there is no order against the assessee to challenge in the appeal. However, it is brought to our notice by the Ld. AR that the issue is no longer res integra, and the question whether or not the consortium Agreement dated 04/05/03 between Slumberger Asia Services Ltd and Transocean Offshore Deep water Drilling Pvt. Ltd., constitutes an AOP has been considered by the coordinate Bench of this Tribunal in in ITA No. 5822/Del/2010 and 105/Del/2012 for A. Y. 2008-09 and was answered in the negative ie., in favour of the assessee. Further it is submitted that following the same, in assessee s own case in ITA No 4467 and 4468/DEL/2014 a coordinate Bench of this Tribunal on identical grounds as are raised in these appeals, accepted the contentions of the assessee and allowed the appeals of the assessee. 14. A copy of the above order dt. 24.5.2018 in ITA No 4467 and 4468/DEL/2014 is produced before us and relevant portions read as follows: 3. In assessee s appeal the common grievance reads as under :- Based on the facts and circumstances of the case, Schlumberger Asi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Hon ble Supreme Court in the case of ONGC Ltd (supra) the issue stands settled as on date, regarding prospecting for or extraction or production of mineral oil is not to be treated as technical services for the purposes of Explanation 2 to section 9 (1) (vii) and would rather be covered by section 44 BB of the Act. 4.7 Thus in our considered opinion Transocean Offshore Deepwater Drilling Inc. being consortium member has rightly offered to tax the receipts u/s 44BB in the return of income. 6. And in the case of the assessee the coordinate bench held as under :- 10. ITA No.4655, 4656, 3044 /Del/2013 (ASSESSMENT YEAR 2007-08 and 2008-09 2009-10) (Revenue s appeal) Co. no. 60 66, 61 67/Del/2014 (Asst. Yr. 2007-08 2008-09) Both the parties reiterated identical arguments that have been advanced in the case of appeals filed by Transocean Offshore Deepwater Driling Pvt. Ltd. 10.1 Issues raised regarding consortium being an AOP or has been decided in favour of assessee and against revenue hereinabove. Accordingly these appeals by Revenue stands dismissed. 7. Respectfully following the decision of the coordinate bench in assessee s own case both the appeals f ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
