TaxTMI 
TaxTMI 
2019 (1) TMI 457
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....tive income u/s 44B of the Income Tax Act, 1961 (for short 'the Act'). 2. Brief facts of the case are that the assessee a foreign company incorporated under the law of Korea has filed its return of income for the assessment year under consideration declaring the total income of Rs. 44,02,04,907/-. Since, the return was selected for scrutiny, the AO issued notice u/s 143 (2) and 142 (1) of the Act. In response thereof, Sr. Manager (Finance) attended the proceedings filed the details called for including tax residential certificates and other details related to earnings of income and operation of ships. The AO vide draft order proposed the inclusion of service tax in the amount specified in section 44B of the Act and also levied interest u....
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....ose of the case on the basis of material on record after hearing the departmental representative (DR). Accordingly, we asked the Ld. DR to argue on behalf of the revenue. 5. Before us, the Ld. departmental representative submitted that since the service tax collected by the assessee is liable to be included in the gross receipts for the purpose of taxation under the provisions of section 44B read with section 172 of the Act, the Ld. DRP has wrongly allowed the objection raised by the assessee and directed the AO to delete the addition made on account of service tax. 6. We have gone through the material on record in the light of the submissions made by the Ld. DR, We have also orders passed by the authorities below and the cases relied....
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.... in terms of section 44 BB (2) read with Section 44 BB (1). The service tax is no an amount paid for 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. ... ......the position has been made explicit by the CBDT itself in two of its circulars. In Circular No. 4/2008 dated 28th April 2008 it was nature of "Income" of the landlord. The landlord only acts as a collecting agency for Government for collection of service tax. Therefore, it has been decided that tax deduction at source) under sections 194-I of Income Tax Act would be required to be made on the amount of rent paid/payable without including the serv....
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....ed into the Government Treasury. Thus, the service tax collected by the assessee is not an amount paid/payable to or received/deemed to be received by it or on its behalf within the meaning of Section 44B of the Act. 2.3.4. The Assessing Officer in its remand report dated 31 August 2015 has argued for not to admit the additional evidences relying on Rule 46A of Income Tax Rules, 1962 dealing with production of additional evidence before the Commissioner of Income Tax (Appeals0. There is no such rule like Rule 46A in DRP Rules, 2009 and hence it cannot be applied to DRP proceedings. The additional evidences filed are to further the interests of justice and go to the root of the matter that of determination of fact whether service ta....