2013 (10) TMI 742 - AT - Income Tax

Tribunal rules in favor of Hong Kong company on service tax inclusion in income computation

Orient Overseas Container Line Ltd. Versus Additional Director of Income-tax, (International Taxation)

The Tribunal ruled in favor of the Assessee, a Hong Kong-based Company operating ships in international traffic, holding that the Service Tax collected ... Computation of profit from Shipping business u/s 44B - inclusion of service tax - Whether statutory due paid to be included in the gross receipts for computation of profit u/s 44B of the Income Tax Act – Held that:- Issue decided in favour of the assessee holding that the amount of service tax, being in the nature of statutory payment which does not involve any element of profit, cannot be included in the gross receipts for the purpose of computing the presumptive income of the assessee under section 44B – Decided in favor of Assessee. Levy of interest u/s 234B of the Income Tax Act – Held that:- Assessee in the present case is admittedly a Non Resident in India and its entire income is liable for deduction of Tax at source. As held by the Hon'ble Bombay High Court in the case of DIT (International Taxation) v. NGC Network Asia LLC [2009 (1) TMI 174 - BOMBAY HIGH COURT], when a duty is cast upon payer to pay tax at source, on its failure to do so, no interest can be imposed upon payee Assessee under section 234B - Following the decision of Hon'ble Jurisdictional High Court, in the present case, interest under section 234B cannot be imposed on the Assessee on failure of payer to deduct tax at source from the payments made to the Assessee – Decided in favor of Assessee. Issues involved:1. Whether the Service Tax collected by the Assessee should be considered in its gross receipts for computing total income under section 44B of the Income Tax Act, 1961.2. Levy of interest under sections 234B and 234C.3. Validity of reassessment under section 147.Issue 1: Service Tax in Gross Receipts:The main issue in the appeals was whether the Service Tax collected by the Assessee should be part of its gross receipts for income computation under section 44B. The Assessee, a Hong Kong-based Company operating ships in international traffic, argued that the service tax was collected on behalf of the government and had no profit element. The Assessing Officer (AO) contended that service tax should be included in gross receipts. The AO relied on decisions of the Hon'ble Uttaranchal High Court, differentiating cases involving statutory payments. The Assessee cited the Schlumberger Asia Services Ltd. case, asserting that service tax, being a statutory payment, should not be included in gross receipts. The Tribunal favored the Assessee, considering service tax a statutory payment without profit element, aligning with previous decisions.Issue 2: Interest under Sections 234B and 234C:Regarding interest under sections 234B and 234C, the Tribunal referenced the NGC Network Asia LLC case, stating that when the payer fails to deduct tax at source, no interest can be imposed on the payee. Following this, the Tribunal ruled that interest under section 234B cannot be levied on the Assessee due to its non-resident status and liability for tax deduction at source. The issues related to interest were deemed consequential, and the AO was directed to provide relief to the Assessee on these matters.Issue 3: Validity of Reassessment:In the appeal for AY 2008-09, a challenge to the validity of reassessment under section 147 was raised. However, as the Tribunal had already ruled in favor of the Assessee by excluding service tax from gross receipts, making the reassessment issue moot, no further adjudication was deemed necessary. Consequently, both appeals of the Assessee were allowed based on the decisions outlined above.This detailed analysis of the judgment highlights the key legal arguments, precedents, and decisions made by the Tribunal on the issues raised in the appeals.