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Income Tax Appellate Tribunal, “E” BENCH, MUMBAI
Before: SHRI D. KARUNAKARA RAO & SHRI C.N. PRASADShri M.P. Lohia & Nikhil Tiwari Shri Sanjay Bahadur, CIT-DR
सुनवाई की तायीख / Date of Hearing : 10.11.2016 घोषणा की तायीख /Date of Pronouncement : 18.01.2017 आदेश / O R D E R PER D. KARUNAKARA RAO, AM:
There are two appeals under consideration and they are cross appeals involving the assessment year 2010-2011. Since, the issues raised in these appeals are inter-connected, therefore, for the sake of convenience, they are clubbed, heard combinedly and disposed off in this consolidated order. Appeal wise adjudication is given in the following paras of this order.
I. 2. This appeal filed by the assessee on 24.2.2014 is against order of the AO / directions of the DRP-II, Mumbai. In this appeal, assessee raised the following grounds which read as under:-
“1. On the facts and in the circumstances of the case and in law, the DRP / AO erred in including the amount of service tax of Rs. 74,15,819/- deposited by BG Exploration and Production India Ltd (BGEPIL) under the reverse charge mechanism, in the computation of gross receipts for the purpose of section 44BB of the Act.
On the facts and in the circumstances of the case and in law, the DRP / AO erred in not appreciating that the service tax amount was neither invoiced nor received by the appellant and thus ought not to have been included in computation of gross receipts.
3. On the facts and in the circumstances of the case and in law, the DRP / AO erred in including the amount of reimbursements of Rs. 23,97,382/- in the computation of gross receipts for the purpose of section 44AB of the Act.
On the facts and in the circumstances of the case and in law, the AO erred in disregarding the directions of the DRP and charging tax at the rate of 10% on the entire amount of gross receipts instead of charging tax at applicable tax rate ie 42.23% on 10% of gross receipts viz 4.223% of gross receipts as envisaged by section 44BB of the Act.
On the facts and in the circumstances of the case and in law, the AO erred in disregarding the directions of the DRP by not granting credit for tax deducted at source to the extent of Rs. 77,32,764/- as claimed by the appellant.
On the facts and in the circumstances of the case and in law, the AO erred in disregarding the directions of the DRP by levying interest under section 234B of the Act for non-payment of advance tax.”
Before us, referring to Grounds no. 4 and 5 of the above grounds of appeal
, Ld Counsel for the assessee submitted that the issues raised in these two grounds are subject matter of proceedings before the AO u/s 154 of the Act. Despite the directions of the DRP, AO failed to give effect to the same. Therefore, assessee seeks direction from the Bench to the AO for giving effect to the said directions by the DRP in the already long pending application u/s 154 of the Act before the AO.
4. After hearing both the parties on this issue, we find, the DRP has issued directions in favour of the assessee. The directions of the DRP should be complied with by the AO as they are binding on him. Pending proceedings u/s 154 of the Act should also be disposed of in a time bound manner. Accordingly we order the AO. Thus, Grounds no.4 and 5 raised by the assessee are allowed in principle.
5. Regarding Ground no.6, relating to the levy of penalty of interest u/s 234B of the Act when the entire income of the assessee is subjected to TDS provisions thereby the assessee is under obligation to make payment of advance tax, Ld Counsel for the assessee submitted that the DRP in paras 16 and 17 directed the AO to comply with the judgment of the Hon‟ble jurisdictional High Court in the case of NGC Network Asia LLC (313 ITR 187). After hearing both the parties, we find, the direction of the DRP is not followed by the AO and it is unfair to the assessee. Therefore, we are of the opinion, the AO should comply with the directions of the DRP and grant relief in this regard by allowing interest u/s 234B of the Act. Thus, Ground no.6 raised by the assessee is allowed.
6. The effective grounds for detailed examined and adjudication are Grounds no.1, 2 and 3 of the appeal. Grounds no.1 and 2 relating to the single issue ie requirement of including Service Tax collected by the service recipient under the scheme of „reverse charge mechanism‟ within the meaning of section 44BB of the Act. It is the claim of the assessee, as per the provisions of section 44BB of the Act in the case of non-recipient of the services, the assessee in the present case, the recipient, BGEPIL, is under obligation to remit the Service Tax to the Government. Therefore, this segment of Service Tax relatable to the services rendered by the assessee will not form part of the gross receipts for the purpose of applying the flat rate of 10%. Bringing our attention to the judgment of the Hon‟ble Delhi High Court judgment and many other decisions of the Tribunal ie (i) Boskalis International – Dredging International CV (ITA No. 5348 & 4938/Mum/2014) dated 14.12.2015; (ii) Helix Energy Solutions Group Inc. (ITA No.1236 & 3068/Mum/2013), dated 29.6.2016; (iii) Mitchell Drilling International Pty Ltd (ITA No. 403/2013 & (Delhi High Court) etc., Ld Counsel for the assessee demonstrated in principle, the Service Tax component is outside the scope of section 44BB of the Act as the Service Tax is the amount collected generally by the service provider and remit the same to the Government. There is no income angle in such collection of Service Tax. Therefore, applying the rate of 10% on such Service Tax is not legally sustainable. Bringing our attention to the Board Circular No. 4/2008, dated 28.4.2008, Ld Counsel for the assessee demonstrated that the CBDT does not mandate the AO‟s to tax 10% on the Service Tax collected by the assessee in their hands. Referring to the Tribunal‟s decisions in the case of Boskalis International – Dredging International CV (supra) (page 60 of the paper book) and the contents of para 8 of the said Tribunal‟s order, Ld Counsel for the assessee demonstrated that the Service Tax collected will not qualify as the income of the assessee and therefore, the same should not be included in the gross receipts while computing the presumptive income under section 44BB of the Act. For the sake of completeness of this order, the said para 8 of the Tribunal‟s order is extracted as under:- “8. We have considered the rival contentions. The issue under consideration is squarely covered by the decision of Hon‟ble Bombay High Court in the case of Sudershan Chemicals Industries Limited 245 ITR 769, wherein it was held that services tax is not to be included in the gross receipts while computing assessee‟s income. The decision of the Tribunal as relied on by the CIT (A) and AO are distinguishable on facts. In the case of Siem Offshore Inc. Reported at 337 ITR 207, relied on by the lower authorities, we found that the services tax formed a part of the agreed contract price, whereas in the instant case before us services tax was specifically excluded from the contract price. As per the agreement entered by BKI-DI CV with the AMC, the contract price of the contract excluded the service tax and the responsibility of payment of service tax to the Government was of AMC and not of the assessee. Furthermore, Circular No. 4/2008 issued by the CBDT clarified that service tax collected is not in the nature of income in the hands of service provider and that the service provider is a collecting agent for service tax collection. The said principle has been extended to all tax deducted at source under section XVII-B vide Circular No.1/2014 issued by the CBDT. The aforesaid circulars clearly indicate that withholding tax is not required on the service tax component of the invoice since tax is not income of the recipient. Accordingly, drawing a similar analogy, the service tax collected by BKI-DI CV would also not qualify as its income and hence should not be included in its gross receipts while computing presumptive income under section 44BB of the Act.”
Further, bringing our attention to the judgment of the Hon‟ble Delhi High 7. Court judgment in the case of Mitchell Drilling International Pty Ltd (supra), Ld Counsel for the assessee read out the reference at page 5 of the said judgment which reads as under:- “Whether the amount of service tax collected by the assessee from its various clients should have been included in gross receipt while computing its income under the provisions of section 44BB of the Act?”
Bringing our attention to paras 17 and 19 on page 88 of the paper book, Ld Counsel for the assessee submitted that the High Court as answered the same in favour of the assessee and relied heavily on the Circulars cited above. The said para reads as under:- “17. The court accordingly holds that for the purposes of computing the „presumptive income‟ of the assessee for the purposes of section 44BB of the Act, service tax collected by the Assessee on the amount paid to it for rendering services is not to be included in the gross receipts in terms of section 44BB(2) read with section 44BB(1). The service tax is not an amount paid or 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 the government.
The court further notes that 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 clarified that “Service Tax paid by the tenant doesn‟t partake the 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 the deduction at source u/s 194-I of Income Tax Act would be required to be made on the amount of rent paid / payable without including the service tax. In Circular No. 1/2014 dated 13th January, 2014, it has been clarified that service tax is not to be included in the fees for professional services or technical services and no TDS is required to be made on the service tax component under section 194J of the Act.”
Ld Counsel for the assessee also submitted that the DRP, while dismissing the assessee‟s arguments, relied heavily on the order of the Tribunal in the case of China Shipping Lines (Hong Kong) Co. Ltd (ITA No.8516/M/2010). In this regard, Ld Counsel for the assessee demonstrated that it is a case where the issue involved revolves around the provisions of section 44B and section 44BB of the Act. In any case, as per the Ld Counsel for the assessee, in the present case the Service Tax collected by the said service recipient, who is a non-resident. In any case, after hearing both parties and considering the solitary judgment of the Hon‟ble Delhi High Court in the case of Mitchell Drilling International Pty Ltd (supra), we are of the opinion, the issues raised in Grounds no.1 and 2, should be allowed in favour of the assessee. Accordingly, Grounds no.1 and 2 are allowed.
Regarding Ground no.3, relating to the reimbursements amounting to Rs. 23,97,382/-, which was thrust on the assessee by the AO by including the same in the gross receipts for the purpose of section 44BB of the Act, Ld Counsel for the assessee submitted that the Assessing Officer and the DRP are in the wrong impression in stating that the reimbursements relating to the “meal and lodging for personnel”. However, bringing our attention to the relevant invoices dated 1.12.2009, Ld Counsel for the assessee submitted that this is the case where the assessee supplied hired out vessel for the expansion to the BGEPIL and the vessel has loaded fuel worth Rs. 23,97,382/-. The equivalent value of this fuel was reimbursed by the recipient of the service (BGEPIL) as it is their responsibility to incur expenses and not by the assessee. For this argument, Ld Counsel for the assessee brought our attention to Item No.9(a) of the „Supply time 2005, Time Charter Party for Offshore Service Vessels‟ (page 29 of the paper book is relevant in this regard). On examining the same and after hearing both the parties, we find, the DRP and the AO are in the wrong presumption on the facts. They have not considered the relevant clauses of the said Chapter as well as the invoices rised by the assessee on the BGEPIL. In our opinion, it is fair and reasonable to remand this issue to the file of the AO for fresh adjudication after granting a reasonable opportunity of being heard to the assessee as per the set principles of natural justice. We order accordingly. Thus, Ground no.3 raised in this appeal is allowed for statistical purposes.
In the result, appeal of the assessee is partly allowed for statistical purposes.