ONGC AS REPRESENTATIVE ASSESSEE OF,DEHRADUN vs. ADIT, DEHRADUN

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ITA 4469/DEL/2013Status: DisposedITAT Delhi03 December 2015AY 2010-114 pages
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What did the Tribunal hold?

The Tribunal dismissed Ground No. 1 as not pressed. For Ground No. 2, the Tribunal followed the Supreme Court's decision in the assessee's own case and held that the receipts were assessable under Section 44BB, not as fees for technical services.

What were the facts?

The assessee appealed against the CIT(A)'s order upholding the AO's view that receipts of Boots and Coots International Well Control Inc. were taxable as fees for technical services. The assessee also argued that the receipts were taxable under Section 44BB of the Income Tax Act.

What were the issues?

Whether receipts from a foreign company for services related to oil exploration are taxable as fees for technical services or under Section 44BB of the Income Tax Act.

Which sections of the Income-tax Act were involved?

Section 44BB,Section 44D

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Income Tax Appellate Tribunal, DELHI BENCH “E”, NEW DELHI

Before: SHRI H.S. SIDHU & SHRI PRASHANT MAHARISHI

Hearing: 201

Date of Hearing : Date of Hearing : 26-11111111-201 Date of Hearing : Date of Hearing : 201 2015 201 Date of Order : Date of Order : 03-12 Date of Order : Date of Order : 12 12-201 12 201 2015 201

ORDER ORDER ORDER ORDER PER PER H.S. SIDHU PER PER H.S. SIDHU H.S. SIDHU : : : : JM H.S. SIDHU The Assessee has filed the present appeal against the impugned order dated 17/5/2013 passed by the Ld. Commissioner of Income Tax (Appeals)-II, Dehradun on the following grounds:-

“1. The Ld. CIT(A)-II, Dehradun, has erred in law and in the facts and circumstances of the case in upholding the order passed by the AO wherein it was held that the receipts of Boots and Coots International Well Control Inc., USA are taxable as “fees for technical services” under the provisions of the Income Tax Act, 1961 and in not holding that its receipts were not taxable in India as per the India-USA Double Taxation Avoidance Agreement.

2. Without prejudice to the preceding ground, the Ld. CIT(A), Dehradun, has erred in law and in the facts and circumstances of the case in not holding that the receipts of Books and Coots International Well Control Inc., USA were taxable u/s. 44BB of the I.T. Act, 1961.

2.

The facts narrated by the revneue authorities are not disputed by both the parties, hence, the same are not repeated here for the sake of convenience.

3.

At the time of hearing Shri Kaveesh Syal, CA/ Authorised Representative of the Assessee stated that he is not pressing the Ground No. 1, hence, the ground no. 1 is dismissed, as not pressed.

3.1 With regard to issue involved in Ground No. 2 is concerned, he stated that the said issue has already been decided in favour of the assessee by the Hon’ble Supreme Court of India in assessee’s own case reported in 376 ITR 306 (SC). Therefore, he requested that the issue involved in Ground No. 2 may be decided by following the judgment of the Hon’ble Supreme Court of India in assessee’s own case. 2

4.

On the other hand, Ld. DR did not controvert the submission made by the Ld. A.R.

5.

We have heard the both parties and perused and considered the relevant record available with us specially the impugned orders passed by the Revenue Authorities and the copy of the Hon’ble Apex Court decision dated 1.7.2015 decided in favour of the assessee title Oil & Natural Gas Corporation Ltd. vs. Commissioner of Income Tax (Assessee’s own case) reported in 376 ITR 306 (SC). The Hon’ble Supreme Court has held as under:-

“The facts indicate that the pith and substance of each of the contracts/ agreements is inextricably connected with prospecting, extraction or production of mineral oil. The dominant purpose of each of such agreement is for prospecting, extraction or production of mineral oils though there may be certain ancillary works contemplated there-under. If that be so, we will have no hesitation in holding that the payments made by ONGC and received by the non-resident assesses or foreign companies under the said contracts is more appropriately assessable under the provisions of section 44BB and not section 44D.”

5.1 After going through the above decision, it is crystal clear that the issue involved in ground no. 2 has been decided by the Hon’ble Supreme Court in favour of the assessee, and therefore, respectfully following the precedent as above, in assessee’s own case, we cancel the orders of the revenue authorities on the issue involved in Ground No. 2 and allow Assessee’s Appeal on this issue.

6.

In the result, the appeal of the Assessee is partly allowed. Order pronounced in the Open Court on 03/12/2015.

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