DDIT (IT)3(1), MUMBAI V. HELIX ENERGY SOLUTIONS GROUP INC., MUMBAI

ITA 4909/MUM/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4288 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-04-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: L
• Next Hearing Date: 07-04-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 25-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JASBIR CHA UHAN
• Assessee Lawyers: AYUSH J RAJANI
• Section: 143(3); 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH L, MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA , JUDICIAL MEMBER ITA NO. 4909/MUM/2014 : (A.Y : 2010 - 11) DY. DIRECTOR OF INCOME - TAX (IT) - 3(1), MUMBAI (APPELLANT) VS. M/S. HELIX ENERGY SOLUTIONS GROUP INC C/O. NANGIA & CO., THE SUMMIT, LEVEL 2, UNIT NO. 210, WESTERN EXPRESS HIGHWAY, VILE PARLE (E), MUMBAI PAN : AABCH9122J (RESPONDENT) ASSESSEE BY : SHRI AYUSH J. RAJANI REVENUE BY : SHRI JASBIR CHAUHAN (CIT - DR) DATE OF HEARING : 07/04/2016 DATE OF PRONOUNCEMENT : 15 /04/2016 O R D E R PER G.S. PANNU , AM : THE CAPTIONED APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF CIT(A) - 10, MUMBAI DATED 02.01.2014, PERTAINING TO THE ASSESSMENT YEAR 2010 - 11, WHICH IN TURN HAS ARISEN FROM THE ORDER PASSED BY THE ASSESSING OFFICER DATED 10.05.2013 UNDER SECTION 143(3 ) R.W.S 144C(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. IN THIS APPEAL, REVENUE HAS RAISED THE FOLLOWING GROUND OF APPEAL: 2 M/S. HELIX ENERGY SOLUTIONS GROUP INC ITA NO. 4909/MUM/2014 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS CORRECT IN HOLDING THAT INTEREST U/S 234B IS NOT LEVIABLE IN THE CASE OF NON RESIDENT DESPITE A SPECIFIC FINDING BY THE HON'BLE DELHI HIGH COURT IN THE CASE OF DIT VS. ALCATEL LU CENT USA INC. DATED 14.11.2013 IN ITA NOS. 328 AND 329/2012 WHEREIN IT HAS BEEN SPECIFICALLY STATED THAT A NON RESIDENT ASSESSEE WHICH DOES NOT ADMIT INCOME CHARGEABLE TO TAX MUST BE INFERRED TO HAVE INDUCED THE INDIAN PAYER NOT TO DEDUCT TDS, THUS, RENDER ING ITSELF LIABLE FOR ADVANCE TAX INTEREST. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE RESPONDENT - ASSESSEE IS A NON - RESIDENT ENGAGED IN THE BUSINESS OF PROVIDING SERVICES AND FACILITIES IN CONNECTION WITH EXPLORATION, EXPLOITING AND PRODUCTION OF MINERA L OIL IN INDIA. FOR THE ASSESSMENT YEAR UNDER CONSIDERATION, IT FILED A RETURN OF INCOME DECLARING A TAXABLE INCOME OF RS.55,42,57,061/ - WHEREAS THE ASSESSING OFFICER FINALIZED THE ASSESSMENT VIDE ORDER DATED 10.5.2013 U/S. 144C(3) R.W.S. 143(3) OF THE AC T AT AN INCOME OF RS.58,71,87,165/ - . IN THE RETURN OF INCOME , RECEIPTS OF RS.32,09,92,291/ - ON ACCOUNT OF SERVICE TAX AND RS.83,78,750/ - ON ACCOUNT OF VAT WERE CLAIMED AS NOT INCLUDIBLE IN REVENUE CHARGEABLE TO TAX IN TERMS OF SEC. 44BB OF THE ACT, WHEREA S IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER HELD THE AFORESAID RECEIPTS TO BE INCLUDIBLE IN THE TOTAL REVENUE TAXABLE IN TERMS OF SEC. 44BB OF THE ACT. AS A CONSEQUENCE OF SUCH ASSESSMENT, THE ASSESSING OFFICER ALSO LEVIED INTEREST U/S. 234B AND 234C OF THE ACT. SUCH CHARGING OF INTEREST U/S. 234B AND 234C OF THE ACT WAS CHALLENGED BY THE ASSESSEE BEFORE THE CIT(A) ON THE GROUND THAT SINCE ASSESSEE WAS A NON - RESIDENT AND ITS ENTIRE REVENUE/RECEIPTS WERE SUBJECT TO WITHHOLDING TAX IN INDIA U/S. 19 5 OF THE ACT AND ASSESSEE WAS NOT LIABLE TO PAY ANY ADVANCE TAX IN TERMS OF SEC. 209(1)(D) OF THE ACT, LEVY OF 3 M/S. HELIX ENERGY SOLUTIONS GROUP INC ITA NO. 4909/MUM/2014 INTEREST U/S. 234B AND 234C OF THE ACT WAS NOT JUSTIFIED . THE CIT(A) HAS ACCEPTED THE AFORESAID PLEA OF THE ASSESSEE FOLLOWING THE JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF NGC NETWOR K ASIA LLC, 313 ITR 187 (BOM) . AGAINST SUCH A DECISION OF THE CIT(A), REVENUE IS IN APPEAL BEFORE US. 4. BEFORE US, IT WAS A COMMON POINT BETWEEN THE PARTIES THAT HAVING REGARD TO THE FACTS AND CIRCUMST ANCES OF THE CASE, THE RATIO OF THE JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF NGC NETWOR K ASIA LLC ( SUPRA ) IS CLEARLY ATTRACTED TO THE PRESENT CASE AND THE CIT(A) MADE NO MISTAKE IN SETTING ASIDE THE LEVY OF INTEREST U/S. 234B AND 234C OF TH E ACT. AS A CONSEQUENCE, WE HEREBY AFFIRM THE ORDER OF CIT(A) AND ACCORDINGLY, THE APPEAL OF THE REVENUE FAILS . 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 5 T H APRIL, 2016. SD/ - SD/ - ( AMIT SHUKLA ) JUDICIAL MEMBER ( G.S. PANNU ) ACCOUNTANT MEMBER MUMBAI, DATE : 1 5 T H APRIL , 2016 *SSL* COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4 M/S. HELIX ENERGY SOLUTIONS GROUP INC ITA NO. 4909/MUM/2014 4) THE CIT CONCERNED 5) THE D.R, L BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI