2009 (7) TMI 3

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.... for the assessment year 1990-2000. 2. The questions of law involved in this appeal, are as under: 1. Whether, on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal has erred in law in holding that the entire alleged 'mobilization" revenue was chargeable to tax in India despite of the fact that it is alleged that major part of said activity was carried outside India? 2. Whether, on the facts and circumstances of the case, the Income Tax Appellate Tribunal has erred in law in impliedly taking the view that the provisions of Section 44BB would override Section 5 of the Income Tax Act, 1961? 3. Heard learned counsel for the parties. 4. Brief facts of the case giving rise to this appeal are that assess....

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....trary contained in sections 28 to 41 and sections 43 and 43A, in the case of an assessee [being a non-resident] engaged in the business of providing services or facilities in connection with, or supplying plant and machinery on hire used, or to be used, in the prospecting for, or extraction or production of, mineral oils, a sum equal to ten per cent of the aggregate of the amounts specified in sub-section (2) shall be deemed to be the profits and gains of such business chargeable to tax under the head "Profits and gains of business or profession": Provided that this sub-section shall apply in a case where the provisions of section 42 or section 44D or section 115A or section 293A apply for the purposes of computing profits or gains or an....

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....ic apparatus and equipment, used for the purposes of the said business; (ii) "mineral oil" includes petroleum and natural gas.] 6. The above quoted section makes a special provision for computing profits and gains by the non-resident assessees involved in the business of exploration etc. of mineral oils. It provides that such assessees would be liable to pay the income tax on ten per cent deemed profits, on the amount received by them. The amounts referred under sub-section (1) of Section 44BB of the Act are explained in sub-section (2), as quoted above, and the amounts of which ten per cent deemed profits is chargeable includes the sum paid or payable, whether in or outside India, to the assessee or to any person on his behalf on accoun....