2014 (10) TMI 735 - AT - Income Tax

Tribunal rules seismic data services taxable as technical fees, rejects apportionment claim. Interest, penalties upheld.

The Tribunal upheld the taxability of seismic data acquisition and processing services under Section 9(1)(vii) as fees for technical services. It also ... Mineral oil, business for prospecting/ exploration, etc. - Taxability of seismic data acquisition and processing services Income deemed to accrue or arise in India - Whether the income of the assessee has to be computed in accordance with the provisions of sec. 44BB of the Act or brought to tax u/s 9 (1) (vii) – Held that:- As decided in assessee’s own case for the earlier assessment year, it has been rightly held that following the decision in CGG Veritas Services, SA Versus Additional Director of Income-tax, (International Taxation) [2012 (4) TMI 280 - ITAT DELHI] - the fee for technical services rendered in connection with prospecting for or extraction or production of mineral oil though effectively connected with PE or fixed place of profession will fall not under section 44BB(1) and will be assessable under section 44DA of the Act - the receipts are not connected with PE in India and hence the fee for technical services rendered in connection with prospecting for or extraction or production of mineral oil will be assessable u/s 115A of the Act – thus, the order of the CIT(A) is upheld - Decided against assessee. Taxability of mobilization/demobilization revenues - Nature of mobilization/demobilization activities – Held that:- Following the decision in SEDCO FOREX INTERNATIONAL INC. (formerly known as Forex Neptune International Inc.) Versus CIT [2007 (9) TMI 196 - UTTARAKHAND HIGH COURT] - Mobilisation is a stage payment, as part of the total consideration for execution of the contract - The assessee would be moving its machinery from one place of work to another place of work - Mobilisation is paid as an advance for such movement and is generally adjusted against running bills - It is not a case where a separate payment is made for a transportation contract - Mobilisation is an incidental activity to the main activity of carrying out the contract in India – Decided against assessee. Issues Involved:1. Taxability of seismic data acquisition and processing services.2. Taxability of mobilization/demobilization charges for activities outside India.3. Levy of interest under sections 234B and 234C.4. Initiation of penalty proceedings under sections 271(1)(c) and 271B.5. Short grant of credit for taxes deducted at source (TDS).Detailed Analysis:1. Taxability of Seismic Data Acquisition and Processing Services:The primary issue was whether the income from seismic data acquisition and processing services should be computed under Section 44BB or taxed as 'fees for technical services' under Section 9(1)(vii). The assessee argued that these services were in connection with the prospecting for or extraction of mineral oil and should be taxed under Section 44BB. However, the Assessing Officer and the Dispute Resolution Panel (DRP) held that the income should be taxed as fees for technical services under Section 9(1)(vii). The Tribunal referenced the case of CGG Veritas Services, SA vs. ADIT International Taxation Dehradun, which supported the revenue's stance that such services fall under the definition of fees for technical services and are taxable under Section 115A. Thus, the Tribunal upheld the decision to tax the income under Section 9(1)(vii).2. Taxability of Mobilization/Demobilization Charges for Activities Outside India:The assessee contended that mobilization/demobilization revenues attributable to activities outside India should not be taxed. The Tribunal noted that mobilization activities include the movement of equipment, and substantial portions of these operations occur outside India. The assessee argued that only the portion of revenue attributable to activities within Indian territorial waters should be taxed. The Tribunal, however, referred to the Uttarakhand High Court rulings in Sedco Forex International Inc., Halliburton Offshore Service Inc., and Trans Ocean Offshore Inc., which held that Section 44BB is a complete code in itself and all amounts received, including mobilization/demobilization charges, are taxable. The Tribunal concluded that mobilization is an incidental activity to the main contract execution in India and dismissed the assessee's arguments, affirming the taxability of the entire mobilization/demobilization revenue.3. Levy of Interest Under Sections 234B and 234C:The assessee challenged the levy of interest under Sections 234B and 234C, arguing that as a non-resident, its entire revenue was subject to tax withholding under Section 195, and it had no liability to pay advance tax. However, the Tribunal did not provide a detailed discussion on this issue in the judgment, implying that the levy of interest was upheld as per the Assessing Officer's order.4. Initiation of Penalty Proceedings Under Sections 271(1)(c) and 271B:The assessee contested the initiation of penalty proceedings for allegedly concealing income or furnishing inaccurate particulars and for failing to comply with Section 44AB by not furnishing audited accounts by the specified date. The Tribunal did not delve into the specifics of this issue in the judgment, suggesting that the initiation of penalty proceedings was not overturned.5. Short Grant of Credit for Taxes Deducted at Source (TDS):The assessee claimed that it was granted credit for TDS only to the extent of Rs. 81,334,703 against a claimed amount of Rs. 361,969,036, resulting in a short credit of Rs. 280,634,333. The Tribunal did not address this issue in detail in the judgment, indicating that the matter of TDS credit was not resolved in favor of the assessee.Conclusion:The Tribunal upheld the taxability of seismic data acquisition and processing services under Section 9(1)(vii) as fees for technical services. It also affirmed the taxability of the entire mobilization/demobilization revenue, rejecting the assessee's claim for apportionment based on activities outside India. The levy of interest under Sections 234B and 234C, initiation of penalty proceedings under Sections 271(1)(c) and 271B, and the short grant of TDS credit were not overturned. The appeal was dismissed in favor of the revenue.