DCIT, New Delhi V. M/s Triune Projects Pvt. Ltd, New Delhi

ITA 483/DEL/2009

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61680 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 21-03-2012
• Assessment Year: 1995-1996
• Appeal Filed On: 09-02-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RENUKA JAIN GUPTA
• Assessee Lawyers: PROF S SAMPATH
• Keywords: Question of law
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH `F : NEW DELHI) BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.483/DEL./2009 (ASSESSMENT YEAR : 1995-96) DCIT, CIRCLE 16(1), VS. M/S TRIUNE PROJECTS PVT. LTD., NEW DELHI. 11 TH FLOOR, INTERNATIONAL TRADE TOWER, NEHRU PLACE, NEW DELHI. (PAN/GIR NO.AAACT0475H) (APPELLANT) (RESPONDENT) ASSESSEE BY : PROF. S. SAMPATH, ADV. REVENUE BY : SMT. RENUKA JAIN GUPTA. SR.DR ORDER PER U.B.S. BEDI, J.M. THIS APPEAL OF THE DEPARTMENT IS DIRECTED AGAINST T HE ORDER PASSED BY CIT(A) XIX, NEW DELHI DATED 16.10.2008, RELEVANT TO ASSES SMENT YEAR 1995-96, IN WHICH THE FOLLOWING SOLITARY GROUND HAS BEEN RAISED: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) ERRED IN ALLOWING DEDUCTION U/S 80-O OF I. T. ACT, 1961 IGNORING THE PROVISIONS OF EXPLANATION (III) TO SECTION 80-O AND MISPLACING RELIANCE ON CIRCULAR 700 DATED 23.03.1995. RELIANCE IS ALSO PLACED ON THE DECISION OF HONBLE DELHI HIGH COURT OF DELHI IN THE CASE OF ANAND & ANAND VS. CIT, 286 I.T.R. 432(D EL.) . 2. THIS APPEAL WAS EARLIER DISPOSED OF BY THIS BENC H VIDE ORDER DATED 25.9.2009, ON MISCELLANEOUS APPLICATION OF THE ASSESSEE, IT CAME TO BE RECALLED VIDE ORDER DATED 3.6.2011. I.T.A. NO.483/DEL./2009 (A.Y. 1995-96) 2 3. FACTS INDICATE THAT THE ASSESSEE COMPANY IS IN R ECEIPT OF FOREIGN CURRENCY OF RS.98,32,507/- AGAINST PROFESSIONAL AND TECHNICAL S ERVICES RENDERED BY IT TO THE FOREIGN PARTIES. AGAINST THIS AMOUNT, THE ASSESSEE CLAIMED DEDUCTION U/S 80-O OF THE ACT, AMOUNTING TO RS.4916254/- BEING 50% OF THE GROSS RE CEIPTS. SINCE THE GROSS TOTAL INCOME RETURNED WAS ONLY RS.3820878/-, IT RESTRICTED ITS C LAIM U/S 80-O, TO THE EXTENT OF RS.3820878/- AND ACCORDINGLY DECLARED NIL INCOME. ORIGINALLY, ASSESSMENT IN THIS CASE WAS MADE U/S 143(3) ON 22.4.1997 AT AN INCOME OF RS .36,89,530/- AFTER ALLOWING DEDUCTION U/S 80-O FOR THE YEAR UNDER APPEAL. TO TH E EXTENT OF RS.131315/- AS AGAINST RS.4916245/- CLAIMED BY THE ASSESSEE BY RESTRICTING ITS CLAIM OF THE DEDUCTION IN RESPECT OF ONE PARTY I.E. TRIUNE PROJECTS ONLY UPON ON GROS S FEE OF RS.312700 AN EXPENSE OF RS.50,000/- WAS DEDUCTED TO ARRIVE AT NET INCOME FR OM THE PROJECT AND ALLOWED 50% OF SUCH NET INCOME OF RS.262700 (312700-50,000). 4. AGGRIEVED BY THE ORDER OF ASSESSING OFFICER, ASS ESSEE TOOK UP THE MATTER IN APPEAL BEFORE CIT(A) AND CHALLENGED HIS ACTION IN N OT ALLOWING DEDUCTION U/S 80-O AS CLAIMED AND LD.AR FOR THE ASSESSEE HAS STRONGLY PL EADED THAT THE ASSESSING OFFICER IS NOT JUSTIFIED IN REJECTING ASSESSEES CLAIM WITH RE SPECT TO FOUR PARTIES FROM WHOM TECHNICAL FEES HAVE ALSO BEEN RECEIVED IN FOREIGN C URRENCY AS ASSESSEE WAS ENTITLED TO DEDUCTION U/S 80-O. 5. THE LD.CIT(A) IN APPEAL NO.247/97098 VIDE ORDER DATED 18.03.1998 HAD DISMISSED THE APPEAL ON THE PLEA THAT THE SERVICES ARE RENDERED IN INDIA FOR FOREIGN ENTERPRISES AND ACCORDINGLY REJECTED THE CLAIM OF T HE ASSESSEE BY UPHOLDING THE ORDER OF THE ASSESSING OFFICER.. I.T.A. NO.483/DEL./2009 (A.Y. 1995-96) 3 6. AGAINST THE SAID ORDER OF THE CIT(A) THE ASSESSE E HAD FURTHER TAKEN UP THE MATTER TO THE ITAT FOR RELIEF AND FURTHER SUBMITTED THAT THE ITAT IN (I.T.A NO.3656/DEL./1998 RELATING TO ASSESSMENT YEAR 1995-96) VIDE ORDER DAT ED 31.10.2003 HAD SENT THE FILE BACK TO THE ASSESSING OFFICER FOR FRESH ADJUDICATION IN THE LIGHT OF THE BOARD CIRCULAR BY GIVING REASONABLE OPPORTUNITY TO THE ASSESSEE: 7. IN THE SET ASIDE PROCEEDINGS, WHILE GIVING EFFEC T TO THE ORDER OF THE TRIBUNAL, THE ASSESSING OFFICER AGAIN HELD THAT ASSESSEE COMPANY IS NOT ENTITLED TO DEDUCTION U/S 80-O, FOR THE REASON THAT THE SERVICES WERE RENDERED IN INDIA AND AS SUCH, NO DEDUCTION U/S 80-O OF THE ACT. 8. IN FURTHER APPEAL, AGAINST THE ORDER OF THE ASS ESSING OFFICER, THE CIT(A), AFTER RELYING ON THE DECISION OF HONBLE JURISDICTIONAL H IGH COURT IN THE CASE OF EICHER CONSULTANCY SERVICES LTD., (214 CTR 126), WHEREIN C BDT CIRCULAR NO.700 DATED 23.3.1995 WAS DEALT WITH, HAS HELD THAT THE CLAIM O F THE ASSESSEE U/S 80-O WAS AS PER LAW. AGGRIEVED BY THE SAME, REVENUE IS IN FURTHER APPEAL BEFORE US. 9. IT WAS ARGUED BY LD.SR.DR THAT THE CIT(A) HAS P LACED WRONG RELIEANCE ON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF EICHER CONSULTANCY SERVICES LTD. (SUPRA). HE FURTHER CONTENDED THAT DISPUTE IN THE INSTANT APPEAL DOES NOT RELATE TO UTILIZATION OF SERVICES IN INDIA OR OUTSIDE INDIA B Y RECIPIENT OF SERVICES I.E. NON-RESIDENT. HOWEVER, THE DISPUTE IN THE INSTANT CASE RELATES TO RENDERING OF SERVICES WHETHER IN INDIA OR FROM INDIA. HE INVITED OUR ATTENTION TO THE DET AILS OBSERVATION MADE BY THE ASSESSING OFFICER WITH RESPECT TO EACH AND EVERY AGREEMENT EN TERED INTO BY THE ASSESSEE WITH I.T.A. NO.483/DEL./2009 (A.Y. 1995-96) 4 DIFFERENT PARTIES FOR RENDERING SUCH SERVICES AND T HE FINDING RECORDED BY THE ASSESSING OFFICER TO THE EFFECT THAT IN RESPECT OF AGREEMENT WITH DAEWOO SHIPBUILDING AND HEAVY MACHINERY LTD., THE ASSESSEE HAS RENDERED SERVICES TO ONGC INSIDE INDIA, THEREFORE, CLAIM OF DEDUCTION U/S 80-O, CANNOT BE ALLOWED. OU R ATTENTION WAS ALSO INVITED BY THE LD.SR.DR TO THE FINDING RECORDED EVEN BY THE CIT(A) WITH REGARD TO SERVICES RENDERED TO ONGC IN INDIA BY THE ASSESSEE COMPANY ON BEHALF OF FOREIGN COMPANIES. IN VIEW OF THESE FINDINGS, HE CONTENDED THAT ISSUE IS SQUARELY COVERED BY BOTH THE DECISIONS OF THE DELHI HIGH COURT AS DISCUSSED ABOVE WHICH SUPPORTS DEPARTMENTS CASE AND ARE IN FAVOUR OF THE REVENUE. 10. LD.COUNSEL FOR THE ASSESSEE WHILE RELYING ON TH E BASIS AND REASONING AS GIVEN BY THE CIT(A) HAS PLEADED FOR CONFIRMATION OF THE IMPU GNED ORDER. IT WAS FURTHER SUBMITTED THAT THE ORDER ON WHICH LD.SR.DR IS PLACING RELIANC E IS NO MORE IN EXISTENCE AND THAT ORDER WAS ALSO PASSED EX-PARTE BY THIS BENCH, WHICH HAS SINCE BEEN RECALLED, THEREFORE, BASIS GIVEN IN THAT ORDER CANNOT BE A VALID GROUND TO REVERSE THE ORDER OF CIT(A). OTHERWISE, THE CASE OF ANAND & ANAND VS. CIT, 286 I .T.R. 432(DEL.) ON WHICH RELIANCE HAS BEEN PLACED BY THE DEPARTMENT IS NOT APPLICABLE TO THE FACTS OF THE CASE BECAUSE THERE IS MATERIAL DIFFERENCE BETWEEN THE ISSUE DECIDED BY THE DELHI HIGH COURT IN THE CASE CITED SUPRA, AS COMPARED TO THE PRESENT CASE. RELIANCE P LACED ON CBDT CIRCULAR NO.700 DATED 23.03.1995 WHICH IS VERY MUCH RELEVANT AND IN VIEW OF DECISION OF CIT VS. EICHER CONSULTANCY SERVICES LTD., (214 CTR 126), IN WHICH CLARIFICATION REGARDING DEDUCTION U/S 80-O OF THE ACT HAS BEEN GIVEN, IS VERY MUCH RE LEVANT AND CIT(A) WHILE RELYING UPON SUCH CIRCULAR HAS PASSED A VERY REASONED ORDER, WHI CH SHOULD BE UPHELD. IT WAS FURTHER I.T.A. NO.483/DEL./2009 (A.Y. 1995-96) 5 SUBMITTED THAT THE ASSESSEE DID NOT DEAL WITH THE O NGC AND IT HAS NO CONNECTION WHATSOEVER WITH THE SAID COMPANY. THE ASSESSEE HAS SOLD DESIGNS TO DIFFERENT COMPANIES OUTSIDE INDIA AND RECEIVED THE PAYMENT IN FOREIGN E XCHANGE AND THAT COMPANY HAS USED SUCH DESIGNS IN INDIA WITH WHICH ASSESSEE HAS NO CO NNECTION OR RELEVANCE. THEREFORE, ASSESSEE WAS ENTITLED TO THE DEDUCTION U/S 80-O OF THE ACT, WHICH HAS RIGHTLY BEEN ALLOWED BY THE CIT(A) WHOSE ACTION NEEDS FURTHER CO NFIRMATION, WHICH SHOULD BE CONFIRMED. 11. LD.DR., IN ORDER TO COUNTER THE SUBMISSION OF T HE LD.COUNSEL OF THE ASSESSEE HAS SUBMITTED THAT SERVICES WERE ULTILIZED IN INDIA AND ASSESSEE HAS FAILED TO PROVE THE USE OF SUCH SERVICES WAS OUTSIDE INDIA TO GET DEDUCTION U/ S 80-O AND MOREOVER NO DOCUMENTARY EVIDENCE WAS FURNISHED TO SHOW THAT SERVICES WERE U TILIZED OUTSIDE INDIA. THEREFORE, ASSESSEE WAS NOT ENTITLED TO DEDUCTION WHICH HAS RI GHTLY BEEN DISALLOWED BY THE ASSESSING OFFICER AND CIT(A) IS NOT JUSTIFIED IN RE VERSING THE ORDER OF ASSESSING OFFICER WHICH SHOULD BE SET ASIDE AND ASSESSING OFFICERS O RDER BE RESTORED IN THIS REGARD. 12. WE HAVE CONSIDERED THE CONTENTIONS OF THE RIVAL SI DES AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS PRECEDEN TS RELIED UPON. CONTROVERSY IN THE INSTANT APPEAL REVOLVES AROUND ELIGIBILITY OF CLAIM OF DEDUCTION U/S 80-0, AND RELEVANT PROVISIONS AS CONTAINED IN THIS SECTION, WHICH REA DS AS UNDER: ' 'WHERE THE GROSS TOTAL INCOME OF AN ASSESSEE, BEING AN INDIAN COMPANY [OR A PERSON (OTHER THAN A COMPANY) WHO IS RESIDENT IN IN DIA]], INCLUDES [ANY INCOME RECEIVED BY THE ASSESSEE FROM THE GOVERNMENT OF A F OREIGN STATE OR FOREIGN ENTERPRISE IN CONSIDERATION FOR THE USE OUTSIDE IND IA OF ANY PATENT, INVENTION, DESIGN OR REGISTERED TRADE MARK] [AND SUCH INCOME I S RECEIVED IN CONVERTIBLE FOREIGN EXCHANGE IN INDIA, OR HAVING BEEN RECEIVED IN CONVERTIBLE FOREIGN EXCHANGE OUTSIDE INDIA, OR HAVING BEEN CONVERTED IN TO CONVERTIBLE FOREIGN EXCHANGE OUTSIDE INDIA, IS BROUGHT INTO INDIA, OR O N BEHALF OF THE ASSESSEE IN I.T.A. NO.483/DEL./2009 (A.Y. 1995-96) 6 ACCORDANCE WITH ANY LAW FOR THE TIME BEING IN FORCE FOR REGULATING PAYMENTS IN ACCORDANCE WITH AND SUBJECT TO THE PROVISIONS OF TH IS SECTION, [A DEDUCTION OF AN AMOUNT EQUAL TO.. . [EXPLANATION.-FOR THE PURPOSES OF THIS SECTION,- [(III) SERVICES RENDERED OR AGREED TO BE RENDERED OUTSIDE INDIA SHALL INCLUDE SERVICES RENDERED FROM INDIA BUT SHAL L NOT INCLUDE SERVICES RENDERED IN INDIA;} 13. IT IS CLEAR FROM THE PLAIN READING OF SEC 80-0 THAT ONLY THAT INCOME WHICH ARISES FROM RENDERING OF SERVICES FROM INDIA AND NOT THE S ERVICES RENDERED IN INDIA ARE ELIGIBLE FOR DEDUCTION. IN THE INSTANT CASE, THE AS SESSEE ENTERED INTO AN AGREEMENT WITH THE FOREIGN COMPANY FOR RENDERING SERVICES IN INDIA ON ONGC PLATFORM. THE ISSUE REVOLVES AROUND THE QUESTION WHETHER THE SERVICES S O RENDERED BY THE ASSESSEE IN INDIA AT ONGC PLATFORM ON BEHALF OF FOREIGN ENTERPR ISE WOULD BE RELATED AS SERVICES RECEIVED BY FOREIGN ENTERPRISE OUTSIDER INDIA OR NO T. IN THE SET ASIDE PROCEEDINGS, AFTER ANALYZING THE AGREEMENT ENTERED BY THE ASSESSEE WIT H FOREIGN ENTERPRISE AND THE NATURE OF SERVICES RENDERED, THE AO CAME TO THE CON CLUSION THAT SERVICES WERE RENDERED BY THE ASSESSEE IN INDIA. IN AN APPEAL FI LED BEFORE THE TRIBUNAL, THEN MATTER WAS RESTORED BACK TO THE FILE OF THE AO VIDE ORDER DATED 31.10.2003 FOR DECIDING THE ALLOWABILITY OF CLAIM AS PER CBDT CIRCULAR CITED BY THE LEARNED AR. FOLLOWING WAS THE OBSERVATION OF IT A T:- 'AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE ARE OF THE VIEW THAT THE MATTER HAS NOT BEEN CONSIDERED IN THE RIGHT PERSPEC TIVE. IT IS WELL SETTLED THAT BOARD CIRCULAR IS BINDING ON ALL THE INCOME TAX AUT HORITIES. THE BOARD CIRCULAR (SUPRA) HAD CLARIFIED THAT DEDUCTION WOULD BE AVAIL ABLE IF SUCH SERVICES ARE RENDERED FROM INDIA AND RECEIVED OUTSIDE INDIA BY SERVICES ARE RENDERED FROM INDIA AND RECEIVED OUTSIDE INDIA BY THE FOREIGN ENT ERPRISES AND THE SAME I.T.A. NO.483/DEL./2009 (A.Y. 1995-96) 7 WOULD NOT BE DENIED MERELY BECAUSE ITS BENEFIT WAS UTILIZED IN INDIA. THEREFORE, THE AO WAS NOT JUSTIFIED IN OBSERVING TH AT SERVICES RENDERED FROM INDIA MUST BE FOR USE OUTSIDE INDIA. FURTHER, ALL THE CONCLUSIONS HAD BEEN DRAWN BY THE AO SIMPLY ON THE BASIS OF CONSTRUCTION OF THE AGREEMENT AND NO EXERCISE WAS MADE TO ASCERTAIN WHETHER SUCH SERVICE S WERE RECEIVED BY THE FOREIGN ENTERPRISES OUTSIDE INDIA OR NOT. FURTHER, THE POSSIBILITY OF RENDERING SERVICES PARTLY IN INDIA AND PARTLY OUTSI DE INDIA, ALSO CANNOT BE RULED OUT. WE ALSO FIND THAT AGREEMENTS BETWEEN THE ASSESSEE AND THE FOREIGN ENTERPRISES ARE INDEPENDENT AGREEMENTS AND, THEREFO RE, NO INTERFERENCE CAN BE DRAWN THAT ASSESSEE WAS WORKING FOR ONGC. IN FACT, ASSESSEE WAS REQUIRED TO RENDER SERVICES WITH REFERENCE TO THE PLATFORM ON H IGH SEAS TO BE CONSTRUCTED BY THE FOREIGN PARTIES FOR ONGC. THEREFORE, THE CRU CIAL QUESTION TO BE ANSWERED IS WHETHER THE SERVICES RENDERED BY THE AS SESSEE FALLS WITHIN THE AMBIT OF THE CIRCULAR ISSUED BY THE CBDT. SINCE NO PROPER EXERCISE HAS BEEN MADE IN THIS REGARD, WE, IN THE INTEREST OF JUSTICE , SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER TO THE FILE OF AO FOR FRESH ADJUDICATION IN THE LIGHT OF THE BOARD CIRCULAR AFTER EXAMINING THE RELEVANT MAT ERIAL/EVIDENCE WHICH MAY BE PRODUCED/FURNISHED BY THE ASSESSEE. A REASONABLE OPPORTUNITY WOULD BE ALLOWED TO THE ASSESSEE IN THIS REGARD.' 14. HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE O F EICHER CONSULTANCY SERVICES LTD.(SUPRA), FOLLOWING WAS THE OBSERVATION OF THE HON'BLE COURT:- 'ON THE QUESTION WHETHER THE SERVICES HAVE BEEN REN DERED FROM INDIA OR IN INDIA, AS ALREADY NOTICED, THE CLARIFICATION ISSUED BY TH E CBDT CATEGORICALLY STATES, THAT AS LONG AS THE SERVICES ARE PROVIDED TO A FOREIGN ENTITY, THE MERE FACT THAT THE INFORMATION USED OR .SERVICES RENDERED IN INDIA WOULD NOT DESCRIBE (SIC- DISENTIT LE THE PROVIDER OF THE SERVICES TO THE DEDUCTION UNDER S. 80-0 OF THE ACT. IN ANY EVENT THERE ARE CONCURRENT FINDINGS BOTH BY THE CIT(A) AND THE TRIBUNAL THAT THE SERVICES RENDERED BY THE ASSESSEE IN THE INSTANT CA SE ARE FROM INDIA. WE FIND NO INFIRMITY IN THE SAID CONCLUSION ARRIVED AT BY THE TWO AUTHORITIES. NO SUBSTANTIAL QUESTION OF LAW ARISES IN THIS APPEAL. THIS APPEAL IS DISMISSED.' CBDT VIDE ITS CIRCULAR NO.700 DATED 23.3.1995 ISSUE D A CLARIFICATION REGARDING DEDUCTION U/S 80-0. THE RELEVANT PORTION OF THE SAID CLARIFICATION READS AS UNDER::- 'IT HAS BEEN CLARIFIED IN EXPLANATION(III) TO S. 80 -0 THAT SERVICES RENDERED OR AGREED TO BE RENDERED OUTSIDE INDIA [I. E. ITEM (B) ABOVE] SHALL INCLUDE SERVICES RENDERED FROM IND IA BUT SHALL I.T.A. NO.483/DEL./2009 (A.Y. 1995-96) 8 NOT INCLUDE SERVICES RENDERED IN INDIA. A QUESTION HAS BEEN RAISED AS TO WHETHER THE BENEFI T OF S. 80-0 WOULD BE AVAILABLE IF THE TECHNICAL AND PROFESSIONAL SERV ICES, THOUGH RENDERED OUTSIDE INDIA, ARE USED BY THE FOREIGN GOV ERNMENT OR ENTERPRISE IN INDIA. THE MATTER HAS BEEN CONSIDERED BY THE BOARD. IT IS CLARIFIED THAT AS LONG AS THE TECHNICAL AND PROFESSIONAL SERVICES ARE RENDERED FROM INDIA AND ARE RECEIVED BY A FOREIGN GOVERNMENT OR E NTERPRISE OUTSIDE INDIA, DEDUCTION UNDER S. 80-0 WOULD BE AVAILABLE T O THE PERSON RENDERING THE SERVICES EVEN IF THE FOREIGN RECIPIEN T OF THE SERVICES UTILIZES THE BENEFIT OF SUCH SERVICES IN INDIA .' 15. HON'BLE DELHI HIGH COURT IN THE CASE OF ANAND & ANAND LTD. - (286 ITR 432) HAS DEALT WITH THE SITUATION WHERE IS SUE WITH REGARD TO DEDUCTION U/S 80-0 FOR THE SERVICES RENDERED 'OUTSI DE INDIA' AND 'IN INDIA' WAS CONSIDERED AND IT WAS HELD THAT AMOUNT R ECEIVED BY THE ASSESSEE IN RESPECT OF THE WORK DONE FOR FOREIGN CL IENTS IN INDIA IS NOT ENTITLED FOR DEDUCTION U/S 80-0 IN SO FAR AS SUCH PROFESSIONAL SERVICES COULD NOT BE SAID TO HAVE BEEN RENDERED FROM OR OUTSIDE INDIA SO AS TO QUALIFY FOR DEDUCTION U/S 80-0. 16. IN THE LATER DECISION, HON'BLE DELHI HIGH COUR T IN THE CASE OF EICHER CONSULTANCY SERVICES LTD. (SUPRA) HAS UPHELD THE ALLOWABILITY O F DEDUCTION U/S 80-0 ON THE FOLLOWING FINDINGS BEING RECORDED BY TRIBUNAL AND CIT(A), TO THE EFFECT THAT SERVICES WERE RENDERED FROM INDIA :- 'IN ANY EVENT, THERE ARE CONCURRENT F INDINGS BOTH BY THE CIT(A) AND THE TRIBUNAL THAT THE SERVICES RENDERED BY THE ASSESSEE IN THE INSTANT CA SE ARE FROM INDIA. WE FIND NO INFIRMITY IN THE SAID CONCLUSION ARRIVE D AT BY TWO AUTHORITIES. ' 17. ON THE BASIS OF THE FINDING OF THE CIT(A) AND THE TRIBUNAL THAT THE SERVICES WERE RENDERED FROM INDIA, THE HON'BLE HIGH COURT FOUND T HAT SERVICES PROVIDED TO A FOREIGN I.T.A. NO.483/DEL./2009 (A.Y. 1995-96) 9 ENTITY ARE ENTITLED TO DEDUCTION U/S 80-0 NOTWITHST ANDING THE FACT THAT RECIPIENT OF SUCH SERVICES UTILIZED THE BENEFIT OF SUCH SERVICES IN I NDIA. IN SO FAR AS SERVICES ARE RENDERED FROM INDIA, THERE IS NO BAR ON ALLOWING DEDUCTION U /S 80-0 MERELY ON THE PLEA THAT FOREIGN ENTITIES HAVE UTILIZED THOSE SERVICES IN INDIA. THU S THE BASIC CONDITION FOR RENDERING SERVICES FROM INDIA IS PRESENT IN BOTH THE CASES DECIDED BY HON'BLE DEL HI HIGH COURT. IN THE INSTANT CASE BEFORE US, THE AO HAD CATEGORICALLY RECORDED A FINDING THAT SERVICES WERE RENDERED BY ASSESSEE IN INDIA, THEREFORE NOT ELIGIBLE FOR DEDUCTION U/S 80-0. WHILE ALLOWING THE ASSESSEE'S CLAIM FOR DEDUC TION U/S 80- 0, THE CIT(A) RECORDED FOLLOWING FINDINGS:- 'ONGC AWARDED CONTRACT FOR CONSTRUCTION OF PLATFORM S ON HIGH SEES TO VARIOUS FOREIGN PARTIES OUT OF WHICH SOME OF THE FO REIGN PARTIES HAD ENTERED INTO AN INDEPENDENT CONTRACT WITH THE ASSES SEE. IN LIEU OF SUCH INDEPENDENT CONTRACTS, THE ASSESSEE HAD RENDERED TH E PROFESSIONAL AND TECHNICAL SERVICES BY WAY OF DESIGNING, DRAWING AS WELL AS IN THE FIELD OF ENGINEERING TO THE FOREIGN PARTIES OUTSIDE INDIA . THE SERVICES TO ONGC WERE RENDERED IN INDIA BY THE ASSESSEE COMPANY ON BEHALF OF THE FOREIGN COMPANIES. THE CONTENTION OF THE AO IS THAT SERVICES SHOULD BE RENDERED OUTSIDE INDIA FOR ENTIT LEMENT OF RELIEF U/S 80-0. THE AR STATED THAT IN THE LIGHT OF CIRCULAR N O.700 DATED 23-03- 1995 EVEN IF THE SERVICES ARE RENDERED IN INDIA, TH E ASSESSEE IS ENTITLED TO DEDUCTION U/S 80-0 IN THE LIGHT OF THE SAID CIRC ULAR AND THE DECISION OF JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. EICHER CONSULTANCY SERVICES LTD. (214 CTR 126).' (EMPHASIS IN THE JUDG MENTS SUPPLIED BY US) 18. THEREFORE, THE FINDING OF CIT(A) IN THE INSTAN T CASE WAS THAT ASSESSEE HAS RENDERED SERVICES TO THE ONGC IN INDIA . INSOFAR AS SERVICES WERE RENDERED IN INDIA, THE ASSESSEE IS NOT ENTITLED FOR DEDUCTION U/S 80-0 IRRESPECTIVE OF THE UTILIZATION OF SUCH SERVICES BY THE FOREIGN ENTERPRISE EITHER IN I NDIA OR OUTSIDE INDIA. MEANING THEREBY IF THE SERVICES ARE RENDERED BY ASSESSEE FR OM INDIA, THE MERE FACT THAT FOREIGN I.T.A. NO.483/DEL./2009 (A.Y. 1995-96) 10 ENTERPRISES HAS UTILIZED THESE SERVICES IN INDIA WO ULD NOT DISENTITLE IT FROM CLAIMING DEDUCTION U/S 80-0, BUT IF THE SERVICES ARE RENDERE D IN INDIA AND NOT FROM INDIA , ASSESSEE'S CLAIM FOR ENTITLEMENT U/S 80-0 WILL NOT BE ALLOWED. IN THE INSTANT CASE NO CLEAR FINDING HAS BEEN RECORDED BY CIT(A) THAT SERV ICES RENDERED BY THE ASSESSEE FROM INDIA TO THE FOREIGN ENTERPRISE AND THE FOREIG N ENTERPRISE AFTER RECEIPT OF SUCH SERVICES OUTSIDE INDIA HAD UTILIZED IT IN INDIA AND IT IS NOT A CASE OF RENDERING OF SERVICES BY THE ASSESSEE AT ONGC PLATFORM IN INDIA SO AS TO BRING IT WITHIN THE AMBIT OF CIRCULAR NO. 700 DATED 23.3.95. THEREFORE, WE RESTORE THE MATTER BACK TO CIT(A) FOR DECIDING THE ISSUE AFRESH IN TERMS OF OUR DIREC TIONS CONTAINED HEREINABOVE. 19. IN THE RESULT, THE APPEAL OF THE REVENUE IS AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 25.05.2012. SD/- SD/- (B.C. MEENA) ACCOUNTANT EMBER (U.B.S. BEDI) JUDICIAL MEMBER DATED : MAY 25, 2012 SKB COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A)-XIX, NEW DELHI. 5. CIT(ITAT) DEPUTY REGISTRAR, ITAT I.T.A. NO.483/DEL./2009 (A.Y. 1995-96) 11