2018 (5) TMI 2139

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....nd 2008-09 and ITA No.3966/Del/2016 is an appeal filed by the revenue in the case of different assessee preferred against the order of the CIT (A), Noida pertaining A. Y. 2012-13. 2. Since in all these appeals common issues are involved they were heard together and are disposed of by this common order for the sake of convenience and gravity. 3. In assessee's appeal the common grievance reads as under :- Based on the facts and circumstances of the case, Schlumberger Asia Services Limited (hereinafter referred to as 'SASL' or the 'Appellant') respectfully craves leave to prefer an appeal against the order dated 30 May 2014 passed by the Commissioner of Income Tax (Appeals) - II [hereinafter referred to as the 'learned CIT(A)'] ....

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....9. 5. We find force in the contention of the counsel the relevant finding of the coordinate bench reads as under :- "4.5. Thus respectfully following the decision of Hon'ble Delhi High Court in the case of Linde AG Linde Engineering Division vs. DDI (supra) we hold that Consortium Agreement dated 04/05/03 between Slumberger Asia Services Ltd and Transocean Offshore Deep water Drilling Pvt. Ltd., do not constitute an AOP. 4.6 From the assessment order it is observed that Ld.AO has taxed the revenue under section 115 A at 10%. Section 1 ISA presupposes the rendering of technical services by assessee and now with the decision of Hon'ble Supreme Court in the case of ONGC Ltd (supra) the issue stands settled as on date, rega....

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.... "As relates to Ground No. 3 and 4, we find that now this issue stands covered by the Judgment of the Hon'ble Delhi High Court in the case of DIT vs. Mitchell Drilling International Pvt. Ltd. (supra) wherein the Hon'ble High Court, after analyzing various judgments of Hon'ble Uttarakhand High Court and the judgment in the case of Chowringhee Sales Bureau Ltd. vs. CIT (1973) 87 ITR 542, observed and held as under :- "9. Section 44BB begins with a non obstante clause that excludes the application of Sections 28 to 41 and Sections 43 and 43A to assessments under Section 44 BB. It introduces the concept of presumptive income and states that 10% credit of the amounts paid or payable or deemed to be received by the Assessee on account....

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....ccount'. The question considered by the Supreme Court was: 'Whether on the facts and in the circumstances of the case the sum of Rs. 32,986 had been validly excluded from the assessee's business income for the relevant assessment year?". However, there the Assessee did not deposit the amount collected by it as sales tax in the State exchequer since it took the stand that the statutory provision creating that liability upon it was not valid. In the circumstances, the Supreme Court held that the sales tax collected, and not deposited with the treasury, would form part of the Assessee's trading receipt. The decision in George Oakes (P) Ltd. (supra) was concerned with the constitutional validity of the Madras Gener....

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....se duty and sales tax were includible in the 'total turnover' which was the denominator in the formula contained in Section 80 BBC (3) as it stood in the material time?" The Supreme Court considered its earlier decision in Chowringhee Sales Bureau (supra) and answered the question in the negative. The Supreme Court noted that for the purposes of computing the 'total turnover' for the purpose of Section 80 BBC (3) brokerage, commission, lid not form part of the business profits because they did not involve any element of export turnover. It was observed: " Just as commission received by an assessee is taxable to exports and yet it cannot form part of the turnover' excise duty and sales-tax also cannot form part of the &#3....

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.... 17. The Court accordingly holds that for the purposes of computing the 'presumptive income' of the assessee for the purposes of Section 44 BB of the Act, the service tax collected by the Assessee on the amount paid is for rendering services is not to be included in the gross receipts in terms of Section 44B (2) read with Section 44 BB (1). The service tax is not and amount paid or payable, or received or deemed to be received by the Assessee for the services rendered by it. The only collecting the service tax for passing it on to the Government. 18. The Court further notes that the position has been made explicit by the CBDT itselfin two of its circulars. In Circular No. 4/2008 dated 28th April 2008 it was clarified that ....