ONGC as representative assessee of, Dehradun V. ADIT, Dehradun

ITA 4469/DEL/2013

• Counselvise Citation: 446920114 RSA 2013
• Duration Of Justice: 2 year(s) 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-12-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Assessment Year: 2010-2011
• Appeal Filed On: 26-07-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJNA
• Assessee Lawyers: KAVEESH SYAL

Judgement Text

ITA NO. 4469/DEL/2013 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A.NO. 4469 /DEL/201 3 A.Y. : 20 10 - 11 ONGC AS REPRESENTATIVE ASSESSEE OF BOOTS AND COOTS INTERNATIONAL WELL CONTROL INC., USA C/O DGM HEAD, CORPORATE TAX, OIL AND NATURAL GAS CORPORATION LIMITED, ROOM NO. 244, OLD SECRETARIAT BUILDING, TEL BHAWAN, DEHRADUN 248 003 (PAN:AAACO1598A) VS. ASSISTANT DIRECTOR OF INCOME TAX, INTERNATIONAL TAXATION, DEHRADUN AAYAKAR BHAWAN, 13-A, SUBHASH ROAD, DEHRADUN 248001 (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) ASSESSEE BY : SH. KAVEESH SYAL, CA DEPARTMENT BY : SH. P. DAM KANUNJNA, SR. DR DATE OF HEARING : DATE OF HEARING : DATE OF HEARING : DATE OF HEARING : 2 22 26 66 6- -- -11 1111 11- -- -201 201 201 2015 55 5 DATE OF ORDER : DATE OF ORDER : DATE OF ORDER : DATE OF ORDER : 0 00 03 33 3- -- -12 1212 12- -- -201 201 201 2015 55 5 ORDER ORDER ORDER ORDER PER PER PER PER H.S. SIDHU H.S. SIDHU H.S. SIDHU H.S. SIDHU : : : : J JJ JM MM M THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE IMPUGNED ORDER DATED 17/5/2013 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-II, DEHRADUN ON THE FOLLOWING GROUNDS:- 1. THE LD. CIT(A)-II, DEHRADUN, HAS ERRED IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE CASE IN UPHOLDIN G ITA NO. 4469/DEL/2013 2 THE ORDER PASSED BY THE AO WHEREIN IT WAS HELD THAT THE RECEIPTS OF BOOTS AND COOTS INTERNATIONAL WELL CONTROL INC., USA ARE TAXABLE AS FEES FOR TECHNICA L SERVICES UNDER THE PROVISIONS OF THE INCOME TAX AC T, 1961 AND IN NOT HOLDING THAT ITS RECEIPTS WERE NOT TAXABLE IN INDIA AS PER THE INDIA-USA DOUBLE TAXATI ON AVOIDANCE AGREEMENT. 2. WITHOUT PREJUDICE TO THE PRECEDING GROUND, THE L D. CIT(A), DEHRADUN, HAS ERRED IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE CASE IN NOT HOLDING THAT THE RECEIPTS OF BOOKS AND COOTS INTERNATIONAL WELL CONT ROL INC., USA WERE TAXABLE U/S. 44BB OF THE I.T. ACT, 1 961. 2. THE FACTS NARRATED BY THE REVNEUE AUTHORITIE S ARE NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING SHRI KAVEESH SYAL, CA/ AU THORISED REPRESENTATIVE OF THE ASSESSEE STATED THAT HE IS NOT PRESSING THE GROUND NO. 1, HENCE, THE GROUND NO. 1 IS DISMISSED, AS NOT PRESSED. 3.1 WITH REGARD TO ISSUE INVOLVED IN GROUND NO. 2 IS CONCERNED, HE STATED THAT THE SAID ISSUE HAS ALREADY BEEN DECIDED IN FAV OUR OF THE ASSESSEE BY THE HONBLE SUPREME COURT OF INDIA IN ASSESSEES OWN CA SE REPORTED IN 376 ITR 306 (SC). THEREFORE, HE REQUESTED THAT THE ISSUE INVO LVED IN GROUND NO. 2 MAY BE DECIDED BY FOLLOWING THE JUDGMENT OF THE HONBLE SU PREME COURT OF INDIA IN ASSESSEES OWN CASE. ITA NO. 4469/DEL/2013 3 4. ON THE OTHER HAND, LD. DR DID NOT CONTROVERT THE SUBMISSION MADE BY THE LD. A.R. 5. WE HAVE HEARD THE BOTH PARTIES AND PERUSED AND CONSIDERED THE RELEVANT RECORD AVAILABLE WITH US SPECIALLY THE IMPUGNED ORD ERS PASSED BY THE REVENUE AUTHORITIES AND THE COPY OF THE HONBLE APEX COURT DECISION DATED 1.7.2015 DECIDED IN FAVOUR OF THE ASSESSEE TITLE OIL & NATU RAL GAS CORPORATION LTD. VS. COMMISSIONER OF INCOME TAX (ASSESSEES OWN CASE) RE PORTED IN 376 ITR 306 (SC). THE HONBLE SUPREME COURT HAS HELD AS UNDER: - THE FACTS INDICATE THAT THE PITH AND SUBSTANCE OF EACH OF THE CONTRACTS/ AGREEMENTS IS INEXTRICABLY CONNECTED WIT H PROSPECTING, EXTRACTION OR PRODUCTION OF MINERAL OIL. THE DOMINA NT PURPOSE OF EACH OF SUCH AGREEMENT IS FOR PROSPECTING, EXTRACTI ON OR PRODUCTION OF MINERAL OILS THOUGH THERE MAY BE CERTAIN ANCILLA RY WORKS CONTEMPLATED THERE-UNDER. IF THAT BE SO, WE WILL HA VE NO HESITATION IN HOLDING THAT THE PAYMENTS MADE BY ONGC AND RECEI VED BY THE NON-RESIDENT ASSESSES OR FOREIGN COMPANIES UNDER TH E SAID CONTRACTS IS MORE APPROPRIATELY ASSESSABLE UNDER THE PROVISIO NS OF SECTION 44BB AND NOT SECTION 44D. 5.1 AFTER GOING THROUGH THE ABOVE DECISION, IT IS CRYSTAL CLEAR THAT THE ISSUE INVOLVED IN GROUND NO. 2 HAS BEEN DECIDED BY THE HONBLE SU PREME COURT IN FAVOUR OF THE ITA NO. 4469/DEL/2013 4 ASSESSEE, AND THEREFORE, RESPECTFULLY FOLLOWING TH E PRECEDENT AS ABOVE, IN ASSESSEES OWN CASE, WE CANCEL THE ORDERS OF THE REVENUE AUTHO RITIES ON THE ISSUE INVOLVED IN GROUND NO. 2 AND ALLOW ASSESSEES APPEAL ON THIS I SSUE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 03/12/2015. S SS SD DD D/ // /- -- - S SS SD DD D/ // /- -- - [ [[ [PRASHANT MAHARISHI PRASHANT MAHARISHI PRASHANT MAHARISHI PRASHANT MAHARISHI] ]] ] [ [[ [H.S. SIDHU H.S. SIDHU H.S. SIDHU H.S. SIDHU] ]] ] ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER DATE 03/12/2015 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES