2019 (3) TMI 2066 - HC - Income Tax

Service Tax Excluded from Income for Presumptive Profit Computation, Bombay HC Affirms ITAT's Decision.

Pr. Commissioner of Income Tax, International Taxation-1, Mumbai. Versus Boskalis International-Dredging International CV.

The Bombay HC dismissed the Revenue's appeal, affirming that service tax should not be included in the Assessee's income for computing presumptive profit ... Interpretation of Section 44BB - Service tax amount inclusion/exclusion while computing the gross receipts u/s. 44BB - Whether ITAT has erred in excluding service tax from the amount paid or payable to the assessee on account of provisions of services and facilities in connection with or supply of plant and machinery on hire used, or to be used, in the prospecting for, or extraction or production of, mineral oils in India for the purpose of determining presumptive profit u/s 44BB? - HELD THAT:- As decided in Mitchell Drilling International (P.) Ltd. [2015 (10) TMI 259 - DELHI HIGH COURT] for the purposes of computing the 'presumptive income' of the Assessee for the purposes of Section 44BB of the Act, the service tax collected by the Assessee on the amount paid to it for rendering services is not to be included in the gross receipts in terms of Section 44BB(2) read with 44BB(1). The service tax is not an amount paid or payable, or received or deemed to be received by the Assessee for the services rendered by it. The Assessee is only collecting the service tax for passing it on to the government. Revenue appeal dismissed. Issues: Interpretation of Section 44BB of the Income Tax Act regarding inclusion of service tax in the Assessee's income for computing presumptive profit.In this judgment, the High Court of Bombay heard an appeal filed by the Revenue challenging the decision of the Income Tax Appellate Tribunal. The primary issue was whether service tax should be included in the income of the Assessee for computing presumptive profit under Section 44BB of the Income Tax Act, 1962. The Assessee, engaged in dredging for oil and gas extraction, contended that service tax should not be considered as part of its income. The Tribunal relied on previous court decisions and held that service tax should not form part of the Assessee's income. The Assessee cited a Delhi High Court decision supporting this view, which was based on Supreme Court precedents and upheld that service tax collected by the Assessee does not constitute income and should not be included in gross receipts for computing presumptive income under Section 44BB. The High Court concurred with this reasoning and dismissed the Income Tax Appeal, upholding the position that service tax should not be included in the Assessee's income for the purpose of Section 44BB.This judgment clarifies the treatment of service tax in the context of computing presumptive profit under Section 44BB of the Income Tax Act. It emphasizes that service tax collected by the Assessee does not constitute income and should not be included in the gross receipts for determining presumptive income. The court's decision aligns with previous rulings and highlights that the Assessee merely collects service tax on behalf of the government, and it does not form part of the income earned by the Assessee. The judgment provides a clear interpretation of the law in this regard, settling the issue raised by the Revenue regarding the inclusion of service tax in the Assessee's income for tax assessment purposes under Section 44BB of the Act.