ONGC v. CIT

376 ITR 306Supreme Court of India2015#363 most cited

What is ONGC v. CIT authority for?

Income derived by a non-resident for services related to mineral oil operations, falling under the presumptive taxation regime of Section 44BB, cannot simultaneously be treated as fees for technical services under Section 9(1)(vii). The specific presumptive provisions override the general FTS definition, particularly when DTAA applies.

241

judgments rely on this decision, according to BharatTax’s citation analysis of 367,181 Indian tax judgments — from 2015 to 2026.

Also referred to as

ONGC v. CIT · Section 44BB · Section 44DA · Section 9(1)(vii) · fees for technical services · FTS · presumptive taxation · non-resident income · DTAA · permanent establishment

Also reported as

59 Taxmann.com 1

Sections most often in play

Section 44BBSection 143(3)Section 44DASection 9(1)(vii)Section 43ASection 115ASection 147Section 148

Issues it is cited on

section 44dasection 44bbsection 44dsection 44bsection 115asection 92c(2)section 42section 9(1)(vii)section 9(1)fees for technical servicessection 9(1)(vi)permanent establishment

Judgments citing ONGC v. CIT

The Commissioner of Income Tax - International Taxation -3 vs. Technip France Sas

ITA - 56 / 2023HC Delhi30 Jan 2023
Section 115ASection 44BSection 44DSection 9(1)(vii)

…5.2. The respondent/assessee, accordingly, it appears, has offered the amount received against the activity for levy of tax under Section 44BB of the Act and appears to have relied upon the following judgments: (i) ONGC Ltd. v. Commissioner of Income Tax 376 ITR 306; (ii) DIT v. OHM Limited (2013) 352 ITR 406 (Delhi) 6. According to the appellant/revenue, the respondent/assessee is the second line contractor. The Tribunal, in this behalf, while ruling in favour of the respondent/assessee, has relied upon its decision rendered in the matter concerning the respondent/assessee. 7. The appellant/reven…

Rosebys Interiors India Ltd., Ahmedabad vs. The Asstt. Commissioner of Income Tax, Circel-5, Ahmedabad

In the result, this Ground of appeal of the Department is dismissed

ITA 204/AHD/2017[2010-11]Status: DisposedITAT Ahmedabad04 Nov 2022AY 2010-11
For Appellant: Shri Mukund Bakshi, A.RFor Respondent: Shri Sudhendu Das, CIT-D.R
Section 234ASection 271Section 37

…O. has proceeded to disallow foreign exchange loss amounting to Rs.8,09,35,919/-. During the course of appellate proceedings, appellant has relied upon the contentions made before the A.O. Further it has relied upon various case law such as ONGC Ltd. v/s. CIT 322 ITR 180 (SC), CIT v/s. Woodward Governor India P. Ltd. 312 ITR 254 (SC) etc. It has also relied upon the applicability of AS- 11 as issued by Institute of Chartered Accountants of India {ICAI}. Keeping in mind the stand taken by TPO, withdrawal of ground Nos.5 & 6 by the appellant itself as well as stand taken by the A.O,, it is apparent that the said lo…

The DCIT, Circle-3(1)(1), Ahmedabad vs. M/S. Rosebys Interiors India Ltd., Ahmedabad

In the result, this Ground of appeal of the Department is dismissed

ITA 153/AHD/2017[2010-11]Status: DisposedITAT Ahmedabad04 Nov 2022AY 2010-11
For Appellant: Shri Mukund Bakshi, A.RFor Respondent: Shri Sudhendu Das, CIT-D.R
Section 234ASection 271Section 37

…O. has proceeded to disallow foreign exchange loss amounting to Rs.8,09,35,919/-. During the course of appellate proceedings, appellant has relied upon the contentions made before the A.O. Further it has relied upon various case law such as ONGC Ltd. v/s. CIT 322 ITR 180 (SC), CIT v/s. Woodward Governor India P. Ltd. 312 ITR 254 (SC) etc. It has also relied upon the applicability of AS- 11 as issued by Institute of Chartered Accountants of India {ICAI}. Keeping in mind the stand taken by TPO, withdrawal of ground Nos.5 & 6 by the appellant itself as well as stand taken by the A.O,, it is apparent that the said lo…

D.C.I.T.-CC-2(4), Kolkata vs. M/S Global Wool Alliance Pvt. Ltd., Kolkata

In the result, the appeal of the revenue is dismissed

ITA 260/KOL/2020[2005-06]Status: DisposedITAT Kolkata02 Nov 2022AY 2005-06

Bench: Shri Sanjay Garg & Shri Rajesh Kumar]

Section 92C

…attributable to loan utilized for working capital needs. Moreover I find that subsequent thereto, this particular issue has since been settled and answered by the Hon'ble Supreme Court in the case of Woodward Governor Pvt. Ltd (312 ITR 254) and ONGC vs. CIT (322 ITR 180) wherein the foreign exchange loss attributable to working capital was held to be revenue in nature and allowable as deduction from profits of the business. The Hon'ble Court further held that the MTM loss determined at the year-end on the basis of the prevailing exchange rate is a real loss and admissible for tax purpose in the year of recogniti…

Oil & Natural Gas Corporation Ltd., Ahmedabad vs. The ITO-2 (Internation Taxation), Ahmedabad

In the result the appeal filed by the assessee is allowed

ITA 1882/AHD/2019[NA]Status: DisposedITAT Ahmedabad03 Aug 2022

Bench: Shri Mahavir Prasad & Shri Waseem Ahmedआयकर अपील सं./Ita Nos. 1881-1882/Ahd/2019 िनधा"रण वष"/Asstt. Years: N.A Oil & Natural Gas Corporation Income Tax Officer-2, Limited, Vs. (International Taxation), Institute Of Reservoir Studies, Ahmedabad. Chandkheda Campus, Ahmedabad-380005. Pan: Aaaco1598A

For Appellant: Shri Mohd. Farid, A.RFor Respondent: Shri Mohd. Usman, CIT.D.R with Shri Purushottam Kumar, Sr.D.R
Section 195Section 195(2)Section 44BSection 9Section 90(2)

…l Enhanced Oil Recovery (EOR) formulations was somewhere directly connected with the extraction and production of mineral oil. The assessee regarding this also relied on the judgment of Hon’ble Apex Court rendered in its own case dated 01-07-2015, reported in 376 ITR 306. 6.4 The assessee, accordingly prayed before the Ld. CIT-A, to tax the receipts of non-residents in accordance to the provisions of section 44BB of the Act. 7. However the Ld. CIT-A disregarded the contention of the assessee and confirmed the order of the AO by observing as under; 5. I have carefully considered the order and the written submissi…

Oil & Natural Gas Corporation Ltd., Ahmedabad vs. The ITO-2 (Internation Taxation), Ahmedabad

In the result the appeal filed by the assessee is allowed

ITA 1881/AHD/2019[NA]Status: DisposedITAT Ahmedabad03 Aug 2022

Bench: Shri Mahavir Prasad & Shri Waseem Ahmedआयकर अपील सं./Ita Nos. 1881-1882/Ahd/2019 िनधा"रण वष"/Asstt. Years: N.A Oil & Natural Gas Corporation Income Tax Officer-2, Limited, Vs. (International Taxation), Institute Of Reservoir Studies, Ahmedabad. Chandkheda Campus, Ahmedabad-380005. Pan: Aaaco1598A

For Appellant: Shri Mohd. Farid, A.RFor Respondent: Shri Mohd. Usman, CIT.D.R with Shri Purushottam Kumar, Sr.D.R
Section 195Section 195(2)Section 44BSection 9Section 90(2)

…l Enhanced Oil Recovery (EOR) formulations was somewhere directly connected with the extraction and production of mineral oil. The assessee regarding this also relied on the judgment of Hon’ble Apex Court rendered in its own case dated 01-07-2015, reported in 376 ITR 306. 6.4 The assessee, accordingly prayed before the Ld. CIT-A, to tax the receipts of non-residents in accordance to the provisions of section 44BB of the Act. 7. However the Ld. CIT-A disregarded the contention of the assessee and confirmed the order of the AO by observing as under; 5. I have carefully considered the order and the written submissi…

DCIT Circle- 1, Thane vs. M/S Everest Industries Ltd, Delhi

In the result, appeal of the Revenue is partly

ITA 554/MUM/2020[2010-11]Status: DisposedITAT Mumbai29 Jul 2022AY 2010-11

Bench: Shri B.R. Baskaran & Shri Anikesh Banerjee

For Appellant: Sh Chaitanya Joshi &For Respondent: Shri Amol Kirtane, CIT-DR
Section 143(3)Section 250(6)Section 32(1)(iia)Section 43B

…on account of the exchange difference as on the date of the balance sheet is an item of allowable expenditure/s under section 37(1) of the I.T. Act, 1961 and an identical view was also taken by Apex Court in the case of ONGC Ltd. vs. CIT reported in (2010) 322 ITR 180 (SC). The Learned Counsel for the Assessee further submitted that the Mumbai Special Bench in the case DCIT vs. Bank of Bahrain and Kuwait reported in (2010) 132 TTT 505 (Mum.) (SB) has held that MTM losses in respect of forward foreign exchange contracts debited to profit and loss account is an allowable expenditure. The Learned Counsel f…

Everest Industrial Ltd., Noida vs. Dy CIT Circle-1, Thane

In the result, appeal of the Revenue is partly

ITA 7791/MUM/2019[2010-11]Status: DisposedITAT Mumbai29 Jul 2022AY 2010-11

Bench: Shri B.R. Baskaran & Shri Anikesh Banerjee

For Appellant: Sh Chaitanya Joshi &For Respondent: Shri Amol Kirtane, CIT-DR
Section 143(3)Section 250(6)Section 32(1)(iia)Section 43B

…on account of the exchange difference as on the date of the balance sheet is an item of allowable expenditure/s under section 37(1) of the I.T. Act, 1961 and an identical view was also taken by Apex Court in the case of ONGC Ltd. vs. CIT reported in (2010) 322 ITR 180 (SC). The Learned Counsel for the Assessee further submitted that the Mumbai Special Bench in the case DCIT vs. Bank of Bahrain and Kuwait reported in (2010) 132 TTT 505 (Mum.) (SB) has held that MTM losses in respect of forward foreign exchange contracts debited to profit and loss account is an allowable expenditure. The Learned Counsel f…

DCIT, New Delhi vs. M/S. Technip France Sas, Gurgaon

In the result, appeal is dismissed

ITA 724/DEL/2015[2011-12]Status: DisposedITAT Delhi26 Jul 2022AY 2011-12

Bench: Shri G.S. Pannu, Hon’Ble & Shri Saktijit Dey, Judicialmember Assessment Year: 2011-12

Section 144C(5)Section 44BSection 44DSection 9(1)(vii)

…cable to the assessee. In this context, he drew our attention to the scope of work as envisaged in the contract between the assessee and RIL. 6 AY: 2011-12 8. Drawing our attention to the decision of the Hon’ble Supreme Court in case of ONGC Ltd. Vs. CIT, 376 ITR 306, learned Departmental Representative submitted that what is to be examined is, whether the dominant purpose of the contract is prospecting for or extraction or production of mineral oils. He submitted, as per the contract with RIL, the assessee is not required to perform any activity in connection with prospecting for or extraction or producti…

Asahi Songwon Colors Limited, Ahmedabad vs. The DCIT, Circle-1(1)(1), Ahmedabad

In the result, the grounds raised by the Assessee are hereby allowed and the appeal filed by the Assessee is allowed

ITA 1615/AHD/2019[2010-11]Status: DisposedITAT Ahmedabad22 Jul 2022AY 2010-11
For Appellant: Shri Sunil Talati, A.RFor Respondent: Shri V.K. Singh, Sr.D.R
Section 10BSection 143(3)Section 14ASection 80I

…the assessee and does not change the character of the income from the assessee's export business. 7. The above view of the court finds support in the decision of the Supreme Court in Oil and Natural Gas Corporation Ltd. v. Commissioner of Income-tax, [2010] 322 ITR 180 (SC), wherein the court held that the loss suffered by the assessee, maintaining accounts regularly on mercantile system and following accounting standards prescribed by the Institute of Chartered Accountants of India (ICAI), on account of fluctuation in the rate of foreign exchange as on the date of balance sheet was an item of expenditure under…

The Commissioner of Income-Tax vs. M/S Bangalore Metro Rail Corporation Ltd

ITA/60/2014HC Karnataka30 Jun 2022

Bench: P.S.DINESH KUMAR,ANANT RAMANATH HEGDE

Section 260Section 9(1)(vii)

…placed reliance on the following authorities: (a) Oil and Natural Gas Corporation Ltd., Vs. Commissioner of Income Tax, Dehradun7; (b) Director of Income Tax Vs. AP Moller Maersk8 A.S; 7 (2010)322 ITR 180 (SC) (para 8) I.T.A. No.60/2014 C/W I.T.A. No.59/2014 10 (c) Japan Airlines Company Ltd.,…

The Commissioner of Income-Tax vs. M/S Bangalore Metro Rail Corporation Ltd

ITA/59/2014HC Karnataka30 Jun 2022

Bench: P.S.DINESH KUMAR,ANANT RAMANATH HEGDE

Section 260Section 9(1)(vii)

…placed reliance on the following authorities: (a) Oil and Natural Gas Corporation Ltd., Vs. Commissioner of Income Tax, Dehradun7; (b) Director of Income Tax Vs. AP Moller Maersk8 A.S; 7 (2010)322 ITR 180 (SC) (para 8) I.T.A. No.60/2014 C/W I.T.A. No.59/2014 10 (c) Japan Airlines Company Ltd.,…

Orient Cement Limited, Kolkata vs. DCIT, Circle - 6(1), Kolkata

In the result, the appeal of the assessee is treated as partly allowed

ITA 1272/KOL/2018[2013-14]Status: DisposedITAT Kolkata16 Mar 2022AY 2013-14

Bench: Shri Sanjay Garg&Shri Girish Agrawali.T.A. No.1272/Kol/2018 Assessment Year: 2013-14 Orient Cement Ltd...................................................................…………………Appellant 9/1, R.N. Mukherjee Road, Kolkata-1. [Pan:Aabco5420A] Vs. Dcit, Circle-6(1), Kolkata…............…...........……………….....………..…..Respondent Appearances By: Shri Akkal Dudhwewala, Fca, Appeared On Behalf Of The Appellant. Shri Sallong Yaden, Addl. Cit, Dr, Appeared On Behalf Of The Respondent. Date Of Concluding The Hearing : February 08, 2022 Date Of Pronouncing The Order : March 16, 2022 Hearing Through Video Conferencing Order Per Sanjay Garg: The Present Appeal Has Been Preferred By The Assessee Against The Order Dated 14.05.2018 Of The Commissioner Of Income Tax (Appeals)-2, Kolkata [Hereinafter Referred To As ‘Cit(A)’]Passed U/S 250 Of The Income Tax Act(Hereinafter Referred To As The ‘Act’). The Assessee In This Appeal Has Taken The Following Grounds Of Appeal:

Section 143(3)Section 250Section 36Section 37

…IN THE INCOME TAX APPELLATE TRIBUNAL “C” (Virtual Court Hearing) BENCH KOLKATA Before Shri Sanjay Garg, Judicial Member &Shri Girish Agrawal, Accountant Member I.T.A. No.1272/Kol/2018 Assessment Year: 2013-14 Orient Cement Ltd...................................................................…………………Appellant 9/1, R.N. Mukherjee Road, Kolkata-1. [PAN:AABCO5420A] vs. DCIT, Circle-6(1), Kolkata…............…...........……………….....………..…..Respondent Appearances by: Shri Akkal Dudhwewala, FCA, appeared on behalf of the Appellant. Shri Sallong Yaden, Addl. CIT, DR, appeared on behalf of the Respondent. Date of conclud…

Deputy Commissioner of Income Tax Circle-7(1)(1), Bangalore vs. M/S Thought Works Technologies India Private Limited, Bangalore

In the result, the appeal filed by the assessee is partly allowed and the appeal filed by the Revenue is dismissed

ITA 590/BANG/2019[2012-13]Status: HeardITAT Bangalore04 Jan 2022AY 2012-13

Bench: Shri Chandra Poojari, Am & Shri George George K, Jm

For Appellant: Sri.V.Sridhar, CAFor Respondent: Sri.Jairam Raipura, CIT-DR
Section 143(3)Section 43A

…uires an asset in a previous year. The EEFC account was maintained by the assessee to facilitate regular business operation and not for acquiring any asset. The Hon’ble Apex Court in the case of Oil and Natural Gas Corporation Limited v CIT reported in (2010) 322 ITR 180 (SC) had observed as under:- “10. Thus, the questions surviving for determination are: (i) that when the assessee maintained their accounts on mercantile system of accounting and there was no finding by the AO on the correctness or completeness of the account and that the assessee had complied with the accounting standards laid down by the Centr…

Thoughtworks Technologies (India) Private Limited, Bangalore vs. Deputy Commissioner of Income Tax, Circle -7(1)(1), Bangalore

In the result, the appeal filed by the assessee is partly allowed and the appeal filed by the Revenue is dismissed

ITA 580/BANG/2019[2012-13]Status: HeardITAT Bangalore04 Jan 2022AY 2012-13

Bench: Shri Chandra Poojari, Am & Shri George George K, Jm

For Appellant: Sri.V.Sridhar, CAFor Respondent: Sri.Jairam Raipura, CIT-DR
Section 143(3)Section 43A

…uires an asset in a previous year. The EEFC account was maintained by the assessee to facilitate regular business operation and not for acquiring any asset. The Hon’ble Apex Court in the case of Oil and Natural Gas Corporation Limited v CIT reported in (2010) 322 ITR 180 (SC) had observed as under:- “10. Thus, the questions surviving for determination are: (i) that when the assessee maintained their accounts on mercantile system of accounting and there was no finding by the AO on the correctness or completeness of the account and that the assessee had complied with the accounting standards laid down by the Centr…

Andritz Hydro P Ltd, Bhopal vs. Pr CIT-1, Bhopal

ITA 199/IND/2020[2015-16]Status: DisposedITAT Indore29 Oct 2021AY 2015-16

Bench: Shri Manish Borad & Ms. Madhumita Royvirtual Hearing

Section 115JSection 253Section 263

…k to market loss is allowable as a deduction. Further, Hon’ble Supreme Court in the case of CIT vs Woodward Governor India Private Limited (supra) held mark to market loss to be allowable. WE also find that Hon’ble Supreme Court in the case of ONGC vs CIT (322 ITR 180) (SC) upheld the order of Special Bench of Delhi ITAT wherein it held that the foreign exchange fluctuation loss is not contingent or notional. Accordingly, we are of the view that when the assessment order is in line with the decision of the Supreme Court and jurisdictional bench of Hon’ble ITAT, it cannot be said to be erroneous in nature. F…

Intecsea Asia Pacific Sdn Bhd, Malaysia vs. ACIT, International Taxation, Circle- 1, Dehradun

The appeal of the assessee is allowed

ITA 5577/DEL/2018[2015-16]Status: DisposedITAT Dehradun08 Oct 2021AY 2015-16

Bench: Shri Amit Shukla & Shri B.R.R. Kumarasstt. Year : 2015-16 Intecsea Asia Pacific N Vs. Acit, International Bhd Taxation, Circle-1, Kpmg Salarpuria Knowledge Dehradun City, Orwell Unit 3, 6Th Floor Sy. No. 83/2, Plot 2, Raidurg, Hyderabad 500081 (Appellant) (Respondent)

For Appellant: Shri Ajit Jain, CA
Section 143(2)Section 143(3)Section 44BSection 44DSection 9

…INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “B”: NEW DELHI (Through Video Conferencing) BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI B.R.R. KUMAR, ACCOUNTANT MEMBER Asstt. Year : 2015-16 INTECSEA Asia Pacific n Vs. ACIT, International Bhd Taxation, Circle-1, KPMG Salarpuria Knowledge Dehradun City, Orwell Unit 3, 6th Floor Sy. No. 83/2, Plot 2, Raidurg, Hyderabad 500081 (Appellant) (Respondent) Assessee by: Shri Ajit Jain, CA Shri Siddhesh Chaughle, CA Department by Shri Thakur Singh Mapwal, Sr. : DR O R D E R PER AMIT SHUKLA, JM The aforesaid appeal has been filed by the assessee against impugned order d…

Edelcap Securities Ltd, Mumbai vs. ACIT, Circle 3(1)(2), Mumbai

In the result, all the appeals of the Revenue as well as the assessee are partly allowed

ITA 6889/MUM/2018[2013-14]Status: DisposedITAT Mumbai28 Sept 2021AY 2013-14
Section 115JSection 143(3)

…method of computing the income. The assessee also placed reliance on the decisions of the Hon‟ble Supreme Court in the case of CIT vs. Woodward Governor India Pvt. Ltd., reported in 312 ITR 254; Oil and Natural Gas Corporation Ltd., (ONGC) vs. CIT reported in 322 ITR 180; United Commercial Bank vs. CIT reported in 240 ITR 355. Apart from this, assessee also placed reliance on the decision of this Tribunal in the case of Edelweiss Capital Ltd., vs. ITO in ITA No.5324/Mum/2007, Edelweiss Securities Ltd., in ITA No.2193/Mum/2009, ITA No.7792/Mum/2012 and ITA No.5939/Mum/2011 among other cases. The assessee also stat…

The Principal Commissioner of Income Tax vs. M/S. Apollo Tyres Ltd

Appeal is allowed in part as indicated

ITA/44/2017HC Kerala22 Sept 2021

Bench: HONOURABLE MR.JUSTICE S.V.BHATTI,HONOURABLE MR.JUSTICE VIJU ABRAHAM

For Appellant: M/S. APOLLO TYRES LTDFor Respondent: THE PRINCIPAL COMMISSIONER OF INCOME TAX
Section 143(3)Section 144CSection 144C(5)Section 35Section 43ASection 92C

…ss and until the fallacy in the findings recorded by the Tribunal is established within the scope of Section 260A. The Revenue has not made up a ground for interfering with the findings recorded by the Tribunal. 10 (2009) 312 ITR 254 (SC) 11 (2010) 322 ITR 180 (SC) ITA No.44/2017 -48- Suffice to note that the decision of the Supreme Court in Woodward Governor India P. Ltd. and ONGC are applicable to the case on hand. The correct proposition is applied and the Tribunal had recorded a finding in favour of the assessee. We do not, for brevity, propose to re-state the very reasons,…

M/S. Appollo Tyres Ltd vs. The Assistant Commissioner of Income Tax

ITA/249/2015HC Kerala26 Aug 2021

Bench: HONOURABLE MR.JUSTICE S.V.BHATTI,HONOURABLE MR.JUSTICE VIJU ABRAHAM

Section 40

…actual cost 14 of imported assets acquired in foreign currency on account of fluctuation in the rate of exchange at each balance-sheet date, pending actual payment of the varied liability with reference to unamended section 43A of the Act, in 3 (2010) 322 ITR 180 (SC) I.T.A. No. 249/2015 -22- Woodward's case [2009] 312 ITR 254, the court observed thus (page 272): "... what triggers the adjustment in the actual cost of the assets, in terms of the unamended section 43A of the 1961 Act is the change in the rate of exchange subsequent to the acquisition of asset in foreign currency. The section mandates t…