CIT v. ONGC

299 ITR 438High Court2008#3755 most cited

What is CIT v. ONGC authority for?

Receipts in the nature of Fees for Technical Services (FTS) are taxable as FTS under section 44DA of the Income Tax Act, especially when the assessee has a Permanent Establishment (PE) in India. The income is determined on a gross basis at a specified rate, such as 25%.

32

judgments rely on this decision, according to BharatTax’s citation analysis of 366,339 Indian tax judgments — from 2015 to 2023.

Also referred to as

CIT v ONGC · 299 ITR 438 · section 44DA · Fees for Technical Services · FTS · Permanent Establishment · PE · taxable as FTS · gross basis taxation

Judgments citing CIT v. ONGC

D.C.I.T. Cir-12, Kolkata vs. Usha Martin Telematics Limited, Kolkata

In the result, the appeal filed by the assessee on this ground is dismissed

ITA 838/KOL/2009[2004-05]Status: DisposedITAT Kolkata21 Sept 2016AY 2004-05

Bench: Shri N.V.Vasudevan, J.M. &Dr.A.L.Saini, A.M.)

For Appellant: Shri Nageswar Rao, AdvocateFor Respondent: G. Mallikarjuna, CIT-DR
Section 115JSection 143(1)Section 143(3)

…s for deciding the nature of ‘gain’ and the facts can be distinguished. • Foreign exchange gain is on account of fixed capital and not circulating capital. • The gain is only contingent and notional as held by Uttarakhand High Court in the case of CIT Vs.ONGC 301 ITR 415, and hence can not be taxed. This view is further supported by Hon`ble Kolkata ITAT [EIH Hotels Ltd, 16 DTR 181. • Foreign exchange gain is only hypothetical in nature and no real income to the appellant. • Treatment given by the appellant for calculating MAT does not alter the ‘nature of gain’. It remains as notional and hypothetical. Decision I…

DDIT, Dehradun vs. M/S. Pride Offshore International Llc, New Delhi

ITA 2225/DEL/2014[2009-10]Status: DisposedITAT Delhi29 Jul 2016AY 2009-10

Bench: Shri J.S. Reddy & Shri Kuldip Singh

For Appellant: Shri Vidur Puri, CAFor Respondent: Shri Anuj Arora, CIT DR
Section 44B

…f the legislative intent behind the scheme of taxation envisaged in 9(1)(vi) read with sections 44DA and 44BB ignoring the decisions in the cases of M/s Rolls Royce Pvt. Limited [2007-TII-03-HC- UKHAND-INTL] and M/s ONGC as agent of M/s Foramer France [(2008) 299 ITR 438 Uttarakhand] . 6.1 The Hon'ble DRP has erred in not applying the ratio laid down in the case of Foramer France (Supra), not appreciating the broad proposition laid down in the case that once the receipts answer the definition of Royalty or FTS under the Act, the same cease to qualify for treatment u/s 44BB of the Act. 7. Whether on the facts an…

DDIT, Dehradun vs. M/S. Pride Foramer Sas, New Delhi

ITA 1634/DEL/2014[2009-10]Status: DisposedITAT Delhi29 Jul 2016AY 2009-10

Bench: Shri J.S. Reddy & Shri Kuldip Singh

For Appellant: Shri Vidur Puri, CAFor Respondent: Shri Anuj Arora, CIT DR
Section 44B

…f the legislative intent behind the scheme of taxation envisaged in 9(1)(vi) read with sections 44DA and 44BB ignoring the decisions in the cases of M/s Rolls Royce Pvt. Limited [2007-TII-03-HC- UKHAND-INTL] and M/s ONGC as agent of M/s Foramer France [(2008) 299 ITR 438 Uttarakhand] . 6.1 The Hon'ble DRP has erred in not applying the ratio laid down in the case of Foramer France (Supra), not appreciating the broad proposition laid down in the case that once the receipts answer the definition of Royalty or FTS under the Act, the same cease to qualify for treatment u/s 44BB of the Act. 7. Whether on the facts an…

M/S. Pride Foramer Sas, New Delhi vs. Addl. DIT, Dehradun

ITA 1405/DEL/2014[2009-10]Status: DisposedITAT Delhi29 Jul 2016AY 2009-10

Bench: Shri J.S. Reddy & Shri Kuldip Singh

For Appellant: Shri Vidur Puri, CAFor Respondent: Shri Anuj Arora, CIT DR
Section 44B

…f the legislative intent behind the scheme of taxation envisaged in 9(1)(vi) read with sections 44DA and 44BB ignoring the decisions in the cases of M/s Rolls Royce Pvt. Limited [2007-TII-03-HC- UKHAND-INTL] and M/s ONGC as agent of M/s Foramer France [(2008) 299 ITR 438 Uttarakhand] . 6.1 The Hon'ble DRP has erred in not applying the ratio laid down in the case of Foramer France (Supra), not appreciating the broad proposition laid down in the case that once the receipts answer the definition of Royalty or FTS under the Act, the same cease to qualify for treatment u/s 44BB of the Act. 7. Whether on the facts an…

ADIT, Dehradun vs. M/S. Halliburton Offshore Services Inc., Dehradun

ITA 1332/DEL/2012[2005-06]Status: DisposedITAT Delhi30 Jun 2016AY 2005-06

Bench: Shri I.C.Sudhir & Shri Prashant Maharishiadit, Halliburton Offshore Services International Taxation, Inc. , Vs. 13-A,Subhash Road, C/O. Nangia & Company, Ca, Aayakar Bhawan, 75/7, Rajpur Road, Dehradun Dehradun Pan:Aaach5154M (Appellant) (Respondent) Halliburton Offshore Services Addl. Cit, Inc. , International Taxation, Vs. C/O. Nangia & Company, Ca, Subhash Road, Suite-4A, Plaza M-6, Jasola, Dehradun New Delhi Pan:Aaach5154M (Appellant) (Respondent) Halliburton Offshore Services Inc. , Adit, C/O. Nangia & Company, Ca, International Taxation, Vs. Suite-4A, Plaza M-6, Jasola, 13-A,Subhash Road, New Delhi Aayakar Bhawan, Pan:Aaach5154M Dehradun (Appellant) (Respondent) Halliburton Offshore Services Inc. Vs Ddit (International Taxation)

Section 144CSection 44Section 44BSection 9

…ding 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…

ACIT, Dehradun vs. Westerm Geco International Ltd., Gurgaon

In the result, all the appeals preferred by the assessee are allowed

ITA 5400/DEL/2013[2010-11]Status: DisposedITAT Delhi13 May 2016AY 2010-11

Bench: Shri S. V. Mehrotra & Smt. Beena Pillaii.T.A .No.5602/Del/2013 (Assessment Year 2010-11)

Section 44

…IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: 'H' NEW DELHI BEFORE SHRI S. V. MEHROTRA ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER I.T.A .No.5602/Del/2013 (ASSESSMENT YEAR 2010-11) Western Geco Inernaional Ltd., Vs. ACIT, International 14th Floor, Tower C, Building No.10, Taxation, Dehradun DLF Cyber City Phase II, Gurgaon PAN; AAACW4324J I.T.A .No.5400/Del/2013 (ASSESSMENT YEAR 2010-11) ACIT, International Taxation V Western Geco Inernaional Ltd., 13A, Subhash Road, s 14th Floor, Tower C, Building No.10, Aayakar Bhawan, Dehradun DLF Cyber City Phase II, Gurgaon PAN; AAACW4324J Appellant by…

ITO, Ward - 12(3), Kolkata vs. Umt Investment Ltd., Kolkata

In the result, the appeal of the revenue is allowed subject to the direction contained hereinabove

ITA 554/KOL/2009[2004-05]Status: DisposedITAT Kolkata30 Dec 2015AY 2004-05

Bench: : Shri Mahavir Singh & Shri M. Balaganesh

For Appellant: S/Shri Nageswar Rao, AdvocateFor Respondent: Shri G.Mallikarjun, CIT/ld. DR
Section 143(3)Section 145(2)

…eciding the nature of ‘gain’ and the facts can be distinguished. g. Foreign exchange gain is on account of fixed capital and not circulating capital. h. The gain is only contingent and notional as held by Uttarakhand High Court in the case of CIT vs ONGC Ltd (301 ITR 415) and this view is further supported by Hon’ble Kolkata ITAT (EIH Hotels Ltd). i. Foreign exchange gain is only hypothetical in nature and not realized by the assesssee. 5. Aggrieved, the revenue is in appeal before us on the following ground:- On the facts and in the circumstances of the case, Ld. CIT(A) has erred in deleting the addition of th…

Ambattur Clothing Ltd., Chennai vs. DCIT, Chennai

In the result, the appeals of the assessee in ITA Nos

ITA 910/CHNY/2015[2010-11]Status: DisposedITAT Chennai28 Dec 2015AY 2010-11

Bench: Shri Chandra Poojari & Shri V. Durga Raoआयकर अपील सं./ I.T.A. Nos.1436, 1643/Mds/2014, 910/Mds/2015 ("नधा"रण वष" / Assessment Year : 2008-09, 2009-10 & 2010-2011)

For Appellant: Shri. T. Banusekar, C.AFor Respondent: Shri. Rajib Kumar Hota, IRS, CIT
Section 10BSection 14ASection 14A(2)

…revenue account and not for capital assets. The decision so rendered in Woodward Governor India (supra) was applied and the law was reiterated in ONGC vs CIT, 322 ITR 180 (SC) reversing the decision of the Uttarakhand High Court in the same case reported in 301 ITR 415 (Uttarakhand), which had treated the exchange loss both relating to current and capital account as a contingent liability. Supreme Court in CIT v. Maruti Udyog, 320 ITR 729 (SC) decided that depreciation on cost enhanced by capitalization of foreign exchange loss was deductible following the decision in Woodward Governor India (supra). The Comm…

Ambattur Clothing Ltd., Chennai vs. DCIT, Chennai

In the result, the appeals of the assessee in ITA Nos

ITA 1643/CHNY/2014[2009-10]Status: DisposedITAT Chennai28 Dec 2015AY 2009-10

Bench: Shri Chandra Poojari & Shri V. Durga Raoआयकर अपील सं./ I.T.A. Nos.1436, 1643/Mds/2014, 910/Mds/2015 ("नधा"रण वष" / Assessment Year : 2008-09, 2009-10 & 2010-2011)

For Appellant: Shri. T. Banusekar, C.AFor Respondent: Shri. Rajib Kumar Hota, IRS, CIT
Section 10BSection 14ASection 14A(2)

…revenue account and not for capital assets. The decision so rendered in Woodward Governor India (supra) was applied and the law was reiterated in ONGC vs CIT, 322 ITR 180 (SC) reversing the decision of the Uttarakhand High Court in the same case reported in 301 ITR 415 (Uttarakhand), which had treated the exchange loss both relating to current and capital account as a contingent liability. Supreme Court in CIT v. Maruti Udyog, 320 ITR 729 (SC) decided that depreciation on cost enhanced by capitalization of foreign exchange loss was deductible following the decision in Woodward Governor India (supra). The Comm…

Ambattur Clothing Ltd., Chennai vs. DCIT, Chennai

In the result, the appeals of the assessee in ITA Nos

ITA 1436/CHNY/2014[2008-09]Status: DisposedITAT Chennai28 Dec 2015AY 2008-09

Bench: Shri Chandra Poojari & Shri V. Durga Raoआयकर अपील सं./ I.T.A. Nos.1436, 1643/Mds/2014, 910/Mds/2015 ("नधा"रण वष" / Assessment Year : 2008-09, 2009-10 & 2010-2011)

For Appellant: Shri. T. Banusekar, C.AFor Respondent: Shri. Rajib Kumar Hota, IRS, CIT
Section 10BSection 14ASection 14A(2)

…revenue account and not for capital assets. The decision so rendered in Woodward Governor India (supra) was applied and the law was reiterated in ONGC vs CIT, 322 ITR 180 (SC) reversing the decision of the Uttarakhand High Court in the same case reported in 301 ITR 415 (Uttarakhand), which had treated the exchange loss both relating to current and capital account as a contingent liability. Supreme Court in CIT v. Maruti Udyog, 320 ITR 729 (SC) decided that depreciation on cost enhanced by capitalization of foreign exchange loss was deductible following the decision in Woodward Governor India (supra). The Comm…

ADIT, Dehradun vs. M/S. Fugro Geoteam As, Dehradun

In the result the appeal of the Revenue is dismissed and the cross

ITA 5928/DEL/2013[2010-11]Status: DisposedITAT Delhi20 Nov 2015AY 2010-11

Bench: Shri A.T. Varkey & Shri Prashant Maharishi

For Appellant: S/Shri Amit Arora & Suraj Nangia, CAsFor Respondent: Shri Anuj Arora, CIT DR
Section 142(1)Section 143(1)Section 143(2)Section 143(3)Section 3

…, the Ld CIT(A) has erred in interpretation of the legislative intent behind the scheme of taxation envisaged in 9(1)(vii) read with sections 44DA and 44BB of the Act, ignoring the decision in the case of CIT vs M/s ONGC As Agent of M/s Foramer France [(2008) 299 ITR 438 Uttarakhand] . 5. Whether on the facts and in the circumstances of the case, the Ld CIT(A) has erred in ignoring the distinct scheme of taxation of FTS and disregarding the insertion of provisos in section(s) 44BB/44DA/115A and the rationale behind the introduction of said clarificatory provisos in the Finance Bill 2010. 6. Whether on the facts…

ADIT Intl. Taxation, Dehradun vs. Hrs Seismic Services Ltd., Mumbai

In the result, the appeal of the Revenue is dismissed

ITA 347/DEL/2012[2003-04]Status: DisposedITAT Delhi30 Sept 2015AY 2003-04

Bench: Smt Diva Singh & Sh.Inturi Rama Rao

Section 115ASection 143(3)Section 144Section 147Section 148Section 9(1)(vi)

…ied upon in the 32 paged paper book:- (i) B.J.Services Company Middle East Ltd. vs DDIT (Int. Taxation), Dehradun [201 Taxmann 188] (UK HC); (ii) ADIT vs Hampson Russell Ltd. Partnership (ITA No.6072-6073 and 6074/Del/2012); and (iii) CIT and Another vs ONGC {299 ITR 438} [UK HC]. 3. On the date of hearing, Ld. Sr. DR sought time to study the decisions. Time was granted and the appeal was adjourned. On the next date, Ld. CIT DR placed reliance on the A.O. No distinguishing fact or circumstance was referred to in order to rebut the claim of the Ld.AR that the issue is conclusively concluded in favour of the assess…