SHENZHEN SHANDONG NUCLEAR POWER CONSTRUCTION COMPANY LTD, MUMBAI V. DCIT RG 4(2)(1), MUMBAI

ITA 2053/MUM/2015

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 9911 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 11 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-03-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: L
• Assessment Year: 2010-2011
• Appeal Filed On: 09-04-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Competent authority
• Section: 90

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH J MUMBAI BEFORE SHRI C.N. PRASAD (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 1050/AHD/2014 ASSESSMENT YEAR: 2009 - 10 & ITA NO. 2053/MUM/2015 ASSESSMENT YEAR: 2010 - 11 & ITA NO. 1052/MUM/2016 ASSESSMENT YEAR: 2011 - 12 & ITA NO. 1053/MUM/2016 ASSESSMENT YEAR: 2012 - 13 SHENZHEN SHANDONG NUCLEAR POWER CONSTRUCTION COMPANY LTD. ADD: C/O 2 ND FLOOR, 772, SHRIRAM BHUVAN, TILAK ROAD, OPP. BEST OFFICE DADAR TT, MUMBAI - 400014. VS. DY. COMMISSIONER OF INCOME TAX (INTERNATIONAL TAXATION) - RANGE 4(2)(1). ADD: ROOM NO. 120, 1 ST FLOOR, SCINDIA HOUSE N.M. ROAD, BALLARD ESTATE, MUMBAI - 400038. PAN NO. AAMCS1163P APPELLANT RESPONDENT ITA NO. 956/AHD/2014 ASSESSMENT YEAR: 2009 - 10 & ITA NO. 1613/MUM/2015 ASSESSMENT YEAR: 2010 - 11 & ITA NO. 1483/MUM/2016 ASSESSMENT YEAR: 2011 - 12 & ITA NO. 978/MUM/2016 ASSESSMENT YEAR: 2012 - 13 SHENZHEN SHANDONG NUCLEAR POWER ITA NOS. 1050/AHD/2014 & ORS 2 DY. COMMISSIONER OF INCOME TAX (INTERNATIONAL TAXATION) - RANGE 4(2)(1). ADD: ROOM NO. 120, 1 ST FLOOR, SCINDIA HOUSE N.M. ROAD, BALLARD ESTATE, MUMBAI - 400038. VS. SHENZHEN SHANDONG NUCLEAR POWER CONSTRUCTION COMPANY LTD. ADD: C/O 2 ND FLOOR, 772, SHRIRAM BHUVAN, TILAK ROAD, OPP. BEST OFFICE DADAR TT, MUMBAI - 400014. PAN NO. AAMCS1163P APPELLANT RESPONDENT ASSESSEE BY : MR. GIRISH DAVE, AR REVENUE BY : MR. ANAND MOHAN , CIT - DR DATE OF HEARING : 29 /03/2019 DATE OF PRONOUNCEMENT: 29/03/2019 ORDER PER BENCH THE DISPUTE HERE IS THE TAXABILITY OF OFFSHORE SERVICE AND SUPPLY CONTRACT AS WELL AS TAXABILITY OF ONSHORE CONTRACT. 2. BEFORE US, THE LD. COUNSEL OF THE ASSESSEE FILES A WRITTEN SUBMISSION REQUESTING FOR WITHDRAWAL OF GROUNDS OF APPEAL ON TAXABILITY OF OFFSHORE SERVICE AND SUPPLY CONTRACT, STATING THE FOLLOWING: RE : SHENZHEN SHANDONG NUCLEAR POWER CONSTRUCTION CO. LTD. (SSNP) SUB: REGARDING WITHDRAWN OF GROUNDS OF TAXABILITY OF OFFSHORE SERVICE AND OFFSHORE SUPPLY CONTRACT IN RELATION TO APPEAL FILED BEFORE YOUR GOODSELF BEARING ITA NO. 1050/AHD/2014 FOR AY 2009 - 10, 2053/MUM/2015 FOR AY 2010 - 11 & 1052/MUM/2016 FOR AY 2011 - 12. THIS IS IN CONNECTION TO THE ABOVE CAPTIONED SUBJECT, WHEREIN APPEAL HAS BEEN FILED BY SSNP FOR AY 2009 - 10, AY 2010 - 11 & 2 011 - 12 IN RELATION TO TAXABILITY OF OFFSHORE SERVICE AND OFFSHORE SUPPLY CONTRACT BEFORE THE INCOME TAX APPELLATE TRIBUNAL. SHENZHEN SHANDONG NUCLEAR POWER ITA NOS. 1050/AHD/2014 & ORS 3 SSNP HAD FILED APPLICATION UNDER MUTUAL AGREEMENT PROCEDURE (MAP) FOR OFFSHORE SERVICE AND OFFSHORE SUPPLY CONTRACT BEFORE THE CO MPETENT AUTHORITY OF CHINA IN ACCORDANCE WITH ARTICLE 25 OF CHINA INDIA DOUBLE TAXATION AGREEMENT (DTA). THE COMPETENT AUTHORITY OF INDIA AND CHINA AFTER HAVING EXAMINED THE FACTS OF THE CASE AND ISSUE S INVOLVED THEREIN HAVE ARRIVED AT THE FOLLOWING RESOL UTION IN TERMS OF ARTICLE 25 OF INDIA - CHINA DOUBLE TAXATION AVOIDANCE AGREEMENT READ WITH SECTION 90 OF INCOME TAX ACT, 1961 AND RULE 44H OF INCOME - TAX RULES, 1962: (I) INCOME FROM OFF - SHORE SUPPLY CONTRACT IS TAXABLE ONLY IN CHINA; AND (II) RECEIPTS FRO M OFF - SHORE SERVICE CONTRACT IS TAXABLE IN INDIA ON GROSS BASIS AT THE TAX RATE OF 10% WE HAVE ENCLOSED COPY OF MAP RESOLUTION ARRIVED AT BY BOTH THE COMPETENT AUTHORITIES FOR YOUR KIND REFERENCE. IN VIEW OF THE SAME, WE WOULD LIKE TO INFORM YOUR GOODSELF THAT SSNP ACCEPTS THE MAP RESOLUTION PASSED BY THE COMPETENT AUTHORITIES OF INDIA AND CHINA IN TERMS OF ARTICLE 25 OF THE INDIA CHINA DOUBLE TAXATION AVOIDANCE AGREEMENT READ WITH SECTION 90 OF THE INCOME TAX ACT, 1961 AND RULE 44H OF THE INCOME TAX RULE, 1962. IN CONNECTION TO THE ABOVE, WE WOULD LIKE TO INFORM THE HONBLE MEMBERS THAT SSNP WITHDRAWS THE GROUNDS PERTAINING TO TAXABILITY OF OFFSHORE SERVICES AND OFFSHORE SUPPLY CONTRACT IN VIEW OF AC CEPTANCE OF THE MAP RESOLUTION. 2.1 IN SIMILAR VEIN, THE LD. COUNSEL REQUESTS FOR WITHDRAWAL OF GROUNDS OF APPEAL ON TAXABILITY ON ONSHORE CONTRACT, WHICH IS PRODUCED BELOW: RE : SHENZHEN SHANDONG NUCLEAR POWER CONSTRUCTION CO. LTD. (SSNP) SHENZHEN SHANDONG NUCLEAR POWER ITA NOS. 1050/AHD/2014 & ORS 4 SUB: RE GARDING WITHDRAWN OF GROUNDS OF TAXABILITY OF ONSHORE CONTRACT IN RELATION TO APPEAL FILED BEFORE YOUR GOODSELF BEARING ITA NO. 1050/AHD/2014 FOR AY 2009 - 10, 2053/MUM/2015 FOR AY 2010 - 11 & 1052/MUM/2016 FOR AY 2011 - 12 & ITA NO. 1053/MUM/2016 FOR AY 2012 - 13 . THIS IS IN CONNECTION TO THE ABOVE CAPTIONED SUBJECT, WHEREIN APPEAL HAS BEEN FILED BY SSNP FOR AY 2009 - 10, AY 2010 - 11, 2011 - 12 & 2012 - 13 IN RELATION TO TAXABILITY OF ONSHORE CONTRACT BEFORE THE TRIBUNAL. SSNP HAD FILED APPLICATION UNDER MUTUAL AGREEMEN T PROCEDURE (MAP) FOR ONSHORE CONTRACT BEFORE THE COMPETENT AUTHORITY OF CHINA IN ACCORDANCE WITH ARTICLE 25 OF CHINA INDIA DOUBLE TAXATION AGREEMENT (DTA). THE COMPETENT AUTHORITIES OF INDIA AND CHINA AFTER HAVING EXAMINED THE FACTS OF THE CASE AND ISS UES INVOLVED THEREIN HAVE ARRIVED AT THE FOLLOWING RESOLUTION IN TERMS OF ARTICLE 25 OF INDIA - CHINA DOUBLE TAXATION AVOIDANCE AGREEMENT READ WITH SECTION 90 OF INCOME TAX ACT, 1961 AND RULE 44H OF INCOME - TAX RULES, 1962. THE PROFITS/NET INCOME OF PROJECT O FFICE/PE TAXABLE IN INDIA FROM ONSHORE CONTRACTS IS AS UNDER: ASSESSMENT YEARS PROFITS/NET INCOME TAXABLE IN INDIA FROM ONSHORE CONTRACTS (RS.) 2009 - 10 2,34,07,926/ - 2010 - 11 7,06,68,203/ - 2011 - 12 2,31,42,599/ - 2012 - 13 67,82,568 / - IN VIEW OF THE SAME, WE WOULD LIKE TO INFORM YOUR GOODSELF THAT SSNP ACCEPTS THE MAP RESOLUTION PASSED BY THE COMPETENT AUTHORITIES OF INDIA AND CHINA IN TERMS OF ARTICLE 25 OF THE INDIA CHINA DOUBLE TAXATION AVOIDANCE AGREEMENT READ WITH SECTION 90 OF THE INCOME TAX ACT, 1961 AND RULE 44H OF THE INCOME TAX RULES 1962. SHENZHEN SHANDONG NUCLEAR POWER ITA NOS. 1050/AHD/2014 & ORS 5 WE HAVE ENCLOSED COPY OF THE MAP RESOLUTION ARRIVED AT BY BOTH THE COMPETENT AUTHORITIES FOR YOUR KIND REFERENCE. IN CONNECTION TO THE ABOVE, WE WOULD LIKE TO INFORM THE HON BLE M EMBERS THAT SSNP WITHDRAWS THE GROUNDS PERTAINING TO TAXABILITY OF ONSHORE CONTRACT IN VIEW OF ACCEPTANCE OF THE MAP RESOLUTION. 3. THE LD. DR FAIRLY AGREES WITH THE ABOVE REQUEST OF THE ASSESSEE IN VIEW OF MAP RESOLUTION ARRIVED AT BY BOTH THE COMPETENT AUTHORITIE S OF INDIA AND CHINA. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. IN VIEW OF THE MAP RESOLUTION ARRIVED AT BY BOTH THE COMPETENT AUTHORITIES OF INDIA AND CHINA AS EVIDENT FROM F. NO. 480/01/2015 - SO/FT&TR - II(1)/374 A ND F. NO. 500/10/2013 - SO/FT&TR - II(1) /237 SIGNED BY THE JOINT SECRETARY (FT&TR - II), COMPETENT AUTHORITY OF INDIA , WE DISMISS THE ABOVE APPEALS AS WITHDRAWN . ORDER PRONOUNCED IN THE OPEN COURT ON 29/03/2019. SD/ - SD/ - ( C.N. PRASAD ) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 29/03/2019 RAHUL SHARMA, SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// (SR. PRIVATE SECRETARY) ITAT, MUMBAI