HELIX ENERGY SOLUTIONS GROUP INC, NEW DELHI V. ADDL DIT (IT) RG 3, MUMBAI

ITA 1236/MUM/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2971 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: L
• Next Hearing Date: 10-06-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 13-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Presumptive income; Business income; Rule of consistency
• Section: 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMB AI BENCH L, MUMBAI BEFORE SHRI B.R.BASKARAN, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.1236/MUM/2013 FOR ASSESSMENT YEAR: 2009-10 AND ITA NO.3068/MUM/2014 FOR ASSESSMENT YEAR: 2010-11 HELIX ENERGY SOLUTIONS GROUP INC C/O NANGIA & COMPANY SUITE 4A, PLAZA M-6, JASOLA, NEW DELHI-110025 PAN: AABCH9122J VS. ADDL. DIT (IT) RANGE- 3, SCINDIA HOUSE, BALLARD PIER, MUMBAI-400001. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI NEERAJ AGARWA LA (AR) REVENUE BY : SHRI JASBIR CHAUHA N (CIT) DATE OF HEARING : 17.06.2016 DATE OF PRONOUNCEMENT : 29.06.2016 O R D E R PER PAWAN SINGH, JM: 1. THESE TWO APPEALS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) DATED 30.11.2011AND 02.01.2014 FOR ASSESSMENT YEARS (AYS) 2009-10 & 20 10-11 RESPECTIVELY, WERE HEARD TOGETHER AND ARE DECIDED BY COMMON ORDER AS IN BOTH THE APPEALS IDENTICAL GROUNDS ARE RAISED. FOR APPRECIATION OF FACT FIRST WE SHALL TA KE UP THE ITA NO.1236/M/2013 FOR AY 2009-10, WHEREIN FOLLOWING GROUNDS ARE RAISED. GROUND NO.1: THAT BASED ON THE FACTS AND CIRCUMSTANCES OF THE C ASE, THE LD. COMMISSIONER OF INCOME-TAX, APPEALS-1-, MUMBAI (CIT ) ERRED IN UPHOLDING THE ORDER OF THE AO THAT RECEIPTS OF RS. 221,377,861/- ON ACCOUNT OF SERVICE TAX WERE INCLUDIBLE IN THE GROSS RECEIPTS FOR THE PURPOSE OF DETERMINING INCOME UNDER SECTION 44BB OF THE INCOME-TAX ACT, 1961. GROUND NO. 2 : THAT BASED ON THE FACTS AND CIRCUMSTANCES OF THE CA SE, THE LD. COMMISSIONER OF INCOME-TAX, APPEALS-1-, MUMBAI (CIT ) ERRED IN UPHOLDING THE ORDER OF THE AO THAT RECEIPTS OF RS. 7,645,919/- ON ACCOUNT OF VAT WERE INCLUDIBLE 2 ITA NOS.1236/M/13 & 3068/M/2014 HELIX ENERGY SOLUTI ONS GROUP INC . IN THE GROSS RECEIPTS FOR THE PURPOSE OF DETERMININ G INCOME UNDER SECTION 44BB OF THE INCOME-TAX ACT, 1961. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE H AVING ITS REGISTERED OFFICE IN BERMUDA AND ITS PROJECT OFFICE IN MUMBAI. THE ASSESSEE IS E NGAGED IN THE BUSINESS OF PROVIDING SERVICES AND FACILITIES IN CONNECTION WITH EXPLORAT ION, EXPLOITATION AND PRODUCTION OF MINERAL OIL IN INDIA, FILED ITS RETURN OF INCOME IN THE RELEVANT AY DECLARING TOTAL INCOME OF RS. 55,54,53,897/-. THE RETURN OF INCOME WAS SEL ECTED FOR SCRUTINY. WHILE FRAMING THE ASSESSMENT, THE ASSESSING OFFICER (AO) MAKE THE ADDITION OF SERVICE TAX OF RS.22,13,77,861/- AND RS.76,45,919/- ON ACCOUNT O F VAT AS A PART OF INCOME OF ASSESSEE VIDE ASSESSMENT ORDER DATED 09.02.2012 U/S . 44B OF THE ACT. AGGRIEVED BY IT, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A) BUT WITHOUT ANY SUCCESS, THUS APPROACHED US BY WAY OF SECOND APPEAL. 3. WE HAVE HEARD LD. AUTHORISED REPRESENTATIVE (AR) OF THE ASSESSEE AND SHRI JASBIR CHAUHAN LD. DR FOR REVENUE. AR FOR ASSESSEE ARGUED THAT BOTH THE GROUNDS RAISED IN THE PRESENT APPEAL ARE COVERED IN FAVOUR OF THE ASS ESSEE BY THE DECISION OF DELHI HIGH COURT IN DIT VS. MITCHELL DRILLING INTERNATIONAL PV T. LTD. IN ITA NO. 403/2013 AND 384/2015 DATED 28.09.2015 AND DECISIONS OF CO-ORDI NATE BENCH OF THIS TRIBUNAL IN CASE TITLED AS OCEANEERING INTERNATIONAL GMBH VS. DCIT ( ITA NO. 1023/M/2014 DATED 06.11.2015), ISLAMIC REPUBLIC OF IRAN SHIPPING LINE S VS. DCIT (ITA NO. 4877/M/2014 17.02.2016) AND M/S HANJIN SHIPPING COMPANY LTD. VS . DDIT (ITA NO. 5277/M/2014 DT. 13.05.2016). ON THE OTHER HAND, LD DR FOR THE REVENUE HAS ARGUED THAT DECISION OF UTTARANCHAL HIGH COURT IN CASE TITLED AS HALLIBURTO N OFFSHORE SERVICES INC. (2008) 300 ITR 265/169 TAXMAN 138 DATED 20.09.2007 IS AGAINST THE ASSESSEE AND FURTHER SEEKS RELIANCE ON THE WRITTEN SUBMISSION FILED BY THE REV ENUE ON RECORD. LD. DR FOR REVENUE FURTHER RELIED ON THE DECISION OF CHINA SHIPPING C ONTAINER LINES, HDFC BANK VS. DCIT (ITA NO. 3724/M/2012 DATED 23.09.2015), THE DECISIO N OF UTTRAKHAND HIGH COURT IN SEDCO FOREX INTERNATIONAL INC VS. CIT (299 ITR 238) (UKD.), AND THE DECISION OF JURISDICTIONAL HIGH COURT CIT VS. THANE ELECTRICAL SUPPLY LTD. 4. WE HAVE CONSIDERED THE RIVAL CONTENTION OF THE PART IES AND GONE THROUGH THE WRITTEN SUBMISSION FILED BY LD. DR FOR REVENUE. THE HONBLE DELHI HIGH COURT IN ITA NO. 403/2013 IN CASE TITLED AS DIT VS. MITCHELL DRILLIN G INTERNATIONAL PVT. LTD. WHILE CONSIDERING ALMOST IDENTICAL ISSUE IN RESPECT OF TH E ASSESSEE WHO IS ALSO ENGAGED IN THE SIMILAR BUSINESS AS OF THE ASSESSEE HELD AS UNDER: 9. SECTION 44BB BEGINS WITH A NON OBSTANTE CLAUSE THAT EXCLUDES THE APPLICATION OF SECTIONS 28 TO 41 AND SECTIONS 43 AND 43A TO ASSESS MENTS UNDER SECTION 44BB. IT INTRODUCES THE CONCEPT OF PRESUMPTIVE INCOME AND ST ATES THAT 10% CREDIT OF THE AMOUNTS PAID OR PAYABLE OR DEEMED TO BE RECEIVED BY THE ASSESSEE ON ACCOUNT OF 3 ITA NOS.1236/M/13 & 3068/M/2014 HELIX ENERGY SOLUTI ONS GROUP INC . 'THE PROVISION OF SERVICES AND FACILITIES IN CONNEC TION WITH, OR SUPPLY OF PLANT AND MACHINERY ON HIRE USED, OR TO BE USED, IN THE PROSP ECTING FOR, OR EXTRACTION OR PRODUCTION OF, MINERAL OILS IN INDIA' SHALL BE DEEM ED TO BE THE PROFITS AND GAINS OF THE CHARGEABLE TO TAX. THE PURPOSE OF THIS PROVISIO N IS TO TAX WHAT CAN BE LEGITIMATELY CONSIDERED AS INCOME OF THE ASSESSEE E ARNED FROM ITS BUSINESS AND PROFESSION. 10. THE EXPRESSION 'AMOUNT PAID OR PAYABLE' IN SECT ION 44BB(2)(A) AND THE EXPRESSION AMOUNT RECEIVED OR DEEMED TO BE RECEIVE D' IN SECTION 44 BB (2) (B) IS QUALIFIED BY THE WORDS 'ON ACCOUNT OF TH E PROVISION OF SERVICES AND FACILITIES IN CONNECTION WITH, OR SUPPLY OF PLANT AND MACHINER Y.' THEREFORE, ONLY SUCH AMOUNTS WHICH ARE PAID OR PAYABLE FOR THE SERVICES PROVIDED BY THE ASSESSEE CAN FORM PART OF THE GROSS RECEIPTS FOR THE PURPOSES OF COMPUTATION OF THE GROSS INCOME UNDER SECTION 44 BB (L) READ WITH SECTION 44BB(2). 11. IT IS IN THIS CONTEXT THAT THE QUESTION ARISES WHETHER THE SERVICE TAX COLLECTED BY THE ASSESSEE AND PASSED ON TO THE GOVERNMENT FROM T HE PERSON TO WHOM IT HAS PROVIDED THE SERVICES CAN LEGITIMATELY BE CONSIDERE D TO FORM PART OF THE GROSS RECEIPTS FOR THE PURPOSES OF COMPUTATION OF THE ASS ESSEE'S 'PRESUMPTIVE INCOME' UNDER SECTION 44BB OF THE ACT? 12. IN CHOWRINGHEE SALES BUREAU (SUPRA) SALES TAX I II THE SUM OF RS. 32,986 WAS COLLECTED AND KEPT BY THE ASSESSEE IN A SEPARATE 'S ALES TAX COLLECTION ACCOUNT'. THE QUESTION CONSIDERED BY THE SUPREME COURT WAS: 'WHET HER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE SUM OF RS. 32,986 HAD BEEN VALIDLY EXCLUDED FROM THE ASSESSEE'S BUSINESS INCOME FOR THE RELEVANT ASSESSM ENT YEAR?'. HOWEVER, THERE THE ASSESSEE DID NOT DEPOSIT THE AMOUNT COLLECTED BY IT AS SALES TAX IN THE STATE EXCHEQUER SINCE IT TOOK THE STAND THAT THE STATUTOR Y PROVISION CREATING THAT LIABILITY UPON IT WAS NOT VALID. IN THE CIRCUMSTANCES, THE SU PREME COURT HELD THAT THE SALES TAX COLLECTED, AND NOT DEPOSITED WITH THE TREASURY, WOULD FORM PART OF THE ASSESSEE'S TRADING RECEIPT. 13. THE DECISION IN GEORGE OAKES (P) LTD. (SUPRA) W AS CONCERNED WITH THE CONSTITUTIONAL VALIDITY OF THE MADRAS GENERAL SALES (DEFINITION OF TURNOVER AND VALIDATION OF ASSESSMENTS) ACT, 1954 ON THE GROUND THAT THE WORD TURNOVER WAS DEFINED TO INCLUDE SALES TAX COLLECTED BY THE DEALE R ON INTER-STATE SALES. UPHOLDING THE VALIDITY OF THE SAID STATUTE THE SUPREME COURT HELD THAT 'THE EXPRESSION 'TURNOVER' MEANS THE AGGREGATE AMOUNT FOR WHICH GOODS ARE BOUG HT OR SOLD, WHETHER FOR CASH OR FOR DEFERRED PAYMENT OR OTHER VALUABLE CONSIDERA TION, AND WHEN A SALE ATTRACTS PURCHASE TAX AND THE TAX IS PASSED ON TO THE CONSUM ER, WHAT THE BUYER HAS TO PAY FOR THE GOODS INCLUDES THE TAX AS WELL AND THE AGGREGAT E AMOUNT SO PAID WOULD FALL WITHIN THE DEFINITION OF TURNOVER.' SINCE THE TAX C OLLECTED BY THE SELLING DEALER FROM THE PURCHASER WAS PART OF THE PRICE FOR WHICH THE G OODS WERE SOLD, THE LEGISLATURE WAS NOT INCOMPETENT TO ENACT A STATUTE PURSUANT TO ENTRY 54 IN LIST II MAKE THE TAX SO PAID A PART OF THE TURNOVER OF THE DEALER. 14. IN THE CONSIDERED VIEW OF THE COURT, BOTH THE A FOREMENTIONED DECISIONS WERE RENDERED IN THE SPECIFIC CONTEXTS IN WHICH THE QUES TIONS AROSE BEFORE THE COURT. IN OTHER WORDS THE INTERPRETATION PLACED BY THE COURT ON THE EXPRESSION 'TRADING RECEIPT' OR. 'TURNOVER' IN THE SAID DECISIONS WAS D ETERMINED BY THE CONTEXT. THE LATER DECISION OF THE SUPREME COURT IN CIT V. LAKSHMI MAC HINE WORKS (SUPRA) WHICH SOUGHT TO INTERPRET THE EXPRESSION 'TURNOVER' WAS A LSO IN ANOTHER SPECIFIC CONTEXT. THERE THE QUESTION BEFORE THE SUPREME COURT WAS 'WH ETHER EXCISE DUTY AND SALES TAX WERE INCLUDIBLE IN THE 'TOTAL TURNOVER' WHICH WAS T HE DENOMINATOR IN THE FORMULA CONTAINED IN SECTION 80 HHC (3) AS IT STOOD IN THE MATERIAL TIME?' THE SUPREME COURT CONSIDERED ITS EARLIER DECISION IN CHOWRINGHE E SALES BUREAU (SUPRA) AND ANSWERED THE QUESTION IN THE NEGATIVE. THE SUPREME COURT NOTED THAT FOR THE PURPOSES OF COMPUTING THE 'TOTAL TURNOVER' FOR THE PURPOSE OF SECTION 80 HHC (3) BROKERAGE, COMMISSION, INTEREST ETC. DID NOT FORM P ART OF THE BUSINESS PROFITS BECAUSE THEY DID NOT INVOLVE ANY ELEMENT OF EXPORT TURNOVER . IT WAS OBSERVED: 'JUST AS COMMISSION RECEIVED BY AN ASSESSEE IS RELATABLE TO EXPORTS AND YET IT CANNOT FORM PART OF 'TURNOVER', EXCISE DUTY AND SALES-TAX ALSO CANNOT FORM PART OF THE 'TURNOVER'.' THE OBJECT OF THE LEGISLATURE IN ENACTING SECTION 8 0 HHC OF THE ACT WAS TO CONFER A 4 ITA NOS.1236/M/13 & 3068/M/2014 HELIX ENERGY SOLUTI ONS GROUP INC . BENEFIT ON PROFITS ACCRUING WITH REFERENCE TO EXPOR T TURNOVER. THEREFORE, 'TURNOVER' WAS THE REQUIREMENT. 'COMMISSION, RENT, INTEREST ET C. DID NOT INVOLVE ANY TURNOVER.' IT WAS CONCLUDED THAT 'SALES TAX AND EXCISE DUTY' L IKE THE AFOREMENTIONED TOOLS LIKE INTEREST, RENT ETC. 'ALSO DO NOT HAVE ANY ELEMENT O F 'TURN OVER'. 15. IN CIT V. LAKSHMI MACHINE WORKS (SUPRA), THE SU PREME COURT APPROVED THE DECISION OF THE BOMBAY HIGH COURT IN CIT V. SUDARSH AN CHEMICALS INDUSTRIES LTD. (SUPRA) WHICH IN TURN CONSIDERED THE DECISION OF TH E SUPREME COURT IN GEORGE OAKES (P) LTD. (SUPRA). IN THE CONSIDERED VIEW OF THE COU RT, THE DECISION OF THE SUPREME COURT IN LAKSHMI MACHINES WORKS (SUPRA) IS SUFFICIE NT TO ANSWER THE QUESTION FRAMED IN THE PRESENT APPEAL IN FAVOUR OF THE ASSES SEE. THE SERVICE TAX COLLECTED BY THE ASSESSEE DOES NOT HAVE ANY ELEMENT OF INCOME AN D THEREFORE CANNOT FORM PART OF THE GROSS RECEIPTS FOR THE PURPOSES OF COMPUTING TH E 'PRESUMPTIVE INCOME' OF THE ASSESSEE UNDER SECTION 44 BB OF THE ACT. 16. THE COURT CONCURS WITH THE DECISION OF THE HIGH COURT OF UTTARAKHAND IN DIT V. SCHLUMBERGER ASIA SERVICES LTD (SUPRA) WHICH HELD T HAT THE REIMBURSEMENT RECEIVED BY THE ASSESSEE OF THE CUSTOMS DUTY PAID ON EQUIPME NT IMPORTED BY IT FOR RENDERING SERVICES WOULD NOT FORM PART OF THE GROSS RECEIPTS FOR THE PURPOSE OF SECTION 44 BB OF THE ACT. 17. THE COURT ACCORDINGLY, HOLDS THAT FOR THE PURPO SE OF COMPUTING PRESUMPTIVE INCOME OF THE ASSESSEE FOR THE PURPOSE OF SECTION 4 4BB OF THE ACT, THE SERVICE TAX COLLECTED BY THE ASSESSEE ON THE AMOUNT PAID BY IT FOR RENDERING SERVICES IS NOT TO BE INCLUDED IN THE GROSS RECEIVED IN TERM OF SECTION 4 4BB(2), READ WITH SECTION 44BB(1). THE SERVICE TAX IS NOT AN AMOUNT PAID OR PAYABLE, R ECEIVED OR DEMAND TO BE RECEIVED BY THE ASSESSEE FOR THE SERVICES RENDERED BY IT. TH E ASSESSEE ONLY COLLECTING SERVICE TAX FOR PASSING IT ON THE GOVERNMENT. 18. THE COURT FURTHER NOTES THAT THE POSITION HAS B EEN MADE EXPLICIT BY THE CBDT ITSELF INTO OF ITS CIRCULARS. IN CIRCULAR NO 4/2008 DATED 28 APRIL 2008 IT WAS CLARIFIED THAT SERVICE TAX PAID BY THE TENANT DOES NOT PERT AKE THE NATURE OF INCOME OF THE LANDLORD. THE LANDLORD ONLY ACTS AS A COLLECTING AG ENCY FOR THE GOVERNMENT FOR COLLECTION OF SERVICE TAX. THEREFORE, IT HAS BEEN D ECIDED THAT TAX DEDUCTION AT SOURCE UNDER SECTION 194 I OF INCOME TAX ACT WOULD BE REQ UIRED TO BE MADE ON THE AMOUNT OF RENT PAID/PAYABLE WITHOUT INCLUDING THE SERVICE TAX. IN CIRCULAR NO,1/2004, DATED 30 JANUARY 2014, IT HAS BEEN CLARIFIED THAT SERVICE TAX IS NOT TO BE INCLUDED IN THE CEASED FOR PROFESSIONAL OR TECHNICAL SERVICES AND N O TEDIOUS IS REQUIRED TO BE MADE ON THE SERVICE TAX COMPONENT UNDER SECTION 190 4J O F THE ACT. WE MAY NOTE THAT HONBLE DELHI HIGH COURT FURTHER H OLD THAT FOR THE PURPOSE OF COMPUTING THE PRESUMPTIVE INCOME FOR THE PURPOSE OF SECTION 44BB OF THE ACT, THE SERVICE TAX COLLECTED BY THE ASSESSEE ON THE AMOUNT PAID TO IT FOR RENDERING SERVICES IS NOT TO BE INCLUDED IN THE GROSS RECEIPT IN TERMS OF SU B SECTION 44BB(2) AND 44BB(1) OF THE ACT AND CONCLUDED THAT SERVICE TAX IS NOT AN AMOUNT PAID OR PAYABLE OR RECEIVED OR DEEMED TO BE RECEIVED BY THE ASSESSEE FOR THE SERVI CES RENDERED BY IT AND THE ASSESSEE IS ONLY COLLECTING THE SERVICE TAX FOR PASSING IT TO B E GOVERNMENT, THE HONBLE DELHI HIGH COURT ALSO CONSIDERED THE CIRCULAR NO. 4/2008 DATED 28.04.2008 OF THE CBDT WHICH CLARIFIES THAT THE SERVICE TAX PAID BY THE TENANT D OES NOT PERTAKE A NATURE OF THE INCOME OF THE LANDLORD AND THAT LANDLORD ONLY COLLECTING TAX FOR GOVERNMENT FOR COLLECTING INCOME TAX. IN OCEANEERING INTERNATIONAL GMBH (SUPRA), THE CO-O RDINATE BENCH OF THIS TRIBUNAL WHILE CONSIDERING THE ISSUE, WHETHER SERVICE TAX CO LLECTED BY THE ASSESSEE-COMPANY DOES 5 ITA NOS.1236/M/13 & 3068/M/2014 HELIX ENERGY SOLUTI ONS GROUP INC . NOT HAVE ANY ELEMENT OF INCOME AND CANNOT BE FORM P ART OF THE GROSS RECEIPT FOR THE PURPOSE OF COMPUTING THE PRESUMPTIVE INCOME OF THE ASSESSEE U/S. 44BB OF THE ACT AND AFTER CONSIDERING THE ALMOST IDENTICAL FACT ANSWERE D THE ISSUE IN FAVOUR OF THE ASSESSEE, THE CO-ORDINATE BENCH WHILE CONSIDERING THE ELEMENT OF INCOME HAS CONSIDERED THAT IN PARAGRAPH NO. 17 TO 19 OF ITS JUDGMENT WHICH IS REP RODUCED FOR BETTER APPRECIATION OF THE FACTS ARE AS UNDER: 17. THE COURT ACCORDINGLY HOLDS THAT FOR THE PURPO SES OF COMPUTING THE 'PRESUMPTIVE INCOME' OF THE ASSESSEE FOR THE PURPOS ES OF SECTION 44 BB OF THE ACT, THE SERVICE TAX COLLECTED BY THE ASSESSEE ON THE AMOUNT PAID T IT FOR RENDERING SERVICES IS NOT TO BE INCLUDED IN THE GROSS RECEIPTS IN TERMS O F SECTION 44 BB (2) READ WITH SECTION 44 BB (1). THE SERVICE TAX IS NOT AN AMOUNT PAID OR PAYABLE, OR RECEIVED OR DEEMED TO BE RECEIVED BY THE ASSESSEE FOR THE SERVI CES RENDERED BY IT. THE ASSESSEE IS ONLY COLLECTING THE SERVICE TAX FOR PASSING IT O N TO THE GOVERNMENT. 18. THE COURT FURTHER NOTES THAT THE POSITION HAS B EEN MADE EXPLICIT BY THE CBDT ITSELF IN TWO OF ITS CIRCULARS. IN CIRCULAR NO. 4/2 008 DATED 28TH APRIL 2008 IT WAS CLARIFIED THAT 'SERVICE TAX PAID BY THE TENANT DOES N'T PARTAKE THE NATURE OF 'INCOME' OF THE LANDLORD. THE LANDLORD ONLY ACTS AS A COLLEC TING AGENCY FOR GOVERNMENT FOR COLLECTION OF SERVICE TAX. THEREFORE, IT HAS BEEN D ECIDED THAT TAX DEDUCTION AT SOURCE) UNDER SECTIONS 194J OF INCOME TAX ACT WOULD BE REQUIRED TO BE MADE ON THE AMOUNT OF RENT PAID/PAYABLE WITHOUT INCLUDING THE S ERVICE TAX. 'IN CIRCULAR NO. 1/2014 DATED 13TH JANUARY 2014, IT HAS BEEN CLARIFI ED THAT SERVICE TAX IS NOT TO BE INCLUDED IN THE FEES FOR PROFESSIONAL SERVICES OR T ECHNICAL SERVICES AND NO TDS IS REQUIRED TO BE MADE ON THE SERVICE TAX COMPONENT UN DER SECTION 194J OF THE ACT. 19. THE QUESTION FRAMED, IS THEREFORE, ANSWERED IN THE NEGATIVE I.E. FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE.' 5. WE HAVE ALSO CONSIDERED THE ORAL AS WELL AS WRITTEN SUBMISSION FILED BY THE DR OF THE REVENUE. LD DR FOR REVENUE HEAVILY RELIED UPON A CA SE OF CIT VS. HALLIBURTON OFFSHORE SERVICES INC. REPORTED VIDE 300 ITR 265/ (2008) TAXMAN138(U KD) (SUPRA). WITH UTMOST REGARDS TO THE DECISION OF UTTRAKHAND H IGH COURT IN HALLIBURTON OFFSHORE SERVICES INC, THE ISSUE BEFORE HIGH COURT WAS REL ATED WITH THE REIMBURSEMENT OF FREIGHT AND TRANSPORTATION CHARGES, WHICH IS ENTIRELY DIFFE RENT FROM THE CLAIM(S) INVOLVED IN THE PRESENT CASE. THUS THE RATIO DECIDED BY HONOURABLE HIGH COURT OF THE UTTRAKHAND IS DIFFERENT. FURTHER THE DECISION IN THANA ELECTRICITY SUPPLY COMPANY (SUPRA), RENDERED BY HONBLE JURISDICTIONAL HIGH COURT (BOMBAY) RELIED BY LD DR HAS NO RELEVANCE IN THE PRESENT CASE. FURTHER THE PARA-MATERIA CONSIDERED BY THE CO-ORDINATE BENCH OF ITAT MUMBA I IN CASE OF CHINA SHIPPING CONTAINER (ITA NO. 8516/2010) DAT ED 23.08.2013 REPORTED VIZ. 38 TAXMAN.COM 2( MUMBAI-TRIB.) WAS DIFFERENT TO THE DI SPUTE INVOLVING THE PRESENT APPEAL. IN CHINA SHIPPING CONTAINER (SUPRA) THE COORDINATE BENCH OF THIS TRIBUNAL WAS CONSIDERING THE GROUND RELATED WITH SECTION 44B OF THE ACT, WHE REIN THE PRESENT CASE IS RELATED WITH SECTION 44BB OF THE ACT. 6 ITA NOS.1236/M/13 & 3068/M/2014 HELIX ENERGY SOLUTI ONS GROUP INC . 6. FROM THE ABOVE LEGAL DISCUSSION WE MAY CONCLUDE THA T BOTH THE GROUNDS RAISED IN THE PRESENT APPEAL ARE SQUARELY COVERED BY THE DECISION OF THE DELHI HIGH COURT IN MITCHELL DRILLING INTERNATIONAL PVT. LTD (SUPRA). THE RATIO OF DECISION OF UTTRAKHAND HIGH COURT IN HALLIBURTON OFFSHORE SERVICES INC ARE ENTIRELY DIFF ERENT. WE MAY ALSO REFER THE DECISION OF HONBLE APEX COURT IN CIT VERSUS VEGETABLE PRO DUCTS LTD (88 ITR 192) , WHEREIN IT WAS HELD THAT IF TWO REASONABLE CONSTRUCTIONS OF TA XING PROVISION ARE POSSIBLE, THE CONSTRUCTION WHICH FAVOURS THE ASSESSEE MUST BE ADO PTED. WITH UTMOST REGARDS TO THE DECISION OF UTTRAKHAND HIGH COURT, THE DECISION OF DELHI HIGH COURT IN MICHELLE DRILLING INTERNATIONAL PRIVATE LTD (SUPRA) DIRECTLY COVERS T HE ISSUE INVOLVED IN THE PRESENT APPEAL. HENCE, FOLLOWING THE DECISION OF THE LIVE HIGH COUR T IN MICHELLE DRILLING INTERNATIONAL PRIVATE LTD (SUPRA). WE ACCEPT THE APPEAL OF THE AS SESSEE ON BOTH THE GROUNDS RAISED IN THE PRESENT APPEAL. 7. IN APPEAL ITA NO. 3068/M/2014 FOR AY 2010-11, THE A SSESSEE HAS RAISED IDENTICAL GROUNDS OF APPEAL, AS WE HAVE ALREADY ALLOWED THE A PPEAL OF ASSESSEE FOR ASSESSMENT YEAR 2009 10, ON THE IDENTICAL GROUNDS. THUS, KEEPING IN VIEW THE PRINCIPLE OF CONSISTENCY THE PRESENT APPEAL IS ALSO ALLOWED. 8. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASSESS EE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 29 TH JUNE, 2016. SD/- SD/- ( B.R.BASKARAN ) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL M EMBER MUMBAI; DATED 29/06/2016 S.K.PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / (ASSTT.REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. !'# / GUARD FILE. $ //TRUE COPY/