2015 (7) TMI 1153

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.... the assessee has raised the following issues, in its grounds of appeal: "i) "Ld. AO has erred in law and on facts in including an amount of Rs. 1,79,11,894/ - being service tax collected and paid for the purpose of Presumptive income u/ s 44B. ii) The Ld. AO has erred in law in levying interest u/ s 234B without following DRP's direction. iii) Ld. AO has erred in not following the directions of the DRP regarding levy of interest u/ s 234C. iv) The Ld. AO has erred in granting short credit of TDS amounting to Rs. 2,96,825/ - and short credit of advance tax of Rs. 1715/ -. v) The assessee has challenged the initiation of penalty proceedings u/ s 271(1)(c) of the penalty proceedings". 3. At the outset, the ld. Counsel for the assesse....

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.... Ld. Representatives of both the sides in support of their respective stands on the issue. It is observed that the Assessing Office in his impugned orders and Ld. DR at the time of hearing before us have heavily relied on the decis ion of Hon'ble Uttarakhand High Court in the cases of Halliburton Offshore Services Inc. (supra), Sedco Forex International Inc. (supra) and Trans Ocean Offshore Inc. (supra) in support of the Revenue's that the amount of service tax collected by the Assessee should be included in the gross receipts for the purpose of computing the total income as per the provisions of section 44B. It is observed that reliance on the said decisions was placed by the Revenue in the case of DIT Vs. Schiumberger Asia Service....

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....lying on the decision of the Hon'ble Bombay High Court in the case Sudarshan Chemical Industries 242 ITR 769 and that of Hon'ble Uttarakhand High Court in the case of DT Vs. Schlumberger ASIA Service Ltd. (supra) it was held by the Mumbai benches that the service tax, which is a statutory liability, would not involve any element of profits and since the service provider has collected the same from its customers on behalf of the Government, it cannot be included in the total receipts for determining the presumptive income of the assessee under section 44B. The decision of Mumbai bench in the case of Islamic Republic of Iran Shipping Lines (supra) has been subsequently followed by the Tribunal at least in three cases cited by the Ld. ....

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....if ground no. 1 is allowed. Accordingly, ground no. 2 is treated as infructuous. 7. Regarding levy of interest u/ s 234B, as raised in ground no.3, Ld. Counsel submitted that this issue has been decided in favour of the assessee by the Tribunal after following the decision of the Bombay High Court in the case of CIT vs. NGC Network Asia LLC, reported in [2009] 313 ITR 187. 8. On the other hand, Ld. DR relied upon the decision of Delhi High Court in the case of DIT International Taxation vs Alcatel Lucent USA in ITA No. 328, 329, 336, 337 and 340 of 2012 vide order dated 07.11.2013. 9. In rejoinder, the Ld. Counsel submitted that in a subsequent decision, Hon'ble Delhi High Court vide judgment and order dated 12.01.2015 in the case of DI....