2019 (1) TMI 1851 - AT - Income Tax

Appeals allowed under tax law, income to be taxed under Section 44BB. Interest levy deleted. Penalty proceedings dismissed.

M/s BG International Limited Versus Joint Commissioner of Income Tax, (International Taxation), Dehradun.

The Tribunal partly allowed the appeals, directing that the income be taxed under Section 44BB instead of Section 44DA. The claim that amounts received ... Accrual of income in India - reimbursement of expenses by BG Exploration and Production India Limited (‘BGEPIL’) to the appellant for services rendered - As stated that the assessee is rendering services to BG Exploration and Production India Limited (BGEPIL) and BGEPIL is reimbursing expenses to the assessee, therefore, there is no income which could be chargeable to tax in India - HELD THAT:- As decided in own case for assessment years 2008-09 to 2010-11 we hold that the amount received by the assessee from BGEPIL is taxable and cannot be accepted to be reimbursement of expenses by BGEPIL to the assessee. However, the assessee’s alternate contention that the above receipt should be taxed as per provisions of section 44BB is accepted. Thus the amount received by the assessee from BGEPIL cannot be accepted to be reimbursement of expenses by BGEPIL to the assessee and the same is taxable in India. Payments received by the appellant from BGEPIL - taxable in terms of section 44DA of the Act as opposed to section 44BB - HELD THAT:- Section 44DA would be applicable where the income by way of royalty or fees for technical services is received from the Government or an Indian concern in pursuance to an agreement made by a non-resident or a foreign company with Government or Indian concern after 31st day of March, 2003. In the case under consideration before us, admittedly, the payment is neither received from the Government nor from an Indian concern. Therefore, Section 44DA would not be applicable and, the decisions of ITAT in assessee’s own case in earlier years holding that the income of the assessee is to be determined as per Section 44BB, would hold good. We, therefore, respectfully following the decisions of ITAT in earlier years, direct the Assessing Officer to determine the income of the assessee by applying Section 44BB. Levying interest under section 234B - HELD THAT:- As relying on own case we hold that the assessee was not liable to pay interest under Section 234B. Issues Involved:1. Taxability of income under Section 44BB vs. Section 44DA of the Income-tax Act.2. Reimbursement of expenses and its tax implications.3. Levy of interest under Section 234B of the Income-tax Act.4. Initiation of penalty proceedings under Sections 271B and 271(1)(c) of the Income-tax Act.5. Violation of principles of natural justice.Detailed Analysis:1. Taxability of Income under Section 44BB vs. Section 44DA:The core issue was whether the income received by the assessee from BG Exploration and Production India Limited (BGEPIL) should be taxed under Section 44BB or Section 44DA of the Income-tax Act. The assessee argued that the income should be taxed under Section 44BB, which deals with the taxation of income from services related to the exploration of mineral oils. The ITAT had consistently held in previous years that the income should be taxed under Section 44BB. The Tribunal reiterated that Section 44DA was not applicable as the payments were not received from the Government or an Indian concern, which is a precondition for Section 44DA. Consequently, the Tribunal directed the Assessing Officer to determine the income under Section 44BB.2. Reimbursement of Expenses:The assessee claimed that the amounts received from BGEPIL were reimbursements for services rendered and should not be taxable. However, the Tribunal found that the assessee failed to establish a one-to-one nexus between the expenses incurred and the services rendered. Despite the existence of a global cost allocation policy, the assessee could not substantiate how the expenses were allocated to Indian operations. The Tribunal followed its earlier decisions and held that the amounts received could not be accepted as reimbursements and were taxable. However, the income was to be taxed under Section 44BB, not as business income under Section 44DA.3. Levy of Interest under Section 234B:The Tribunal addressed the issue of interest levied under Section 234B. It found that the issue was covered in favor of the assessee by previous ITAT orders, which held that when tax is deductible at source, the liability of the assessee to pay advance tax gets discharged. Therefore, the assessee was not liable to pay interest under Section 234B, and this ground was allowed.4. Initiation of Penalty Proceedings under Sections 271B and 271(1)(c):The assessee challenged the initiation of penalty proceedings under Sections 271B and 271(1)(c). The Tribunal found these grounds to be premature and accordingly rejected them.5. Violation of Principles of Natural Justice:The assessee claimed that the orders passed by the AO/DRP violated principles of natural justice. However, the Tribunal noted that no specific arguments or evidence were advanced to support this claim. Consequently, this ground was also rejected.Conclusion:The appeals were partly allowed. The Tribunal directed that the income should be taxed under Section 44BB and not under Section 44DA. The claim that the amounts received were reimbursements was rejected, and the levy of interest under Section 234B was deleted. The initiation of penalty proceedings and the claim of violation of natural justice were dismissed.