2016 (2) TMI 1180 - AT - Income Tax

Tribunal excludes service tax from income calculation under section 44BB

The Tribunal ruled in favor of the assessee, holding that service tax, being a statutory levy without a profit element, should not be included in gross ... Computation of income u/s 44B - whether service tax collected by the assessee should form part of the gross receipt while computing income under section 44B / 44BB - Held that:- In the light of decision of the Hon’ble Delhi High Court in the case of “DIT vs. Mitchell Drilling International Pvt. Ltd.” [2015 (10) TMI 259 - DELHI HIGH COURT] n the context of provisions contained under section 44BB, which is pari materia to section 44B and the decision of the Tribunal in assessee’s own case for assessment year 2007–08, we hold that service tax collected by the assessee and paid to the Government account having no profit element cannot be included in the gross receipts for computation of income under section 44B of the Act. Accordingly, while confirming the order of the learned Commissioner (Appeals) for assessment year 2009–10, we set aside the order passed by the learned Commissioner (Appeals) for assessment year 2010–11 by allowing assessee’s claim - Decided in favour of the assessee. Issues involved:Whether service tax collected by the assessee should be included in the business profit for determining the income chargeable to tax under section 44BB of the Act.Detailed Analysis:Issue 1: Inclusion of service tax in gross receipts for computing income under section 44BBThe appeals were directed against separate orders for assessment years 2009-10 and 2010-11. The core issue was whether service tax collected by the assessee should be part of the gross receipts for computing income under section 44BB. The assessee, a non-resident company engaged in ship operations, argued that service tax, being a statutory levy without a profit element, should not be included in gross receipts. The Assessing Officer disagreed, including the service tax in the gross receipts for both years.Analysis for 2009-10:The Commissioner (Appeals) decided in favor of the assessee, citing a previous Tribunal decision in the assessee's favor for 2007-08. However, for 2010-11, the Commissioner relied on a different Tribunal decision and upheld the assessment order.Arguments and Decisions:The assessee argued that the Tribunal's previous decision in their favor for 2007-08 should be binding unless there is a change in law or facts. They also referenced a Delhi High Court decision supporting their stance. The Departmental Representative, however, supported including service tax in gross receipts, citing a different Tribunal decision.Judgment:The Tribunal analyzed conflicting decisions and precedent. They held that the earlier Tribunal decision in the assessee's favor for 2007-08 should be followed, as there were no changes in law or facts. They also referred to the Delhi High Court decision, concluding that service tax, without a profit element, should not be part of gross receipts under section 44BB. Therefore, the order for 2009-10 was confirmed in favor of the assessee, and the order for 2010-11 was set aside in favor of the assessee.Issue 2: Credit for advance tax paidThe assessee raised a ground regarding the grant of credit for advance tax paid, which the Commissioner (Appeals) did not address. The Tribunal directed the Assessing Officer to examine the issue and make a decision after verifying the details of the income tax payment.Final Decision:The assessee's appeal was partly allowed, and the Department's appeal was dismissed.In summary, the Tribunal ruled in favor of the assessee regarding the inclusion of service tax in gross receipts for computing income under section 44BB and directed further examination on the issue of credit for advance tax paid.