TMI Blog2023 (10) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... R : This appeal filed by the assessee is directed against the order of Assessing Officer passed under section 143(3)/144C(13) of the Income-tax Act, 1961 (for short 'the Act') pursuant to the directions of the Dispute Resolution Panel (DRP) for the assessment year 2012-13. 2. Grounds of appeal taken by the assessee read as under :- 1. In law and on facts and circumstance of the case, Learned Assessing Officer (,'Ld. AO'') erred In proposing addition of Rs. 68,32,902/- in the order passed u/s 143(3)/144C of the Income Tax Act (''the Act''). 2. In law and on facts and circumstances of the case, Ld. AO erred in not affording a proper opportunity to the Assessee of being heard. The Assessment order passed is against the principle of natural justice. 3. Without prejudice to above and in law and in facts and circumstances of the case, the Ld. AO erred in not computing the income of Assessee u/s 44BB(1) of the Act. 4. In facts and circumstances of the case, the Ld. AO erred in computing the Income of the Assessee as per Section 44DA of the Act. 5. Without prejudice to above and in law and circumstances of the case, the Ld. AO err ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.Y. 2009-10 which was passed on 28.02.2014 and the return was e-filed on 28.03.2014. Therefore, the plea to be now taken in purview of section 44BB is not justified as the assessee has itself made a clear choice. It is a well accepted proposition in legal doctrines that vigilant bus non dormientibus-meaning that law will help only those who are vigilant. Law will not assist those who are careless of his/her right. In order to claim one's right, she/he must be watchful of his/her right. Only those persons, who are watchful and careful of using his/her rights, are entitled to the benefits of law. Therefore, respectfully following the earlier DRP directions and in line with the considered directions given therein, the objections are rejected. It is seen that the assessee has adopted similar approach of non compliance in the previous proceedings also. The DRP had in the earlier period in para 4.3 of its directions directed to AO to consider the submissions after affording a fresh opportunity to the assessee. Respectfully following the same, this panel also directs that AO to grant a reasonable opportunity to the assessee within the time available under law to furnish necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 10,78,358/-) (iii) The assessee's written submission vide their reply dated 16.11.2015, with regard to disallowance made as per para 5.1 of the draft assessment order regarding Depreciation and Amortization expenses of Rs. 49,86,844/-, has been perused and found not acceptable. The assessee could not prove the genuineness of this claim of depreciation and amortization expenses even during these proceedings. No documentary evidence was filed in support of their claim even now. The assessee could not prove/substantiate the genuineness of this claim of expenses nor could it prove that conditions required for claim of depreciation are satisfied when there was no business activity during the year for WT services. The receipts shown in P/L account in respect of well testing services (WT) were found to be not in respect of any business activity in respect of this service/contract and therefore it is clear that the claim of depreciation is not genuine. (iv) The assessee's claim of allow-ability of expenses amounting to Rs. 2,74,500/-, addition on account of which was made in the draft assessment order owing to claim of expenses which were found to be not pertaining to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the activities carried out by the assessee are not disputed by the revenue, then it would be unjust to reject the claim of the assessee for determining the income in terms of the section 44BB of the Act. We have also noticed from the contracts executed by the assessee that the pith and substance of assessee s work is providing services in connection with prospecting/ extraction/ production of mineral oil, as such, is squarely eligible to be assessed u/s 44BB of the Act. In fact a similar view has been accepted by the ld CIT(A) for AY 2009- 10 which order has been approved by this Tribunal for AY 2009-10 in ITA No. 5109 and 5110/Del/2013 dated 28.02.2014 in assessee s own case in respect of contract with ONGC. Hence, there is no scope of taking a divergent stand from the view taken by this Tribunal in AY 2009-10 in respect of contract with ONGC which is continuing during this year also. However, with regard to contract entered with the Petrogas E P LLC, we find that the same was entered for provision of MUD services on service contract to drill 04 number of wells with water based mud system. Infact this contract with Petrogas was entered as a consortium of Oil exploration company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under normal provisions of the Act. This is so because of non obstante clause provided u/s 44BB of the Act which reads as under:- Special provision for computing profits and gains in connection with the business of exploration, etc., of mineral oils. 44BB. (1) Notwithstanding anything to the contrary contained in sections 28 to 41 and sections 43 and 43A, in the case of an assessee , being a nonresident, 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 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 44DA or section 115A or section 293A apply for the purposes of computing profits or gains or any other income referred to in those sections. (2) The amounts referred to in sub-section (1) shall be the following, namely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... books of account and although under the law, a deduction must be allowed by the Income-tax Officer, the assessee will lose the right of claiming or will be debarred from being allowed that deduction. Whether the assessee is entitled to a particular deduction or not will depend on the provision of law relating thereto and not on the View which the assessee might take of his rights nor can the existence or absence of entries in the books of account be decisive or conclusive in the matter. 23. Further, the Hon'ble Delhi High Court also in the case of CWT Vs. Meattles (P) Ltd reported in 156 ITR 569 had held whether the revenue authorities take a particular view of the statutory provision in the income tax assessment and later on realise that it was mistaken view, then they cannot be estopped from taking correct view of the statutory provision later on. Further, Hon'ble Supreme Court in the case of Director of Inspection of Income Tax Vs. Pooran Mall and sons reported in 96 ITR 390 had held as under:- The question whether a certain provision of law is directory does not fall to be decided on different standards because it is found in a taxing statute. There is no rule ..... X X X X Extracts X X X X X X X X Extracts X X X X
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