TaxTMI 
TaxTMI 
TaxTMI 
2016 (8) TMI 255
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.... 2. Whether on the facts and in the circumstances of the case, the Ld CIT (A) has erred in ignoring the effect of the amendment brought in vide Finance Act, 2010 w.e.f. 01.04.2011, in terms of which income covered by section 44DA has been specifically excluded from the scope of section 44BB for Asstt Years 2011-12 (the year under consideration) onwards. 2.1 Whether on the facts and circumstances of the case, the Ld CIT (A) has erred in ignoring the distinct scheme of taxation of Fee for Technical Services ('FTS') and Royalty and disregarding the insertion of provisos in section 44BB/44DA/ 115A and the rationale behind the introduction of said amendment in the Finance Bill 2010 in holding that the income of the assessee from the above services was covered under the presumptive provisions of section 44BB. 2.2 The Ld CIT(A) has erred in not appreciating the fact that even in terms of ratio of the judgment in the said of OHM Ltd [[352, ITR 406 ( Delhi)] cited by him, the provisions of section 44BB are not applicable where the scope of the services/facilities provided by an assessee is general in nature falling under section 44DA(l) of the Act. 2.3 The Ld CIT(A) has erred ....
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.... interest u/s 234B is not chargeable in all cases, particularly in cases where the Non-Resident assessee/payee/deductee has played a role in inducing non-deduction or short-deduction on the part of the payer/deductor. b. The Ld. CIT (A) has erred in failing to take note of the observations of the Hon'ble High Court in the case of M/s Mitsubishi [330 ITR 578 (Del) that the role of the assessee/payee/deductee in short-deduction or non-deduction of tax needs to be ascertained before claim regarding non-liability to interest u/s 234B of the Act is accepted, a proposition affirmed subsequently in the case of M/s Alcatel Lucent (judgment of Delhi High Court dated 7.11.2013 in ITA No. 327 & Ors of 2012)." 3. The assessee has raised the following grounds of appeal in the cross objection:- "1. That the Ld. Commissioner of Income-tax, Appeals-ll, Dehradun [CIT(A)] erred in not holding that the nature of operations undertaken by the respondent under the various contracts with its customers was not fees for technical services as defined in Explanation (2) to section 9(1 ){vii) of the Income Tax Act, 1961. 2. Without prejudice to the above, that the Ld. CIT(A) has erred in not holdi....
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....ith oil extraction and therefore following the decision of Hon'ble Delhi High court in case of OHM Ltd. 352 ITR 406 (Del), he held that gross receipt of the assessee shall be dealt with u/s 44BB of the Act and not characterized as fees for technical services or royalty. Against this order of the ld CIT(A) revenue has filed an appeal and assessee has filed cross objection. 5. Before us the ld DR relied upon the order of the ld Assessing Officer, however, it was fairly conceded by him that now this issue does not survive in view of the decision of the Hon'ble Supreme court in case of ONGC Vs. CIT in Civil Appeal No. 731/2007 dated 01.07.2015. Against this ld AR submitted that the issue is squarely covered in favour of the assessee vide order dated 30.12.2015 in case of the assessee for AY 2005-06. He further submitted that the ld Assessing Officer has himself accepted this position in AY 2013-14. He further submitted that the cross objection filed by the assessee is supportive in nature. 6. We have carefully considered the rival contentions. The issue of taxability of the receipt on identical facts and circumstances has been considered in assessee's own case in ITA NO. 5868/Del/201....
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....ks contemplated under an agreement, executed with a non-resident assessee or a foreign company, with mining activity or mining operations that would be crucial for the determination of the question whether the payments made under such an agreement to the non-resident assessee or the foreign company is to be assessed under Section 44BB or Section 44D of the Act. The test of pith and substance of the agreement commends to us as reasonable for acceptance. Equally important is the fact that the CBDT had accepted the said test and had in fact issued a circular as far back as 22.10.1990 to the effect that mining operations and the expressions "mining projects" or "like projects" A1 Mansoori Specialized Engineering occurring in Explanation 2 to Section 9(1) of the Act would cover rendering of service like imparting of training and carrying out drilling operations for exploration of and extraction of oil and natural gas and hence payments made under such agreement to a non-resident/foreign company would be chargeable to tax under the provisions ofSection 44BB and not Section 44D of the Act. We do not see how any other view can be taken if the works or services mentioned under a particula....
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....ion of generator. 21. 6008 Evaluation of ultimate resource potential and presentations outside India in connection with promotional activities for Joint Venture Exploration program. 22. 1531 Review of sub-surface well data, provide repair plan of wells and supervise repairs. 23. 733 Repair of gas turbine, gas control system and inspection of gas turbine and generator. 24. 741 Repair and inspection of turbines. 25. 737 Repair, inspection and overhauling of turbines. 26. 736 Inspection, engine performance evaluation, instrument calibration and inspection of far turbines. 27. 1522 Replacement of choke and kill consoles on drilling rigs. 28. 1521 Inspection of gas generators. 29. 1515 Inspection of rigs. 31. 1240 Inspection of existing control system and deputing engineer to attend to any problem arising in the machines. 32. 1529 Inspection of drilling rig and verification of reliability of control systems in the drilling rig. 33. 2008 Expert advice on the device to clean insides of a pipeline. 34. 2795 Feasibility study of rig to assess its remaining useful life and to carry out structural alterations. 35. 925 Engineering analysis of rig. A1 M....