2011 (5) TMI 1030

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....chanically following the orders of earlier years wherein it was held that the assessee had a P.E. in India. 3. That the learned CIT(A), mechanically relying upon the orders of earlier years, has erred in rejecting the contention of the assessee that amount receivable under the contract towards supervision of erection, and commissioning is chargeable to tax u/s 44BBB of the Income-tax Act, 1961. 4. That without prejudice, the learned CIT(A), mechanically following the orders of earlier years, has erred in arbitrarily estimating profit on consideration for supervisory services @ 50% of the gross amount. 5. That without prejudice, the learned CIT(A), mechanically following the order of earlier years, has erred in uph....

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....r project as also the supervision thereof, in the absence of there being any evidence of the assessee having done any such activities other than supervision simpliciter of the assembly, erection and testing and commissioning the activities of the assessee cannot be said to fall within the meaning of the term, "business of erection of plant or machinery or testing or commissioning" as provided in the provisions of section44BBB, or to fall with in the meaning of the terms,  "construction or assembly" as provided in the exclusions provided in explanation 2 to section 9 (1) of the act. Once it is found that the assessee has not been able to prove that the assessee has involved itself in the physical activities of the business of assembly o....

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....o the assessee. Whether the Tax Deducted a Source has been correctly deducted or not is not the issue before us, but the fact remains that the receipts of the assessee are liable to TDS and TDS has been done. In these circumstances we are of the view that interest under section 234B is not leviable on the assessee as the receipts of the assessee under the contract is liable for TDS. In the circumstances respectfully following the decision of the Special Bench of this tribunal in the case of M/s. Motorola referred to supra the interest levied under section 234B stand deleted. In the circumstances the ground No. 6 of the assessees appeal stand partly allowed." 4. Thus, the taxability issue was held against the assessee and the levy of inte....