DDIT, New Delhi V. M/s. Egis Bceom International SA, Haryana

ITA 4973/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 66007 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 18-12-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 09-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHUMANA SEN
• Keywords: Presumptive income; Business income; Double taxation relief; Deemed to accrue or arise in india; Permanent establishment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH `B : NEW DELHI) BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER ITA NO.4973/DEL./2011 (ASSESSMENT YEAR : 2007-08) DDIT, CIRCLE 3(2), VS. EGIS BCEOM INTERNATIONAL SA, NEW DELHI. 12/6, SAFFRON SQUARE, DELHI-MATHURA ROAD, NEW DELHI. (PAN/GIR NO.AABCB7760L) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ANIL JAIN, CA REVENUE BY : MS. SHUMANA SEN, SR.DR ORDER PER U.B.S. BEDI, J.M. THIS APPEAL OF THE DEPARTMENT IS DIRECTED AGAINST T HE ORDER PASSED BY THE CIT(A)- XXIX, NEW DELHI, DATED 29.07.2011, RELEVANT TO ASSE SSMENT YEAR 2007-08, WHEREBY ORDER OF CIT(A) IN HOLDING THAT SERVICE TAX IS NOT PART OF THE GROSS RECEIPT THAT IS TO BE TAXED U/S 44D READ WITH SECTION 115A OF THE I.T. AC T, 1961, HAS BEEN CHALLENGED.. 2. FACTS OF THE CASE INDICATE THAT THE ASSESSEE IS A COMPANY HAVING A PERMANENT ESTABLISHMENT IN INDIA. DURING THE YEAR UNDER APPE AL, THE ASSESSEE WAS INVOLVED IN PROVIDING TECHNICAL CONSULTANCY SERVICES IN THE INF RASTRUCTURE SECTOR. THE CLIENTS OF THE ASSESSEE WERE MAINLY GOVERNMENT ORGANIZATIONS, SUCH AS NATIONAL HIGHWAY AUTHORITY OF INDIA AND STATE GOVERNMENTS ETC. THE INCOME DERIVE D BY THE ASSESSEE IS TAXABLE U/S 44D (PROJECTS ENTERED INTO OR BEFORE MARCH 31, 2003) AN D U/S 44D (IN RESPECT OF CONTRACTS ENTERED INTO AFTER 31.3.2003) READ WITH SECTION 115 A OF THE ACT, I.E., AT THE RATE OF 20% OF I.T.A. NO.4973/DEL./2011 (A.Y. : 2007-08) 2 GROSS RECEIPTS. DURING THE YEAR, THE ASSESSEE RECE IVED AN AMOUNT OF RS.13,73,58,441/- FROM ITS VARIOUS CLIENTS AS FEE FOR TECHNICAL SERVI CES INCLUDING AN AMOUNT OF RS.60,95,094/- WHICH WAS COLLECTED BY IT FROM ITS C LIENTS TOWARDS THE SERVICE TAX. WHILE COMPUTING ITS TAX LIABILITY, THE ASSESSEE EXCLUDED THE AMOUNT OF SERVICE TAX COLLECTED BY IT FROM ITS CLIENTS AND PAID TAXES AT THE RATE OF 20% ON THE NET AMOUNTS. 2.1 SIMILARLY, THE ASSESSEE DID NOT INCLUDE AN AMOU NT OF RS.70,013/- BEING AMOUNT OF SERVICE TAX COLLECTED BY IT ON ACCOUNT OF FEE FOR T ECHNICAL SERVICES (OTHER THAN THE BUSINESS INCOME TAXABLE IN THE HANDS OF PE) RECEIVED WHICH W ERE OFFERED TO TAX @ 10% UNDER ARTICLE 13 OF INDO FRENCH DTAA. 2.2 THE ASSESSING OFFICER REJECTED THE CONTENTION O F THE ASSESSEE THAT THE SERVICE TAX DID NOT HAVE ANY ELEMENT OF INCOME, I.E., IT WAS NO T IN THE NATURE OF FEE FOR TECHNICAL SERVICES AND, THEREFORE, DID NOT PARTAKE THE CHARAC TER OF INCOME. THE ASSESSING OFFICER REFERRED TO THE PROVISIONS CLAUSE (B) OF SECTION 44 D OF THE ACT, I.E., NO DEDUCTION IN RESPECT OF ANY EXPENDITURE OR ALLOWANCE IS ALLOWABL E IN COMPUTING THE INCOME BY WAY OF ROYALTY OR FEES FOR TECHNICAL SERVICES, AND HELD TH AT INCOME INCLUDE THE AMOUNT OF SERVICE TAX COLLECTED BY IT FROM THE CLIENTS AND TAX WAS PA YABLE ON THE GROSS RECEIPTS. THE ASSESSING OFFICER RELIED UPON THE JUDGMENT OF HONB LE ITAT IN THE CASE OF TECHNIP OFFSHORE CONTRACTING BV (2009) 29 SOT 33 (DEL.). 3. ASSESSEE TOOK UP THE MATTER IN APPEAL AND CIT(A) , WHILE CONSIDERING AND ACCEPTING THE PLEA OF THE ASSESSEE, HAS CONCLUDED T O HOLD THAT SERVICE TAX IS NOT PART OF THE GROSS RECEIPTS THAT IS TO BE TAXED U/S 44D READ WI TH SECTION 115A OF THE ACT AND DEPARTMENT HAS FILED APPEAL AGAINST THIS ORDER.. 4. AT THE VERY OUTSET, LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT ISSUE RAISED IN THIS APPEAL IS SQUARELY COVERED IN FAVOUR OF THE ASSESSE E BY G BENCH OF THE ITAT, DELHI AS REPORTED IN (2012) 24 TAXMANN.COM 390 (DELHI) DATED 29.06.2010 WHICH HAS FURTHER BEEN FOLLOWED BY E BENCH, ITAT, DELHI IN THE CASE OF D DIT VS. M/S MITCHELL DRILLING INTERNATIONAL PTY. LTD., I.T.A. NO.698/DEL./2012 DA TED 31.08.2012 IN WHICH ONE OF THE MEMBER IS A PARTY. THEREFORE, IT WAS PLEADED THAT SINCE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE AND CIT(A)S ORDER IS IN CON FORMITY WITH THE DECISIONS OF THE I.T.A. NO.4973/DEL./2011 (A.Y. : 2007-08) 3 TRIBUNAL, THEREFORE, RELYING UPON THESE DECISIONS, IT WAS PLEADED FOR CONFIRMATION OF THE IMPUGNED ORDER. 5. LD.DR COULD NOT CONTROVERT THIS FACTUAL ASPECT A ND RATHER SUBMITTED THAT ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY VARIO US DECISIONS OF THE TRIBUNAL AND APPEAL MAY BE DISPOSED OF ACCORDINGLY. 6. WE HAVE HEARD BOTH THE SIDES, CONSIDERED THE MAT ERIAL ON RECORD AND FIND THAT ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY VARIOUS DECISIONS OF THE BENCHES INCLUDING E BENCH, ITAT, DELHI, IN THE CASE OF DD IT VS. M/S MITCHELL DRILLING INTERNATIONAL PTY. LTD. (SUPRA) IN WHICH SIMILAR IS SUE HAS BEEN DEALT WITH AND CONCLUDED FROM PARA.5 ONWARDS, WHICH IS REPRODUCED AS UNDER: 5. LD.CIT(A) WHILE CONSIDERING AND ACCEPTING THE PLEA OF THE ASSESSEE HAS CONCLUDED TO ALLOW THE APPEAL OF THE ASSESSEE GIVIN G ELABORATELY THE BASIS AND REASONING AS PER PARAS.5 TO 5.9 OF HIS ORDER. 6. AGGRIEVED BY THIS ORDER OF CIT(A), DEPARTMENT H AS COME UP IN APPEAL AND WHILE RELYING UPON DECISION OF AUTHORITY FOR ADVANC E RULING IN THE CASE OF SIEM OFFSHORE INC., IN RE, (2011) 337 ITR 207 (AR) DATED 25.7.2011, HAS PLEADED FOR REVERSAL OF THE ORDER PASSED BY THE CIT(A) AND REST ORING THAT OF THE ASSESSING OFFICER. SINCE SERVICE TAX IS PART OF RECEIPT, THER EFORE, FOR PRESUMPTIVE INCOME, SAME HAS RIGHTLY BEEN ADDED BY THE ASSESSING OFFICE R AND RELIANCE WAS ALSO PLACED IN THE CASE OF TECHNIP OFFSHORE CONTRACTING BV (2009) 29 SOT 33 (DEL.) AND SO FAR AS UTTRAKHAND HIGH COURT JUDGMENT IS CON CERNED, WHICH HAS BEEN RELIED UPON BY THE CIT(A), IT WAS SUBMITTED THAT TH E SAME IS NOT WITH REGARD TO SERVICE TAX, BUT RELATING TO CUSTOM DUTY, THEREFORE , DISTINGUISHABLE ON FACTS. AS SUCH ORDER OF CIT(A) NEEDS REVERSAL WHICH MAY BE RE VERSED. 7. LD.COUNSEL FOR THE ASSESSEE WHILE RELYING UPON ITAT, G BENCH DECISION, WHICH IS DIRECTLY ON THE POINT THAT SERVICE TAX IS TO BE EXCLUDED FOR COMPUTING PRESUMPTIVE INCOME U/S 44BB OF THE ACT, AND IN THAT DECISION VARIOUS EARLIER DECISIONS HAVE BEEN CONSIDERED INCLUDING THAT OF HO NBLE UTTRAKHAND HIGH COURT DECISION. THEREFORE, IT WAS PLEADED FOR CONFIRMATIO N OF THE IMPUGNED ORDER. 8. WE HAVE HEARD BOTH THE SIDES, CONSIDERED THE MA TERIAL ON RECORD AND FIND THAT SIMILAR ISSUE AROSE BEFORE G BENCH OF THE TR IBUNAL IN THE CASE OF SEDCO FOREX INTERNATIONAL DRILLING INC. VS. ADDL. DIT (IN TERNATIONAL TAXATION) IN ITA NO.5284/DEL./2011, HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE AND RELEVANT I.T.A. NO.4973/DEL./2011 (A.Y. : 2007-08) 4 PORTION OF THE DECISION, WHICH HAS BEEN DEALT WITH BY THE TRIBUNAL IN ITS ORDER AS UNDER: 4. ..REGARDING REIMBURSEMENT OF SERVICE TAX, TH E LD. AR POINTED OUT THAT THOUGH THE ITAT DELHI BENCH IN THEIR DECIS ION IN THE CASE OF DIT (INTERNATIONAL TAXATION) VS. TECHNIP OFFSHORE CONTR ACTING BV,29 SOT 33(DELHI) CONCLUDED THAT SERVICE TAX COLLECTED BY T HE ASSESSEE BEING DIRECTLY IN CONNECTION WITH SERVICES OR FACILITIES OR SUPPLY SPECIFIED U/S 44BB OF THE ACT PROVIDED BY THE ASSESSEE TO ONGC, H AVE TO BE INCLUDED IN THE TOTAL RECEIPTS FOR THE PURPOSE OF DETERMINAT ION OF PRESUMPTIVE PROFIT U/S 44BB, SUBSEQUENTLY, HONBLE UTTARAKHAND HIGH CO URT DECISION DATED 24TH JULY, 2009 IN THE CASE OF DIT & ANR. VS. CHLUM BERGER ASIA SERVICES LTD. ,317 ITR 156(UTTARAKHAND) CONCLUDED THAT REIM BURSEMENT OF CUSTOM DUTY PAID BY THE ASSESSEE COULD NOT FORM PART OF AM OUNT FOR THE PURPOSE OF DEEMED PROFITS U/S 44BB UNLIKE THE OTHER AMOUNTS RE CEIVED TOWARDS REIMBURSEMENT. FOLLOWING THE VIEW IN THIS DECISION, MUMBAI BENCH IN THEIR DECISION DATED 20.4.2011 IN I.T.A. NO.8845/MU M/2010 IN THE CASE OF ISLAMIC REPUBLIC OF IRAN SHIPPING LINES VS. DCIT,20 11-TOII-77-MUM- INTL, HELD THAT SERVICE TAX BEING A STATUTORY LIABI LITY, WOULD NOT INVOLVE ANY ELEMENT OF PROFIT AND A SERVICE PROVIDER HAVING COLLECTED THE AMOUNT ON BEHALF OF THE GOVERNMENT, ACCORDINGLY, THE SAME COULD NOT BE INCLUDED IN THE TOTAL RECEIPTS FOR DETERMINING THE PRESUMPTI VE INCOME, THE LD. AR ADDED. ON THE OTHER HAND, THE LD. DR SUPPORTED THE FINDINGS OF THE AO. 5. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE FACTS OF THE CASE AS ALSO THE AFORESAID DECISIONS RELIED UPON BY THE LD. AR. WE FIND THAT HONBLE JURISDICTIONAL HIGH COURT IN THEIR AFORESAI D DECISION HALLIBURTON OFFSHORE SERVICES INC. (SUPRA) WHILE ADJUDICATING A N IDENTICAL ISSUE RELATING TO REIMBURSEMENT OF FREIGHT & TRANSPORT CH ARGES IN RESPECT OF EQUIPMENT, CONCLUDED AS UNDER:- 5. SEC. 44BB PROVIDES THAT THE DEEMED PROFITS AND GAINS UNDER SUB-S. (1) SHALL BE @ 10 PER CENT OF THE AGGREGATE AMOUNT SPECIFIED IN SUB-S. (2). WE PROCEED TO ANALYZE SUB-S. (2). CL AUSE (A) OF SUB-S. (2) REFERS TO THE AMOUNTS, (A) PAID TO THE ASSESSEE (WHETHER IN OR OUT OF INDIA) ON ACCOUNT OF THE PROVISION OF SERVIC ES AND FACILITIES IN CONNECTION WITH, OR SUPPLY OF PLANT AND MACHINER Y ON HIRE USED, OR TO BE USED, IN THE PROSPECTING FOR, OR EXTRACTI ON OR PRODUCTION OF, MINERAL OILS IN INDIA, AND (B) PAYABLE TO THE ASSESSEE (WHETHER IN OR OUT OF INDIA) ON ACCOUNT OF THE PROVISION OF SERVICES AND FACILITIES IN CONNECTION WITH, OR SUPPLY OF PLANT A ND MACHINERY ON HIRE USED, OR TO BE USED, IN THE PROSPECTING FOR, OR EXTRACTION OR I.T.A. NO.4973/DEL./2011 (A.Y. : 2007-08) 5 PRODUCTION OF, MINERAL OILS IN INDIA. CLAUSE (B) OF SUB-S. (2) REFERS TO THE AMOUNTS, (A) RECEIVED BY ASSESSEE IN INDIA O N ACCOUNT OF THE PROVISION OF SERVICES AND FACILITIES IN CONNECTION WITH, OR SUPPLY OF PLANT AND MACHINERY ON HIRE USED, OR TO BE USED, IN THE PROSPECTING FOR, OR EXTRACTION OR PRODUCTION OF, MINERAL OILS O UTSIDE INDIA, AND (B) DEEMED TO BE RECEIVED BY THE ASSESSEE IN INDIA ON ACCOUNT OF THE PROVISION OF SERVICES AND FACILITIES IN CONNECT ION WITH, OR SUPPLY OF PLANT AND MACHINERY ON HIRE USED, OR TO B E USED, IN THE PROSPECTING FOR, OR EXTRACTION OR PRODUCTION OF MIN ERAL OILS OUTSIDE INDIA. 6. THUS, IT IS CLEAR FROM THE PERUSAL OF S. 44BB TH AT ALL THE AMOUNTS EITHER PAID OR PAYABLE (WHETHER IN INDIA OR OUTSIDE INDIA) OR RECEIVED OR DEEMED TO BE RECEIVED (WHETHER IN INDIA OR OUTSIDE INDIA) ARE MUTUALLY INCLUSIVE. THIS AMOUNT IS THE B ASIS OF DETERMINATION OF DEEMED PROFITS AND GAINS OF THE AS SESSEE @ 10 PER CENT. THEREFORE, IN OUR VIEW, THE TRIBUNAL FELL INT O ERROR IN NOT APPRECIATING THE DIFFERENCE BETWEEN THE AMOUNT AND THE INCOME. AMOUNT PAID OR RECEIVED REFERS TO THE TOTAL PAYMENT TO THE ASSESSEE OR PAYABLE TO THE ASSESSEE OR DEEMED TO BE RECEIVED BY THE ASSESSEE, WHEREAS INCOME HAS BEEN DEFINED UNDER S. 2(24) OF THE IT ACT AND S. 5 AND S. 9 DEAL WITH THE INCOME AND ACCR UED INCOME AND DEEMED INCOME. SEC. 4 IS THE CHARGING SECTION OF TH E IT ACT AND DEFINITION AS WELL AS THE INCOMES REFERRED IN SS. 5 AND 9 ARE FOR THE PURPOSE OF IMPOSING THE INCOME-TAX UNDER S. 143 (3) . SEC. 44BB IS A COMPLETE CODE IN ITSELF. IT PROVIDES BY A LEGA L FICTION TO BE THE PROFITS AND GAINS OF THE NON-RESIDENT ASSESSEE ENGA GED IN THE BUSINESS OF OIL EXPLORATION @ 10 PER CENT OF THE AG GREGATE AMOUNT SPECIFIED IN SUB-S. (2). IT IS NOT IN DISPUTE THAT THE AMOUNT HAS BEEN RECEIVED BY THE ASSESSEE COMPANY. THEREFORE, THE A O ADDED THE SAID AMOUNT WHICH WAS RECEIVED BY THE NON-RESIDENT COMPANY RENDERING SERVICES AS PER PROVISIONS OF S. 44BB TO THE ONGC AND IMPOSED THE INCOME-TAX THEREON. 5.1 IN THE LIGHT OF VIEW TAKEN BY THE HONBLE JURI SDICTIONAL HIGH COURT IN THEIR AFORESAID DECISION, ESPECIALLY WHEN THE LD . AR ACCEPTED THE POSITION THAT THE ISSUE IS SQUARELY COVERED BY THE AFORESAID DECISION WHILE NO OTHER CONTRARY DECISION WAS BROUGHT TO OUR NOTIC E NOR THE LD. AR PLACED ANY MATERIAL BEFORE US, CONTROVERTING THE AFORESAID FINDINGS OF THE DRP AND THE AO, WE HAVE NO HESITATION IN UPHOLDING THE FINDINGS OF THE AO IN THE LIGHT OF DIRECTIONS OF THE DRP IN PARA 3.2 OF T HEIR ORDER DATED 2ND I.T.A. NO.4973/DEL./2011 (A.Y. : 2007-08) 6 SEPTEMBER, 2011 IN RESPECT OF REIMBURSEMENT OF AMOU NT ON ACCOUNT OF FUEL RECHARGE. IN VIEW THEREOF, GROUND NO. 2 IN THE APPEAL IS DISMISSED. 6. AS REGARDS REIMBURSEMENT OF AMOUNT IN RESPECT O F SERVICE TAX, AS POINTED OUT BY THE LD. AR, THE ITAT DELHI BENCH IN THEIR DECISION IN TECHNIP OFFSHORE CONTRACTING BV(SUPRA) CONCLUDED TH AT SERVICE TAX COLLECTED BY THE ASSESSEE BEING DIRECTLY IN CONNECT ION WITH SERVICES OR FACILITIES OR SUPPLY SPECIFIED U/S 44BB OF THE ACT PROVIDED BY THE ASSESSEE TO ONGC, HAVE TO BE INCLUDED IN THE TOTAL RECEIPTS FOR THE PURPOSE OF DETERMINATION OF PRESUMPTIVE PROFIT U/S 44BB OF THE ACT. IT IS WELL ESTABLISHED THAT SECTION 44BB OF THE ACT IS A SPECI AL PROVISION, TREATING 10 PER CENT OF THE AGGREGATE AMOUNT SPECIFIED IN SUB-S . (2) OF S. 44BB AS DEEMED PROFITS AND GAINS OF SUCH NON-RESIDENT ASSES SEE WHO IS ENGAGED IN THE BUSINESS OF PROVIDING SERVICES OR FACILITIES IN CONNECTION WITH, OR SUPPLYING PLANT AND MACHINERY ON HIGHER USED, OR TO BE USED, IN THE PROSPECTING FOR, OR EXTRACTION OR PRODUCTION OF, MI NERAL OILS. THE AMOUNT REFERRED IN SUB-S. (2) OF S. 44BB ARE THE AMOUNTS ( A) PAID TO THE ASSESSEE (WHETHER IN OR OUT OF INDIA) ON ACCOUNT OF THE PROV ISION OF SERVICES AND FACILITIES IN CONNECTION WITH, OR SUPPLY OF PLANT A ND MACHINERY ON HIGHER USED, OR TO BE USED, IN THE PROSPECTING FOR, OR EXT RACTION OR PRODUCTION OF, MINERAL OILS IN INDIA, (B) PAYABLE TO THE ASSESSEE (WHETHER IN OR OUT OF INDIA) ON ACCOUNT OF THE PROVISION OF SERVICES AND FACILITIES IN CONNECTION WITH, OR SUPPLY OF PLANT AND MACHINERY ON HIGHER U SED, OR TO BE USED, IN THE PROSPECTING FOR, OR EXTRACTION OR PRODUCTION OF , MINERAL OILS IN INDIA, (C) RECEIVED BY THE ASSESSEE IN INDIA ON ACCOUNT OF THE PROVISION OF SERVICES AND FACILITIES IN CONNECTION WITH, OR SUPP LY OF PLANT AND MACHINERY ON HIGHER USED, OR TO BE USED, IN THE PRO SPECTING FOR, OR EXTRACTION OR PRODUCTION OF, MINERAL OILS OUTSIDE I NDIA AND (D) DEEMED TO BE RECEIVED BY THE ASSESSEE IN INDIA ON ACCOUNT OF THE PROVISION OF SERVICES AND FACILITIES IN CONNECTION WITH, OR SUPP LY OF PLANT AND MACHINERY ON HIGHER USED, OR TO BE USED, IN THE PRO SPECTING FOR, OR EXTRACTION OR PRODUCTION OF, MINERAL OILS OUTSIDE I NDIA. THE SERVICE TAX IS A STATUTORY LIABILITY LIKE CUSTOM DUTY. HONBLEUTTARA KHAND HIGH COURT IN THEIR DECISION IN SCHLUMBERGER ASIA SERVICES LTD.(S UPRA) CONCLUDED THAT REIMBURSEMENT OF CUSTOM DUTY PAID BY THE ASSESSEE C OULD NOT FORM PART OF AMOUNT FOR THE PURPOSE OF DEEMED PROFITS U/S 44BB U NLIKE THE OTHER AMOUNTS RECEIVED TOWARDS REIMBURSEMENT. FOLLOWING THE VIEW IN THIS DECISION, MUMBAI BENCH IN THEIR DECISION IN ISLAMIC REPUBLIC OF IRAN SHIPPING LINES(SUPRA)HELD THAT SERVICE TAX BEING A STATUTORY LIABILITY, WOULD NOT INVOLVE ANY ELEMENT OF PROFIT AND ACCORDI NGLY, THE SAME COULD NOT BE INCLUDED IN THE TOTAL RECEIPTS FOR DETERMINI NG THE PRESUMPTIVE I.T.A. NO.4973/DEL./2011 (A.Y. : 2007-08) 7 INCOME. IN THE LIGHT OF VIEW TAKEN BY THE MUMBAI BE NCH, ESPECIALLY WHEN THE LD. DR DID NOT PLACE ANY MATERIAL BEFORE US, CO NTROVERTING THE AFORESAID FINDINGS OF THE LD. CIT(A) SO AS TO ENABLE US TO TA KE A DIFFERENT VIEW IN THE MATTER NOR BROUGHT TO OUR NOTICE ANY CONTRARY DECIS ION, WE ARE OF THE OPINION THAT SERVICE TAX PAID BY THE ASSESSEE COULD NOT FORM PART OF AMOUNT FOR THE PURPOSE OF DEEMED PROFITS U/S 44BB UNLIKE T HE OTHER AMOUNTS RECEIVED TOWARDS REIMBURSEMENT. 9. SINCE THIS ISSUE IS COVERED BY EARLIER DECISION OF ITAT, G BENCH, DELHI, WHICH IS ON SIMILAR POINT AND NO CONTRARY OR ANY HI GHER COURTS PRECEDENT HAS BEEN CITED, THEREFORE, WHILE FOLLOWING THE SAID DECISION , WE UPHOLD THE ORDER OF .CIT(A) AND DISMISS THE PRESENT APPEAL. 10. AS A RESULT, THE APPEAL FILED BY THE DEPARTMEN T IS DISMISSED. THEREFORE, FOLLOWING THE SAID DECISIONS, WE UPHOLD THE ORDER OF THE CIT(A) AND DISMISS THE APPEAL OF THE REVENUE. 7. AS A RESULT, THE APPEAL FILED BY THE DEPARTMENT GETS DISMISSED. ORDER PRONOUNCED IN OPEN COURT SOON AFTER THE CONC LUSION OF THE HEARING ON 18.12.2012. SD/- SD/- (T.S. KAPOOR) ACCOUNTANT MEMBER (U.B.S. BEDI ) JUDICIAL MEMBER DATED : DEC. 18, 2012 SKB COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A)-XXIX, NEW DELHI. 5. CIT(ITAT) DEPUTY REGISTRAR, ITAT