2008 (4) TMI 286

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..... als), Dehradun, (hereinafter referred as "the CIT(A)") is set aside. The Commissioner of Income-tax (Appeals) dismissed the appeal of the assessee and affirmed the assessment order passed by the Assessing Officer under section 143(3) of the Income-tax Act, 1961. 2. Heard learned counsel for the parties. 3. The brief facts of the case are that Oil and Natural Gas Commission Limited (hereinafter referred as "the ONGC") is representative of the non-resident company (hereinafter referred as NRC) respondent-assessee in the case. The assessee has rendered its services to ONGC for the purposes of exploration, extraction and production of mineral oils. During the year under consideration, the assessee-NRC was engaged by ONGC for rendering service .....

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..... business or profession': Provided that this sub-section shall not apply in a case where the provisions of section 42 or section 44D or section 115A or section 293A apply for the purposes of computing profits or gains or any other income referred to in those sections." 7. The above sub-section (1) of section 44BB of the Act contains the proviso quoted above which provides that the sub-section would not apply where the provisions of section 42, 44D, 115A or 293A are applicable in computing the profits and gains or income of the assessee. Learned counsel for the appellants has argued that since the assessee has only rendered technical services for which it has been paid the fee as such its case is covered under section 115A read with section .....

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..... e nothing but the technical services rendered by it in the work of oil exploration for which it has charged the fee. 9. In the above circumstances, we are of the opinion that the Commissioner of Income-tax (Appeals) has not committed any error of law in passing the order dated August 26, 2004, and uphold the view taken by the Commissioner of Income-tax (Appeals) and that of the Assessing Officer whereby the assessee as a technical service provider has been directed to pay tax at the rate of 15 per cent. under section 44D read with section 115A of the Income-tax Act, 1961, instead of 10 per cent. chargeable under section 44BB of the Act. The appeal is allowed. The impugned order dated February 9, 2007, passed by the Income-tax Appellate Tri .....

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