DDIT, DEHRADUN vs. CGG MARINE RESOURCES NORGE, GURGAON

Whether on the facts and circumstances of the case, the Hon'ble DRP has erred in directing the AO to bring to tax only the proportionate amount out of the revenues for charter hire of the period December 2008 to February 2009 on the ground that the vessel stayed in Indian waters for a period of only 21 days each for the months of December, 2008 and February. 2009. 13.1 The Ilon'ble DRP has erred in not appreciating the findings of the AO in the draft assessment order that (a) in terms of the contract, the charges were payable at a fixed rate per month, (b) the assessee itself had in the first instance raised invoices for the Months of December, 2008 to February, 2009 for the whole months on a monthly rent basis, and (c) no separate amount for mobilization and demobilization of the vessels had been charged suggesting clearly that the mob/demob charges were included in the monthly hire charges.”

The ground No. 1 to 6 of the appeal of the revenue is against the applicability of provisions of section 44 BB of the income tax act on the second leg contract. The brief facts of the case are that the assessee is engaged in the business of providing equipment services and facilities in connection with prospecting for or production of mineral oils. It is a non-resident company. During the year, it entered into a contract for providing vessels on hire to be used for the purpose of undertaking Seismic data acquisition and onboard processing in purpose with contract between CGG Marine and ONGC. The assessee has earned gross revenue of Rs. 38358924/- from hire of the vessel and offered it for taxation applying the provisions of section 44BB of the Income Tax Act. consequently, it filed its return of income declaring income of Rs. 3835892/- on 11.10.2010. Subsequently, the matter was referred to ld Transfer Pricing Officer as it has entered into an international transaction. The ld Assessing Officer in draft Page 4 of 15 assessment order dated 13.03.2013 rejected the claim of the assessee u/s 44BB of the Act since the contract of the company with a company which was not engaged in production sharing contract and therefore, it was falling in second leg of contract. The ld Assessing Officer then held that the assessee has also offered only proportionate revenue in respect of hire charges for the month of February and December out of total hire charges. Subsequently, the ld Assessing Officer after incorporating the order of the ld Transfer Pricing Officer dated 29.01.2013 framed the draft order holding that gross revenue of Rs. 38358924/- is chargeable to tax in India u/s 9(1) (i) of the Income Tax Act. Hence, income of the assessee is computed @25% of Rs. 38358924/- amounting to Rs. 9589730/-. The assessee-preferred objection before the Dispute Resolution Panel and who by direction dated 17.12.2013 has held that income of the assessee shall be chargeable to tax u/s 44BB of the Act. With respect to the income of the assessee from December 2008 to February 2009 it was further held that ld Assessing Officer may verify the same and bring to tax proportionate amount accruing in India u/s 44BB of the Act. Consequently, on 16.01.2014 assessment u/s 143(3) was framed at total income of Rs. 3835890/-. Against the direction of the DRP the revenue is in appeal before us. The main contention of the revenue is that income of the assessee is chargeable to tax as royalty and further the direction of the ld DRP to the Assessing Officer to being to tax only proportionate amount out of revenue for charter hire from December 2008 to February 2009 on the ground that vessel remained in India waters for only 21 days in December 2008 and February 2009.

The ld Departmental Representative relied on the order of the ld Assessing Officer and submitted that benefit of section 44BB is not available on second leg contracts.

Ld Authorised Representative submitted that on the second leg contract benefit is available of section 44BB of the Act. He referred to the decision of the coordinate bench in case of Louis Dreyfus Armateures SAS Vs. ADIT and submitted that issue is squarely covred in favourt of the assessee.

We have carefully considered the rival contentions. Whether the provisions of section 44 BB applies to the 2nd leg contracts in case of a non-resident who is engaged in the business of providing services or facilities in connection with or supplying plant and machinery hire or to be used in the prospecting for or extraction or production of mineral oils is now covered in favour of the assessee by the various tribunal decisions. The coordinate bench in Louis Drefus Page 5 of 15 Armateures SAS V ADIT in[2015] 54 taxmann.com 366 (Delhi - Trib.)has held as under:- “60. A reading of the aforesaid judicial precedence clarify that sec. 44BB does not distinguish between the main contractor or a sub-contractor as has been interpreted by the AO and the DRP. The conclusions of the AO and the DRP are erroneous on account of the reason that the provision clearly envisages the non-resident assessee to be engaged in the business of supplying plant and machinery on hire. The only condition imposed, so to say, is that such plant and machinery has to be used or should be used for the purposes of prospecting for, or extraction or production of mineral oils. The language in section 44BB in our view is clear so also the legislative intention. It is a trite law that has already held by the Hon'ble Supreme Court in B. Parmannand v. Mohan Koikal [2011] 4 SCC 266 that "the language employed in a statute is the determinative factor of the legislative intend. It is well settled principle of law that the Court cannot read anything into a statutory provision which is plan and unambiguous". If the legislatures intention as contended by the Revenue was to restrict the benefit of sec. 44BB only to the main contractor or ONGC, then the words after 'the assessee engaged in the business of 'supplying plant and machinery on hire' or 'providing services or facilities' ought to have been omitted. Hence, where the provision does not create any discrimination between the person who actually does the activity of prospecting for or extraction or production, and the person who supplies the plants and machinery, the narrow interpretation of the provision is thus not permitted. The basic condition to be satisfied in the said provision is that the plant or machinery supplied or lented on hire by the assessee, non-resident should be used in the prospecting for or extraction or production of minerals oils or where equipment has been supplied, such equipment should have been used for the purposes of prospecting for or extraction or production of mineral oils. Having regard to the above we are of the considered opinion that the fetter assumed by authorities below while interpreting the provisions of Section 44BB of the Act are manifestly absent and there is nothing in the said provision so as to disentitle a sub-contractor from invoking the said provision. Accordingly we do not find any fault in the claim of the assessee that revenues received under the charter agreements with CGG for providing two seismic survey vessels are in consideration with prospecting for, extractions or production of mineral oils and therefore taxable u/s 44BB of the Act.

It is also a settled law that the court cannot add words to statute or read words into it which are not there vide UOI v. Delhi Nandan Aggarwal [1962] 1 SCC 323. The similar view has been reiterated recently in CIT v. Tara Agenence [2007] 292 ITR 444/162 Taxman 337 (SC). This being so we are of the view there is no restriction as suggested by the ld DR cannot be read into section 44BB, to exclude the assessee from it.

Now when we look into the facts of the case in the light of the discussion above we find that assessee is in the business of supplying plant/ship on hire which is being used for prospecting for or extraction or production of mineral oils. Therefore, on the whole, it appears that the transaction falls under the second limb of sub-section (1) of sec. 44BB. The intention of the Parliament to exclude construction, assembly and mining or like project from the purview of fees for technical services is to draw a line of distinction between business activities and mere rendering of services. On no stretch of imagination can we hold that the nature of receipts on account of provision of supply of vessels on hire basis can have character of fees for technical services within the meaning of Expln. 2 to s. 9(1)(vii). The Page 6 of 15 services required by CGG (Hirer) are rendered by the assessee by lending the vessels on hire cannot bear the character of fees for technical services. The assessee's income no doubt is derived from letting out the plant/ship which is used for prospecting for or extraction or production of mineral oil, therefore, the second limb of sec. 44BB is clearly attracted in the instant case. The non-resident assessee in our opinion satisfies the requirement stipulated by sec. 44BB and thus, qualifies its income earned thus to be treated and taxed as per the special provision and not otherwise as contended by the Revenue. We could not find any restriction or fetter in section 44BB as contended by the Revenue to disqualify the assessee in applying the said section to compute its tax. We cannot read what is not said in sec. 44BB and add words in sec. 44BB to bring in a restricted interpretation as contended by the Revenue to the effect that only direct contract with the oil producing company would only qualify. It is nobody's case that assessee is not a non-resident nor it has not given on hire its ship for the purpose of prospecting for or extracting or production of mineral oils. So the assessee falls in the special provision meant for computing profits and gain in connection with the business of exploration etc. of mineral oils; and its income has to be computed as per the said provision unless and otherwise the assessee claims lower profits and gains as stipulated under sub-section (3) of section 44BB. The amounts which the assessee offered and computed u/s 44BB admittedly is on account of the supply of plant and machinery on hire used, or to be used, in the prospecting for, or extraction or production of, mineral oils in India; and so, it satisfies the requirement of sec. 44BB, therefore, the assessee's contention needs to be upheld. Any other interpretation as suggested by the Revenue will defeat the special law enacted for the purpose of computing profits and gains in connection with the business of exploration, etc., of mineral oils. Therefore, we hold that the Revenue earned by the assessee from M/s CGG for letting out its two seismic survey vessels are in consideration for being deployed for prospecting for, extraction or production of mineral oils and, therefore, taxable u/s 44BB of the Act. And we take note of the fact that in A.Y. 2004- 05, the AO accepted the claim of the assessee that the income need to be taxed u/s 44BB and in A.Y. 2006-07 the DRP also directed that the income of the assessee to be taxed as per sec. 44BB of the Act. No changes in facts or circumstances were pointed out by the ld. DRP in the instant assessment year. So as per the Hon'ble Supreme Court's order in Radhasoami Satsang (supra) and of the Hon'ble Delhi High Court reported in Rajeev Grinding Mills (supra) on the principle of consistency too no deviation was warranted. Therefore, the order impugned is set aside and the appeal of the assessee is allowed.”

Therefore respectfully following the decision of the coordinate bench we hold that the assessee is eligible for preferential treatment as provided under section 44 BB of the income tax act on its gross revenues of Rs. 3 835 8924/From Hire of the Vessels despite it being earned from 2nd leg contracts. In the result ground No. 1 to 6 of the appeal of the revenue is dismissed 8. ground No. 7 of the appeal of the revenue is against the direction of the dispute resolution panel in ignoring the distinct scheme of taxation of fees for technical services and royalty disregarding the insertion of provision in section 44 BB/44 DA/hundred and 115A and the rational behind the introduction of the said clarification provision in the finance bill 2010 in holding that the income of the Page 7 of 15 assessee company was covered under the provisions of section 44 BB of the income tax act.

Parties before us agreed that the above issue is now covered in favour of the assessee by the decision of the Hon’ble Uttarakhand High Court in case of2011] 12 taxmann.com 493 (Uttarakhand) B.J. Services Company Middle East Ltd. v. Deputy Director of Income-tax (International Taxation), Dehradun*wherein it has been held as under:- “Reverting to the merits of the case, the controversy revolves upon the provisions of section 44BB, 44D, section 9, section 115A and section 44DA of the Act. During the period in question, the petitioner had received revenues from Reliance Industries Ltd., Pride Foramer SAS, BG Exploration & Production India Ltd, ONGC, Niko Resources Ltd, etc. on account of providing services and facilities in connection with the exploration and extraction of and production of mineral oil. The petitioner offered the revenues received from these Companies for taxation under section 44BB of the Act. The Assessing Officer, after considering the material placed before it and considering other factors and after due verification and enquiry, passed an assessment order, dated 29-11-2005 under section 143(3) of the Act. Section 44BB of the Act provides that where an assessee, being a non- resident, is engaged in the business of providing services or facilities in connection with, or supplying plant & machinery or hire used, or to be used, in prospecting for, or extraction or production of, mineral oils, in which case, 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". The proviso to section 44BB further clarifies that the sub-section (1) of section 44BB would not apply 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 any other income referred to in these sections. Section 44D is a special provision for computing income by way of royalties and fees for technical services in the case of foreign companies. It starts with a non-obstante clause "notwithstanding anything to the contrary contained in sections 28 to 44C". section 44D (b) of the Act provides that in the case of an assessee, being a foreign company, no direction in respect of any expenditure or allowance shall be allowed under any of the said sections in computing the income by way of royalty or fees for technical services received. The Explanation to section 44D provides that "fees for technical services" shall have the same meaning as in Explanation 2 to clause (vii) of sub-section (1) of section 9. Section 9(1)(vii) of the Act provides that income by way of fees for technical services payable by a Govt. or a person shall be deemed to accrue or arise in India. Explanation 2 provides that "fees for technical services" means any consideration for the rendering of any managerial, technical or consultancy services, including the provision of services of technical or other personnel but does not include consideration for any construction, assembly, mining or like project Page 8 of 15 undertaken by the recipient or consideration which would be income of the recipient chargeable under the head "salaries". Section 115A(1)(b)(B) of the Act provides that where the total income of a foreign company includes any income by way of royalty or fees for technical services, the amount of income tax calculated on the income by way of fees for technical services, would be at the rate of thirty per cent if such fees is received in pursuance of an agreement made on or before 31-5-1997 and 20% where such fees for technical services are received in pursuance of an agreement made after 31-5-1997. Under the existing provisions contained in section 44BB, 44D, section 115A and under Explanation II of section 9(1)(vii) of the Act, it was open to the Assessing Officer to tax the petitioner either under section 44BB or 44D or under section 9(1)(vii) on the basis of the material produced before him. Relevant and primary facts were placed before the Assessing Officer. The Assessing Officer applied its mind to the facts of each case. The Assessing Officer considered the documents filed by the assessee and after due verification and enquiry, came to the conclusion that the assessee was liable to be taxed under section 44BB which was accepted by the assessee. A perusal of the assessment order of the petitioner in Writ Petition No. 2197 of 2010, indicates that the Assessing Officer has considered 29 contracts / agreement entered by the petitioner with others relating to providing services and facilities in connection with the exploration & production of mineral oils and the revenues received by the assessee. The Assessing Officer rejected the stand taken by the revenue authorities and held that the income of the petitioner was chargeable under section 44BB of the Act. Once an order is passed under section 143(3) of the Act, a presumption is raised that such an order has been passed on an application of mind. By the Finance Act, 2003, section 44DA was inserted in the Act w.e.f. 1- 4-2004. This is another special provision for computing income under the head "profits and gains of business or profession" by way of royalty or fees for technical services received by a non-resident or foreign company which carries on a business in India through a permanent establishment. The Explanation to this section provided that "fees for technical services" shall have the same meaning as provided in Explanation 2 to clause (vii) of sub-section (1) of section 9. Section 44DA was amended w.e.f. 1-4-2011 by Finance Act, 2010, and a proviso was added indicating that the provisions of section 44BB shall not apply in respect of income referred to in this section. After the insertion of section 44DA in the Act, the combined effect of the provisions of sections 44BB, 44DA, 115A and Explanation 2 of section 9(1)(vii) of the Act as per the stand of the revenue is that if the income of a non-resident is in the nature of a fee for technical services, it would be taxable under the provisions of either section 44DA or section 115A read with Explanation 2 to section 9(1)(vii) irrespective of the business to which it relates and that section 44BB would apply only in a case where consideration was for services and other facilities relating to exploration activity which are not in the nature of technical services. Inspite of the insertion of section 44DA in the Act, a grey area remained regarding the scope of section 44BB and section 44DA, namely, whether the fee for technical services relating to the exploration sector would be covered under section 44BB of the Act. In order to remove the grey area, section 44DA and 44BB was amended w.e.f. 1-4-2011 so as to exclude the applicability of section 44BB to the income which is covered under Page 9 of 15 section 44DA. The aforesaid was provided in the Explanatory Note to the Finance Bill, 2010, which was ultimately amended in the relevant section 44BB and 44DA w.e.f. 1-4-2011. In the light of the aforesaid, the contention of the revenue is, that the services contemplated under section 44BB are services other than those coming within the purview of Explanation 2 to section 9(1)(vii) of the Act. The services extended by the petitioner falls under Explanation 2. Consequently, the income by way of fees for technical services chargeable under section 9(1)(vii) has to be computed under section 44DA of the Act. To recapitulate, the reasons given for initiating proceeding under section 148 of the Act is : (a)that the services rendered are technical in nature and is liable to be taxed as a fee for technical services in view of the decision of the Uttarakhand High Court in the Case of CIT v. O.N.G.C. (Foramer France) [2008] 299 ITR 438 , and (b)Explanatory Note to the Finance Bill indicating that the combined effect of the provision of sections 44BB, 44DA and 115A is that the income of a non-resident is in the nature of fee for technical services, and that it is taxable under the provision of section 44DA or section 115A irrespective of the business to which it relates. In view of the decision of this Court in 259 ITR 33 and that of the Gujarat High Court in 312 ITR 70, this Court is of the view that subsequent pronouncement by a Court or a Superior Court does not entitle the Assessing Officer to reopen the assessment proceedings on the ground that the Assessing Officer has reasons to believe that income has escaped assessment or that the assessee has not fully and truly disclosed all the material facts. The claim of the assessee could not be termed to be either lacking in material particulars nor could it be termed to be untrue. The assessee has disclosed all material facts and no false facts have been stated. The reasons recorded shows that the Assessing Officer has reasons to believe that income has escaped assessment on the basis of a subsequent decision rendered by this Court. In the opinion of the Court, this reasoning amounts to a change of opinion by the Assessing Officer. Further, there is no failure on the part of the assessee in disclosing fully and truly all material facts. In so far as the second reason is concerned, the Court finds that the primary facts had been disclosed by the petitioner, namely, the agreement/contracts were placed before the Assessing Officer. The Court further finds that the Assessing Officer had discussed the contracts in the assessment order passed under section 143(3) of the Act. The Court finds that the Assessing Officer had applied its mind, made necessary enquiry and upon verification of facts rejected the stand of the revenue and concluded that the income was liable to be charged under section 44BB of the Act and not under section 44D read with Explanation 2 of section 9(1)(vii) of the Act. The Assessing Officer was of the opinion that the services provided by the petitioner falls under section 44BB of the Act. The Full Bench of the Delhi High Court in the case of Kelvinator (supra) has held that where as assessment order has been passed under section 143 (3) of the Act, a presumption can be drawn that such an order had been passed on due application of mind. The Supreme Court in Calcutta Discount’s case (supra) has held that primary facts has to be disclosed by the assessee and thereafter, it is for the Assessing Officer to draw inferences from the facts and apply the Page 10 of 15 law and determine the liability. Once the Assessing Officer has framed an assessment on the facts and documents placed before it, the Assessing Officer, could not, at another point of time, by forming another opinion on the primary facts, arrive at a conclusion that he had committed an error in computing the taxable income of the assessee and reopen the assessment proceedings. This view of the Court is fortified by a decision of the Delhi High Court in Jindal Photo Films Ltd. v. Dy. CIT [1998] 234 ITR 170 /[1999] 105 Taxman 386 . As stated earlier, the combined effect of the provisions of sections 44BB, 44DA and 115A of the Act will not have a bearing to the cases in hand inasmuch as the Explanatory Note to the Finance Bill, 2010 clearly indicates that the amendments proposed in section 44BB and 44DA of the Act would take effect from 1st April, 2011 and would apply in relation to the assessment year 2011-12 and subsequent years. The amendment is prospective in nature and would not apply to the cases in hand which is of the earlier assessment years. Under the existing provisions contained in section 44BB, 44D, section 115A and Explanation II of section 9(1)(vii) of the Act, it was open to the Assessing Officer to tax the petitioner either under section 44BB or 44D or under section 9(1)(vii ) of the Act on the basis of the material produced before him. The primary facts were placed by the assessee before the Assessing Officer, who after due enquiry and verification, applied its mind to the facts of each case and came to the conclusion that the assessee was liable to be taxed under section 44BB of the Act. The Explanatory Note to the Finance Bill has removed the doubts, which had been raised regarding the scope of section 44BB vis-à-vis section 44DA has only been made prospectively and cannot be used or applied for reopening the case under sections 147 and 148 of the Act. In any case, the explanatory note does not mean that there was failure on the part of the assessee as envisaged by the provisions of section 147 or in any manner the assessee suppressed the material facts or failed to disclose fully and truly all material facts necessary for the assessment. In view of the aforesaid, the court is satisfied that the petitioner has made out a case for a writ of certiorari and accordingly the notice issued by the respondent under sections 147 and 148 of the Act are quashed. All proceeding initiated by the Assessing Officer pursuant to the said notice and orders passed therein are quashed. The writ petitions are allowed. In the circumstances of the case, parties shall bear their own cost.”

Ground No. 8-11 of the appeal of the revenue against Learned DRP erred in holding that the provisions of section 44 BB of the income tax act are more special provisions which shall prevail over the provisions of section 9 (1) (6) read with section 44DA and 15A of the income tax act not appreciating the fact that the both set provisions of specially nature which operating their own clearly defines spares and therefore once a particular receipt income tax on the character of royalty or fees for technical services it cannot be considered for treatment under section 44 double B of the income tax act. The revenue is Page 11 of 15 pressed into argument 012] 18 taxmann.com 13 (Delhi) CGG Veritas Services, SA v. Additional Director of Income tax, International Taxation, Dehradun. It was further contended that the provisions of section 44 BB does not apply in case of payment made by wonder non-resident to another non-resident roof lately Ld. T.

The Ld. authorized representative relied upon the orders of the Learned dispute resolution panel and submitted that that after the decision of the Hon’ble Supreme Court in case of ONGC all these dispute does not survive.

We have carefully considered the rival contentions . We are of the opinion that after the decision of the Hon’ble Supreme Court in case of ONGC vs. CIT 59 Taxmann.com 1 which has negated the applicability of provisions of section 44 DA which is special provision for computing income by way of royalty etc in the case of a foreign company and held that the special provision for computing profits and gains in connection with the business of expiration of mineral oil u/s 44BB shall be applicable in case of such contracts. Therefore we reject the contention of the revenue on that account. Further we also reject the contention of the revenue that the payment made by one non-resident or another non- resident does not fall under the provisions of section 44BB of the income tax act, as we do not find any such classification in the provisions of that section with respect to the recipient and the payer . In the result ground No. 8 to 11 of the appeal of the revenue are dismissed 13. Ground No. 12 of the appeal of the revenue was stated by the Ld. departmental representative that that it is similar to the ground No. 7 of the appeal . We have already disposed of the ground No. 7 of the appeal of the revenue which was dismissed and therefore ground No. 12 of the appeal of the revenue is also dismissed.

Ground No. 13 of the appeal of the revenue is that the Hon’ble dispute resolution panel has erred in directing the assessing officer to bring to tax only the proportionate amount of the revenue for charter hire of the period December 2008 to February 2009 on the ground that the vessel stayed in Indian waters for a period of only 21 days each for the month of December 2008 and February 2009. The contention of the revenue was also emanating from the fact that in the draft assessment order the terms of the contract the charges were payable at a fixed rate per month and assessee itself and in the first instance raise invoices for the month of December 2008 to February 2009 for the whole amount on a monthly rent basis and there is no separate amount for mobilization and demobilization of the vessel been charged suggesting clearly that the mobilization and demobilization charges were included in the monthly Page 12 of 15 charges. With respect to the income chargeable to tax it was submitted that during the previous year 2008-09 the assessee had entered into a global bareboat charter agreement with CGGVs for hire of vessel named CGG Symphony (Symphony). During the tenure of the said agreement, the vessel symphony was used in India for the period from December 10 2008 to February 21, 2009. In this regard the following documents indicating the entry and exit of vessel symphony from the part at Kakinada, India were also provided that Bill of entry for home consumption dated December 22, 2008 indicating the entry and development of the seismic survey vessel symphony in India waters on December 10 2008 and not any time prior to above. Accordingly, though the vessel symphony was mobilized from Singapore in November 2008, it entered into the territorial waters of India as on December 10, 2008 only. Port clearance certificate dated February 21, 2009 issued by the Govt. of India indicating that the vessel was deported from Kakinada Prot on February 21, 2009. Further, it was submitted that the agreement between CGG MR and CGG’S is a global charter agreement for use of the vessel symphony for CGGVS’ operations worldwide. Therefore, such portion of income from hire of vessel as is attributable to the India operations shall accrue or arise in India. Accordingly, CGG has offered to tax only such portion of the hire charges as relate to the period of deployment of the vessel in India. For the month of December 2008 and February 2009, the vessel was deployed in India for a period of 21 days each month and accordingly, the invoice amount has been proportioned on the basis of the number of days the vessel worked in connection with the project in India and such proportionate amount has been offered to tax by CGG in India.

Ld. dispute resolution panel on the basis of the submission of the assessee held that the ld assessing officer is directed to verify the various documents submitted by assessee and to bring to tax the proportionate amount accruing or arise in India or deemed to accrue or arising in India during the year under consideration in terms of section 5 read with section 9 and section 44 BB of the income tax act. The revenue is aggrieved by the direction of the Learned dispute resolution panel which stated that Ld. AO is directed to bring to tax the proportionate amount only and not the full amount.

Ld. departmental representative relied upon the order of the Learned-assessing officer and stated that the full amount is required to be taxed and the direction of the Learned dispute resolution panel is devoid of any merit.

The Ld. authorized representative of the assessee submitted that that in the month of December the vessel was present in India for 21 days and in the month of February it was also there in India only for 21 days and therefore the Page 13 of 15 gross receipt cannot be taxed and only the proportionate amount pertaining to 21 days in these 2 months is required to be taxed. It was submitted that the vessel was operated by CGG services for rendering seismic data acquisition and processing services and not by the respondent. The respondents role is limited to providing the vessel hire without any manpower services. It was further submitted that the maintenance and operation of the vessel under the agreement is on account of CGG services and is not to be borne by the respondent. Therefore it was submitted that the respondent did not carry out any work in India in relation to the operation or maintenance of the vessel. It was further submitted that mobilization and demobilization of the vessel was not a part of the agreement between the assessee and the CGG services and no such charges were received by the respondent therefore there cannot be any question about the taxability of those sums. Ld. authorized representative relied upon the order of the authority for advance ruling in the case of seabird exploration FZ LLC versus DDIT 326 ITR 558 wherein it was held that in case where the agreement for hire of vessel is concluded outside India and delivery of vessel also takes place outside India, neither the origin of the income, nor the activity giving rise to the income can be said to be located in India. Therefore it was submitted that is the income there from was not taxable in India in the instant case also the agreement was executed outside India and the vessel was also delivered by the respondent outside India and hence income of the resplendent is not at all chargeable to tax in India.

We have carefully considered the rival contentions. The only dispute arising is that the Learned dispute resolution panel has directed the assessing officer to verify and to bring to tax the proportionate amount accruing or arising in India or deemed to be accruing or arising in India during the year under consideration in terms of section 5 read with section 9 and section 44 BB of the income tax act. On perusal of the order of the Learned dispute resolution panel we could not find any reasoning given by the dispute resolution panel for directing the Ld. Assessing officer to tax the proportionate amount of the total income receivable by the assessee. The order of the Learned dispute resolution panel is nonspeaking and without specifying reasons for the decision. The Ld. DRP also did not consider the fact that assessee itself has raised invoice for the full amount subsequently offering only part of the revenue for December and February on proportionate basis. The provisions of section 44BB of the act are as under:- “44BB. (1) Notwithstanding anything to the contrary contained in sections 28 to 41 and sections 43 and 43A, in the case of an assessee 19[, being a non- resident,] engaged in the business of providing services or facilities in Page 14 of 15 connection with, or supplying plant and machinery on hire used, or to be used, in the prospecting for, or extraction or production20 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 not apply in a case where the provisions of section 42 or section 44D or 21[section 44DA or] section 115A or section 293A apply for the purposes of computing profits or gains or any other income referred to in those sections. (2) The amounts referred to in sub-section (1) shall be the following, namely :— the amount paid or payable21a (whether (a) in or out of India) to the assessee or to any person on his behalf on account of the provision of services and facilities in connection with, or supply of plant and machinery on hire used, or to be used, in the prospecting for, or extraction or production of, mineral oils in India; and (b) the amount received or deemed to be received21b in India by or on behalf of the assessee on account of the provision of services and facilities in connection with, or supply of plant and machinery on hire used, or to be used, in the prospecting for, or extraction or production of, mineral oils outside India. 22[(3) Notwithstanding anything contained in sub-section (1), an assessee may claim lower profits and gains than the profits and gains specified in that sub- section, if he keeps and maintains such books of account and other documents as required under sub-section (2) of section 44AA and gets his accounts audited and furnishes a report of such audit as required under section 44AB, and thereupon the Assessing Officer shall proceed to make an assessment of the total income or loss of the assessee under sub-section (3) of section 143 and determine the sum payable by, or refundable to, the assessee.] Explanation.—For the purposes of this section,— (i) "plant" includes ships, aircraft, vehicles, drilling units, scientific apparatus and equipment, used for the purposes of the said business; (ii) "mineral oil" includes petroleum and natural gas.]