2016 (5) TMI 1250 - AT - Income Tax

Tribunal rules in favor of assessee on tax treatment, jurisdiction, and penalty proceedings under Income Tax Act.

The Tribunal allowed all appeals filed by the assessee, determining that income from services related to geophysical exploration and interpretation should ... Taxability of assessee's income 44BB - assessee submitted that the gross receipts of assessee are taxable u/s 44BB because insertion of section 44DA in the proviso to sec. 44BB w.e.f. 1.4.2011 has been held to be prospective in nature - Held that:- Assessee in our case is carrying on seismic surveys the receipts from which have been held taxable u/s 44BB in various decisions noted in the submissions advanced by ld. counsel for the assessee. Further, the decision relied upon by ld. CIT(DR) has not considered the effect of insertion of sec. 44DA in the proviso to section 44BB. On the other hand, we find that Tribunal in the case of Baker Hughes Asia Pacific Ltd. (2014 (7) TMI 601 - ITAT DELHI ) has relied on the decision of Hon’ble Jurisdictional High Court (Uttrakhand) in B.J. Services [2011 (8) TMI 477 - UTTARAKHAND HIGH COURT] for rejecting the department’s contention that section 44DA inserted by Finance Act 2010 w.e.f. 1.4.2011 in section 44BB is retrospective. Moreover, we find that Hon’ble Supreme Court in the case of ONGC [2015 (7) TMI 91 - SUPREME COURT ] has set at rest the entire controversy by holding that provisions of various services in connection with the prospecting for, or extraction or production of mineral oils, is taxable on presumptive basis u/s 44BB of the Act. The services carried on by assessee are in connection with the prospecting for mineral oils and, therefore, following the decision of Hon’ble Supreme Court, the assessee’s appeal deserves to be allowed Issues Involved:1. Applicability of Section 44BB vs. Section 44DA for taxation of income.2. Jurisdiction and legality of the order under Section 263.3. Reopening of assessment under Section 148.4. Initiation of penalty proceedings under Section 271(1)(c).Issue-wise Detailed Analysis:1. Applicability of Section 44BB vs. Section 44DA:The primary issue in the appeals was whether the income received by the assessee for rendering services in geophysical exploration and interpretation should be taxed under Section 44BB or Section 44DA of the Income-tax Act. The assessee argued that its income was taxable under Section 44BB, which applies to non-residents providing services or facilities in connection with the exploration or extraction of mineral oils. The Assessing Officer (AO) contended that the services rendered were technical and thus taxable under Section 44DA. The Tribunal referred to various judicial precedents, including the Supreme Court's ruling in the case of ONGC Ltd. vs. CIT, which held that if the dominant purpose of the agreement is for prospecting, extraction, or production of mineral oil, the income should be assessed under Section 44BB. The Tribunal concluded that the services provided by the assessee were in connection with the prospecting for mineral oils and thus taxable under Section 44BB.2. Jurisdiction and Legality of the Order under Section 263:The assessee challenged the order passed under Section 263 by the Director of Income Tax (International Taxation), which revised the AO's order accepting the assessee's income under Section 44BB. The Tribunal held that since the core issue of taxability under Section 44BB was decided in favor of the assessee, the revision order under Section 263 became academic and thus, the assessee's appeal was allowed.3. Reopening of Assessment under Section 148:For the assessment year 2006-07, the AO had reopened the assessment under Section 148. The Tribunal noted that since the merits of the case were decided in favor of the assessee, holding that the income was taxable under Section 44BB, the issue of reopening the assessment became academic. Consequently, the Tribunal set aside the AO's order and allowed the assessee's appeal.4. Initiation of Penalty Proceedings under Section 271(1)(c):The assessee also contested the initiation of penalty proceedings under Section 271(1)(c) for concealment of income. The Tribunal observed that since the primary issue of taxability under Section 44BB was decided in favor of the assessee, the initiation of penalty proceedings was without jurisdiction and not warranted. Therefore, the Tribunal ruled in favor of the assessee on this ground as well.Conclusion:The Tribunal allowed all the appeals filed by the assessee, holding that the income received from services related to geophysical exploration and interpretation was taxable under Section 44BB and not under Section 44DA. The Tribunal also set aside the orders passed under Section 263 and the reopening of assessments under Section 148, rendering the initiation of penalty proceedings under Section 271(1)(c) as without jurisdiction.