M/s Eni SpA, Gurgaon V. DCIT (International Taxation), New Delhi

ITA 395/DEL/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2560 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 1 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 27-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G K DHALL
• Keywords: Business income; Opportunity of being heard; Rule of consistency
• Section: 263; 28; 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : A , NEW DELHI BEFORE SHRI H.S. SIDHU , JUDICIAL M EMBER AND SH RI O.P. KANT , ACCOUNTANT MEMBER ITA NO .395 /DE L/ 2016 ASSESSMENT YEAR : 2011 - 12 M/S. ENI SPA, C/O - BMR & ASSOCIATES, 22 ND FLOOR, BUILDING NO.5, TOWER - A, CYBER CITY, DLF PHASE - III, GURGAON VS. DCIT (INTERNATIONAL TAXATION), CIRCLE - GURGAON, NEW DELHI PAN : AACCE3464B (APPELLANT) (RESPONDENT) APPELLANT BY SHRI VISHAL KALRA , ADV. RESPONDENT BY SHRI G.K. DHALL, CIT(DR) ORDER PER O.P. KANT, A .M. : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE FINAL ASSESSMENT ORDER DATED 27/11/2015 PASSED BY THE DEPUTY COMMISSIONER OF INCOME - TAX, CIRCLE - GURGAON , INTERNATIONAL T AXATION [HEREINAFTER REFERRED TO AS THE ASSESSING OFFICER ] FOR ASSESSMENT YEAR 2011 - 12 IN COMPLIANCE TO THE DIRECTION OF THE LD. D ISPUTE R ESOLUTION PANEL (DRP). THE GROUNDS OF APPEAL RAISED BY TH E ASSESSEE ARE REPRODUCED AS UNDER: DATE OF HEARING 28.02.2019 DATE OF PRONOUNCEMENT 07.03.2019 2 ITA NO.395/DEL/2016 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ASSESSING OFFICER/ DISPUTE RESOLUTION PANEL ( AO / DRP ) ERRED IN COMPLETING THE ASSESSMENT AT AN INCOME OF INR 59,081,838, AS AGAINST THE INCOME OF INR 23,632,735, RETURNED BY THE APPELLANT. 2. DISALLOWANCE OF CLAIM OF SECTION 44BB OF THE ACT 2.1 THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE AO / DRP HAS ERRED IN HOLDING THAT PROVISIONS OF SECTION 44BB OF THE INCOME TAX ACT, 1961 ( ACT ) ARE NOT APPLICABLE TO THE SERVICES RENDERED BY THE APPELLANT TO ENI INDIA. 2.2 THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN , THE AO/ DRP HAS ERRED IN NOT FOLLOWING THE DECISION OF SUPREME COURT IN THE CASE OF ONGC VS CIT [(2015) (59 TAXMANN.COM) 1]. 2.3 THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE AO / DRP HAS ERRED IN HOLDING THAT THE CONSIDERATION RECEIVED BY THE APPELLANT QUALIFY AS FEE FOR TECHNICAL SERVICES ( FTS ) AS DEFINED IN SECTION 9(1 )(VII) OF THE ACT. 2.4 WITHOUT PREJUDICE TO THE ABOVE, THE AO / DRP HAS ERRED IN NOT APPRECIATING THE FACT THAT EVEN IF INCOME EARNED BY APPELLANT IS CONSIDERED IN THE NATURE OF FTS, THE PROVISIONS OF SECTION 44BB(1) WOULD STILL APPLY AS THE INCOME WAS EARNED BY APPELLANT F ROM ANOTHER NON - RESIDENT AND THEREFORE THE PROVISO TO SECTION 44BB(1) WOULD NOT APPLY. 2.5 THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE AO / DRP HAS ERRED IN COMPUTING INCOME ARBITRARILY AT DEEMED PROFIT RATE OF 25 PERCENT OF GROSS RECE IPTS AS BUSINESS INCOME WITHIN THE PROVISIONS OF SECTION 28 TO 43C OF THE ACT, WHICH IS BASED ON MERE CONJECTURES AND SURMISES. 2.6 THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE AO / DRP HAS ERRED IN NOT ACCEPTING THE FACT THAT SERVICES WERE RENDERED BY THE APPELLANT TO ENI INDIA ON A COST TO COST BASIS AND THUS NO ACTUAL PROFIT WAS EARNED BY THE APPELLANT FROM RENDERING OF SUCH SERVICES. 2.7 THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE AO HAS ERRED IN NOT APPLYING THE RULE OF CONSISTENCY BY NOT FOLLOWING HIS EARLIER YEAR S ORDER (AY 2009 - 10) IN THE CASE OF APPELLANT WHEREIN THE CLAIM OF SECTION 44BB OF THE ACT WAS ACCEPTED ON SIMILAR FACTS AND CIRCUMSTANCES. 3 INCORRECT CREDIT OF TAXES AND LEVY OF INTEREST 3 ITA NO.395/DEL/2016 3.1 THAT O N THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE AO HAS ERRED IN ONLY GRANTING A CREDIT OF TAXES AMOUNTING TO INR 7,850,206, AS AGAINST A CREDIT OF INR 10,479,115 CLAIMED IN THE RETURN OF INCOME. 3.2 THAT ON THE FACTS AND CIRCUMSTANCES OF THE CAS E AND IN LAW, THE AO HAS ERRED IN LEVYING INTEREST AMOUNTING TO INR 556,212 UNDER SECTION 234D OF THE ACT, DESPITE THE FACT THAT NO REFUND WAS GRANTED TO THE APPELLANT. 3 .3 THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE AO / DRP HAS ERRED IN P ROPOSING TO APPLY THE APPLICABLE INTEREST AS PER THE PROVISIONS OF THE ACT AND INITIATING PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT IN THE CASE OF THE APPELLANT. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR WITHDRAW ANY GROUND OF APPEAL AT OR BEFORE THE TIME OF HEARING. 2. B RIEFLY STATED FACTS OF THE CASE ARE THAT, THE ASSESSEE IS AN COMPANY INCORPORATED UNDER THE LAWS OF THE ITALY. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE WAS A NON - RESIDENT AND EARNED REVENUE FROM PROVIDING SERVICES TO M/S. ENI INDIA LTD , A COMPANY INVOLVED IN PROSPECTING, EXTRACTION AND PRODUCTION OF MINERAL OIL. THE ASSESSEE FILED RETURN OF INCOME ON 29/11/2011 DECLARING TOTAL INCOME OF RS. 2,36,32,735/ - . THE ASS ESSEE OFFERED THE INCOME UNDER THE PRESUMPTIVE S CHEME PROVIDED UNDER SECTION 44BB OF THE ACT AT THE RATE OF 10% OF THE REVENUE OF RS. 23,63,27,353/ - . THE CASE WAS SELECTED FOR SCRUTINY AND NOTICE UNDER SECTION 143(2) OF THE INCOME - TAX A CT, 1961 (IN SHORT T HE A CT ) WAS ISSUED AND COMPLIED WITH. ACCORDING TO THE ASSESSING OFFICER T HE PROVISIONS OF THE SECTION 44 BB OF THE A CT ARE NOT APPLICABLE AND HE COMPUTED THE INCOME AT RS. 5,90,81,838/ - BY CONSIDERING INCOME OF THE ASSESSEE AT DEEMED PROFIT RATE OF 25% ON G ROSS RECEIPT OF FEE FOR TECHNICAL S ERVICES (FTS) AS BUSINESS INCOME WITHIN THE PROVIS ION OF SECTION 28 TO 43 OF THE A CT. ON 4 ITA NO.395/DEL/2016 BEING OBJECTION FILED BY THE ASSESSEE BEFORE THE LD. DRP, IT IS HELD THAT THE ASSESSEE ITSELF HAS NOT UNDERTAKEN ANY EXPLORATION PRO JECT BUT IT HAS PROVIDED SERVICES TO THE COMPANY WHO HAD TAKEN THE EXPLORATION PROJECT. THUS , ACCORDING TO THE LD. DRP, PROVISIONS OF SECTION 44BB ARE NOT APPLICABLE AND THE SERVICES RENDERED ARE IN THE NATURE OF RECEIPT AS FEE FOR TECHNICAL SERVICES AND S HOULD BE TAXABLE UNDER THE PROVISIONS OF EITHER SECTION 44DA OR SECTION 115A OF THE A CT. THE ASSESSEE IS AGGRIEVED WITH THE ABOVE DIRECTION OF THE LD. DRP, INCORPORATED BY THE ASSESSING OFFICER IN THE IMPUGNED ORDER. 3. THE GROUND NO. 1 OF THE APPEAL IS B EING GENERAL IN NATURE, WE ARE NOT ADJUDICATING UPON SPECIFICALLY AND DISMISSED AS INFRUCTUOUS . 3. IN GROUND NO. 2 , THE ASSESSEE HAS RAISED THE ISSUE OF DISALLO WANCE OF CLAIM UNDER SECTION 44BB OF THE A CT. 3.1 WITH REFERENCE TO GROUND , THE LD. COUNSEL OF THE ASSESSEE BEFORE US , SUBMITTED THAT ISSUE IN DISPUTE IN THE INSTANT CASE IS COVERED BY THE DECISION OF THE T RIBUNAL IN IT A N O. 1669/12/2015 IN THE CASE OF THE ASSESSEE ITSELF FOR ASSESS MENT YEAR 2010 - 11, WHEREIN THE T RIBUNAL HAS HELD THAT ASSESSEE IS EN T ITLED TO BENEFIT OF SECTION 44 BB OF THE A CT. 3.2 THE LD. DR , ON THE OTHER HAND , RELIED ON THE ORDER OF THE LOWER AUTHORITIES. 3.3 WE HAVE HEARD THE RIVAL SUBMISSION S AND PERUSED THE RELEVANT MATERIAL OF RECORD. THE DISPUTE BETWEEN THE PARTIES IS ON THE IS SUE WHETHER THE SERVICES RENDERED BY THE ASSESSEE TO M/S ENI SPA INDIA LTD . QUALIFY FOR ASSESSMENT UNDER THE PROVISION OF SEC TION 44BB OF THE A CT. THE SERVICES PROVIDED BY THE ASSESSEE IN 5 ITA NO.395/DEL/2016 ASSESSMENT YEAR 2010 - 11 ARE IDENTICAL TO THE SERVICES PROVIDED IN THE YEAR UNDER CONSIDERATION. THERE IS NO DISPUTE ON THIS ISSUE BETWEEN THE PARTIES. WE HAVE NOTE D TH AT THE COORDINATE BENCH OF THE T RIBUNAL IN IT A NO. 1669/D EL/2015 IN THE CASE OF THE ASSESSEE FOR ASSESSMENT YEAR 2010 - 11 HAS ADJUDICATED THE ISSUE IN DISPU TE AS UNDER: 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE GIVEN THOUGHTFUL CONSIDERATION TO THE ORDERS OF THE AUTHORITIES BELOW. WE HAVE CAREFULLY PERUSED THE SERVICE AGREEMENT WHICH IS EXHIBITED AT PAGES 218 TO 262 OF THE PAPER BOOK. THE BONE OF CONTENTION IS THAT THE ASSESSING OFFICER DID NOT CONSIDER THE CASE OF THE ASSESSEE U/S 44BB OF THE ACT ON THE GROUND THAT SECTION 44BB OF THE ACT IS NOT APPLICABLE TO SECOND LEVEL CONTRACTORS. A SIMILAR ISSUE WAS CONSIDERED BY THE CO - 7 ORDINATE BENCH IN THE CASE OF TECHNIP UK LTD [SUPRA]. THE RELEVANT FINDINGS READ AS UNDER: 17. THE SECOND CONTENTION OF THE REVENUE IS THAT SECTION 44BB OF THE ACT IS NOT APPLICABLE TO SECOND LEVEL CONTRACTORS. 18. A PLAIN READING OF SECTION 44BB OF THE ACT ENVISAGES A NON - RESIDENT SERVIC E PROVIDER NOT MERELY ENGAGED IN THE BUSINESS OF PROVIDING SERVICES OR FACILITIES IN CONNECTION WITH PROSPECTING, EXTRACTION OR PRODUCTION OF MINERAL OILS BUT PROVIDING SUCH SERVICES / FACILITIES TO A PERSON / ENTITY ENGAGED IN SUCH ACTIVITIES. THE SAID SE CTION DOES NOT DISTINGUISH BETWEEN THE MAIN CONTRACTOR OR A SUB - CONTRACTOR. IF THE INTENTION OF THE LEGISLATURE WAS TO RESTRICT THE BENEFIT OF SECTION 44BB OF THE ACT TO THE MAIN CONTRACTOR ONLY, THEN, THE WORDS AFTER THE ASSESSEE ENGAGED IN THE BUSINESS OF PROVIDING SERVICES OR FACILITIES IN CONNECTION THEREWITH OR SUPPLYING PLANT AND MACHINERY ON HIRE' OUGHT TO HAVE BEEN OMITTED. HENCE, WHERE THE PROVISION DOES NOT CREATE ANY DISCRIMINATION BETWEEN THE PERSON WHO ACTUALLY DOES THE ACTIVITY OF PROSPECT ING FOR OR EXTRACTION OR PRODUCTION, AND THE PERSON WHO RENDERS SERVICES IN CONNECTION THEREWITH, THE SECTION CANNOT BE NARROWLY CONSTRUED. 19. IT WOULD NOT BE OUT OF PLACE TO REFER TO THE DECISION OF THE COORDINATE BENCH IN ASSESSEE S OWN CASE IN ITA N O. 4284/DEL/2013. THOUGH THE SAID DECISION OF THE CO - ORDINATE BENCH WAS IN RESPECT OF THE ORDER FRAMED U/S 263 OF THE ACT, BUT THE FINDINGS ARE VERY MUCH RELEVANT TO THE CASE IN HAND. THE RELEVANT EXTRACT OF THE SAID DECISION OF THE COORDINATE BENCH READS AS UNDER: 6 ITA NO.395/DEL/2016 IN THE INSTANT CASE, GROUND FOR WHICH THE DIT ASSUMED JURISDICTION U/S 263 OF THE ACT ARE THAT PROVISIONS OF SECTION 44BB OF THE ACT DOES NOT COVER SECOND LEG CONTRACT AND THE SAID SECTION IS NOT APPLICATION TO SUB - CONTRACTS ENGAGED IN PROVIDI NG TECHNICAL SERVICES TO CONTRACTORS FOR THOSE UNDERTAKING PROJECTS IN OIL EXPLORATION, THAT INCOME RECEIVED BY THE ASSESSEE WAS CLEARLY COVERED U/S 44DA OF THE ACT AND HENCE NOT TAXABLE U/S 44BB OF THE ACT AND THAT THE A.O HAS NOT TAXED OUT COUNTRY RECEIP TS AND THAT CONTRACT WAS A COMPOSITE ONE AND THE A.O IN THE ORDER DID NOT DISCUSS THE TAXABILITY OF THE TOTAL RECEIPTS WITH REGARD TO THE ADMITTED PE OF THE ASSESSEE IN INDIA. 57. FROM THE VARIOUS DECISIONS FILED BY THE ASSESSEE IN THE PAPER BOOK, WE FIND IT HAS BEEN HELD IN VARIOUS DECISIONS THAT SECTION 44BB OF THE ACT ARE APPLICABLE TO SECOND LEVEL CONTRACTOR/SUB - CONTRACTOR. WE FIND THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF LOUIS DREYFUS ARMATEURES SAS [SUPRA] HAS HELD AS UNDER: 60. A READING OF THE AFORESAID JUDICIAL PRECEDENCE CLARIFY THAT SEC. 44BB DOES NOT DISTINGUISH BETWEEN THE MAIN CONTRACTOR OR A SUB - CONTRACTOR AS HAS BEEN INTERPRETED BY THE AO AND THE DRP. THE CONCLUSIONS OF THE A.0 AND THE DRP ARE ERRONEOUS ON ACCOUNT OF THE REASON THAT THE PROVISION CLEARLY ENVISAGES THE NON - RESIDENT ASSESSEE TO BE ENGAGED IN THE BUSINESS OF SUPPLYING PLANT AND MACHINERY ON HIRE. THE ONLY CONDITION IMPOSED, TO SAY. IS THAT SUCH PLANT AND MACHINERY HAS TO BE USED OR SHOULD BE USED FOR THE PURPOSES OF PRO SPECTING OR EXTRACTION OR PRODUCTION OF MINERAL OILS. THE 9 LANGUAGE IN SECTION 44BB IN OUR VIEW IS CLEAR SO ALSO THE LEGISLATIVE INTENTION. IT IS A TRITE LAW THAT HAS ALREADY HELD BY THE HON'BLE SUPREME COURT IN B. PARMANNAND V.MOHAN KOIKAL [2011] 4 SCC 2 66 THAT 'THE LANGUAGE EMPLOYED IN A STATUTE IS THE DETERMINATIVE FACTOR OF THE LEGISLATIVE INTEND. IT IS WELL SETTLED PRINCIPLE OF LAW THAT THE COURT CANNOT READ ANYTHING INTO A STATUTORY VISION WHICH IS PLAN AND UNAMBIGUOUS'. IF THE LEGISLATURES INTENTION AS CONTENDED BY THE REVENUE WAS TO RESTRICT THE BENEFIT OF SEC. 44BB ONLY TO THE MAIN CONTRACTOR OR ONGC, THEN THE WORDS AFTER 'THE ASSESSEE ENGAGED IN THE BUSINESS OF SUPPLYING PLANT AND MACHINERY ON HIRE' OR 'PROVIDING SERVICES OR FACILITIES' OUGHT TO E BEEN OMITTED. HENCE, WHERE THE PROVISION DOES NOT CREATE ANY DISCRIMINATION BETWEEN THE PERSON WHO ACTUALLY DOES THE ACTIVITY OF PROSPECTING FOR OR EXTRACTION OR PRODUCTION, AND THE PERSON WHO SUPPLIES THE PLANTS AND MACHINERY, THE NARROW INTERPRETATION O F THE PROVISION IS THUS NOT PERMITTED. THE BASIC CONDITION TO SATISFIED IN THE SAID PROVISION IS THAT THE PLANT OR MACHINERY SUPPLIED OR LENTED ON HIRE BY THE ASSESSEE, NON - RESIDENT SHOULD BE USED IN THE PROSPECTING FOR OR EXTRACTION OR PRODUCTION OF MINER ALS OILS OR WHERE EQUIPMENT HAS BEEN SUPPLIED, SUCH EQUIPMENT SHOULD HAVE BEEN USED FOR THE PURPOSES OF PROSPECTING FOR OR EXTRACTION OR FICTION OF MINERAL OILS. HAVING REGARD TO THE ABOVE WE ARE OF THE CONSIDERED OPINION THAT THE 7 ITA NO.395/DEL/2016 FETTER ASSUMED BY AUTHORI TIES BELOW WHILE INTERPRETING THE PROVISIONS OF SECTION 44BB OF THE ACT ARE MANIFESTLY IT AND THERE IS NOTHING IN THE SAID PROVISION SO AS TO DISENTITLE A SUB - CONTRACTOR FROM INVOKING THE SAID PROVISION. ACCORDINGLY WE DO NOT FIND ANY FAULT IN THE CLAIM OF THE ASSESSEE THAT REVENUES RECEIVED UNDER THE CHARTER AGREEMENTS WITH CGG FOR PROVIDING TWO SEISMIC SURVEY VESSELS 10 ARE IN CONSIDERATION WITH PROSPECTING EXTRACTIONS OR PRODUCTION OF MINERAL OILS AND THEREFORE TAXABLE U/S 44BB OF THE ACT. 58. THE VAR IOUS OTHER DECISIONS RELIED ON BY THE LD. COUNSEL FOR THE ASSESSEE ALSO SUPPORT THE PROPOSITION THAT THE PROVISION OF SECTION 44BB OF THE ACT ARE HELD TO BE APPLICABLE TO THE TAX PAYER BEING A SECOND LEG CONTRACTOR/SUB - CONTRACTOR. FURTHER, IT HAS BEEN HELD IN VARIOUS DECISIONS INCLUDING THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF DIT VS. OHM LTD. REPORTED IN 352 ITR 406 THAT THE SERVICES RENDERED IN RELATION TO EXTRACTION AND PRODUCTION OF MINERAL OIL ARE TAXABLE U/S 44BB OF THE ACT. 9. R ESPECTFULLY FOLLOWING THE FINDINGS OF THE CO - ORDINATE BENCH, WE HOLD THAT THE ASSESSEE S CASE COMES WITHIN THE PURVIEW OF SECTION 44BB OF THE ACT. 10. IN SO FAR AS THE SERVICES RENDERED BY THE ASSESSEE MAKING IT ELIGIBLE TO COME WITHIN THE PURVIEW OF SECTION 44BB OF THE ACT, IT HAS BEEN DECIDED BY THE HON'BLE SUPREME COURT IN THE CASE OF ONGC [SUPRA] WHEREIN THE HON'BLE SUPREME COURT HELD THAT EACH C ONTRACT MUST BE CONSIDERED TO FIND THE BRIEF DESCRIPTION OF THE WORKS COVERED UNDER EACH CONTRACT. THE HON'BLE SUPREME COURT SET OUT THE DETAILS OF 11 THE WORK COVERED ELIGIBLE TO FIT IN THE PROVISIONS OF SECTION 44BB OF THE ACT. THE RELEVANT WORK READ AS UNDER: 16. GEOLOGICAL STUDY OF THE AREA AND ANALYSIS OF SEISMIC INFORMATION REPORTS TO DESIGN 2 DIMENSIONAL SEISMIC SURVEYS 34. FEASIBILITY STUDY OF RIG TO ASSESS ITS REMAINING USEFUL LIFE AND TO CARRY OUT STRUCTURAL ALTERATIONS. 35. ENGINEERING ANAL YSIS OF RIG. 36. IMPARTING TRAINING ON CASED HOLD PRODUCTION LOG EVALUATION AND ANALYSIS. 37. TRAINING ON WELL CONTROL. 38. TRAINING ON IMPLEMENTATION OF SIX SIGMA CONCEPTS. 39. TRAINING ON IMPLEMENTATION OF SIX SIGMA CONCEPTS. 40. TRAINING ON DRILLIN G PROJECT MANAGEMENT. 41. TRAINING IN SAFETY RATING SYSTEM AND ASSISTANCE IN DEVELOPMENT AND AUDIT OF SAFETY MANAGEMENT SYSTEM. 42. TO DEVELOP TECHNICAL SPECIFICATION FOR 3D SEISMIC API MODULES OF WORK AND TO PREPARE BID PACKAGES. 43. SUPPLY SUPERVISION AND INSTALLATION OF SOFTWARE WHICH IS USED FOR ANALYSIS OF FLOW RATE OF MINERAL OIL TO DETERMINE RESERVOIR CONDITIONS. 8 ITA NO.395/DEL/2016 44. SUPPLY, INSTALLATION AND FAMILIARIZATION OF SOFTWARE FOR PROCESSING SEISMIC DATA. 11. IN THE LIGHT OF THE ABOVE, A PERUSAL OF TH E SERVICE CONTRACT MENTIONED ELSEWHERE CLEARLY SHOWS THAT THE APPELLANT HAD RENDERED SIMILAR SERVICES TO ENI INDIA LTD FOR WHICH SERVICES IT RECEIVED THE REVENUE WHICH IT OFFERED U/S 44BB OF THE ACT. CONSIDERING THE FACTS OF THE CASE IN TOTALITY, IN THE LI GHT OF JUDICIAL DECISIONS DISCUSSED HEREINABOVE, WE ARE OF THE OPINION THAT THE ASSESSEE S CASE COMES WITHIN THE PURVIEW OF SECTION 44BB OF THE ACT AND ITS INCOME SHOULD BE TAXED ACCORDINGLY. FIRST SUBSTANTIVE GRIEVANCE IS ACCORDINGLY ALLOWED. 3.4 RESPECTFULLY, FOLLOWING THE ABOVE DECISION WE ARE OF THE OPINION THAT R EVENUE EARNED FROM THE SERVICES RENDERED DURING THE YEAR UNDER CONSIDERATION FALLS WITHIN THE P URVIEW OF SECTION 44BB OF THE A CT AND THE INCOME SHOULD BE TAXED ACCORDINGLY AS P ER THE PR OVISIONS OF SECTION 44BB OF THE A CT. THE GROUND OF THE APPEAL IS ACCORDINGLY ALLOWED. 4. IN GROUND NO. 3.1 THE ASSESSEE HAS RAISED THE ISSUE OF NOT PROVIDING CREDIT OF THE TAXES CLAIMED IN THE RETURN OF INCOME. IN GROUND NO. 3.2, THE ASSESSEE HAS RAISED TH E ISSUE OF LEVYING INTEREST UNDER SECTION 234D OF THE A CT ON THE PREMISE THAT REFUND WAS GRANTED TO THE ASSESSEE. B UT BEFORE US , THE LD. COUNSEL OF ASSESSEE CLAIM ED THAT NO REFUND WAS GRANTED TO THE ASSESSEE. IN OUR OPINION, BOTH THE ISSUE OF CREDIT OF TH E TAXES PAID AN D INTEREST UNDER SECTION 234D CORRESPONDING TO THE QUANTUM OF REFUND GRANTED , ARE MATTER OF THE VERIFICATION AT THE END OF THE ASSESSING OFFICER . A CCORDINGLY , WE RESTORE THE ISSUE S TO THE FILE OF THE ASSESSING OFFICER FOR VERIFYING FROM REC ORDS AND DECIDE ACCORDINGLY AFTER PROVIDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN THE RESULT BOTH THESE GROUNDS ARE ALLOWED FOR STATISTICAL PURPOSES. 9 ITA NO.395/DEL/2016 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUN CED IN THE OPEN COURT ON 7 T H MARCH, 201 9 . S D / - S D / - [ H.S. SIDHU ] [O.P. KANT] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 7 T H MARCH , 2019 . RK / - [D.T.D.S] COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5 . DR ASST. REGISTRAR, ITAT, NEW DELHI