Transocean Offshore International Ventures Ltd., New Delhi V. Addl. DIT, Dehradun

ITA 501/DEL/2013

• Counselvise Citation: 50120114 RSA 2013
• Duration Of Justice: 1 year(s) 8 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-10-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 29-09-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 28-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : H NEW DELHI BEFORE SHRI I.C. SUDHIR, JM AND SHRI J.SUDHAKAR REDDY, J.M ITA NO: 501/DEL/2013 AY : - 2009-10 TRANSOCEAN OFFSHORE INTERNATIONAL VENTURES LTD. VS . ADDL. DIT C/O NANGIA & COMPANY INTERNATIONAL TAXATION SUITE 4A, PLAZA M-6, JASOLA, INCOME TAX OFFICE, NEW DELHI- 110 025 SUBHASH ROAD, PAN AABCT7316B DEHRADUN PIN 248001 (APPELLANT) (RESP ONDENT) APPELLANT BY :M R. AMIT ARORA, CA RESPONDENT :SH RI VIVEK KUMAR, SR. DR O R D E R PER J.SUDHAKAR REDDY, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AG AINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) II DATED 8.1 1.2012 FOR THE ASSESSMENT YEAR 2009-10. 2. FACTS IN BRIEF: THE ASSESSEE IS A COMPANY INCORPORATED UNDER THE LAWS OF CAMYAN ISLANDS HAVING ITS PROJECT OFFICE SI TUATED AT MUMBAI. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF PROVIDING SE RVICES AND FACILITIES IN CONNECTION WITH EXPLORATION, EXPLOITATION AND PRODU CTION OF MINERAL OIL IN INDIA. 3. THE GROUNDS OF APPEAL ARE AS FOLLOWS :- GROUND NO. 1 ITA 501/DEL/2013 AY 2009-10 TRANSOCEAN OFFSHORE INTERNATIONAL VENTURES LTD. 2 THAT THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW I N AFFIRMING THE ACTION OF THE AO IN HOLDING THAT THE SUM OF RS. 380,811,064/- REC EIVED BY THE APPELLANT TOWARDS FEE FOR MOBILIZATION OF THE VESSEL OUTSIDE INDIA, IS TO BE INCLUDED IN THE GROSS RECEIPTS U/S 44BB OF THE ACT WITHOUT APPR ECIATING THAT THE SAID AMOUNT DOES NOT ACCRUE OR ARISE TO THE APPELLANT IN INDIA IN TERMS OF S. 5 (2) READ WITH S. 9 OF THE ACT. GROUND NO. 2 THAT THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW I N AFFIRMING THE ACTION OF THE AO IN HOLDING THAT THE AMOUNTS AGGREGATING TO RS. 5 27, 581,886/- RECEIVED BY THE APPELLANT FROM ITS CUSTOMERS AS REIMBURSEMENT O F ACTUAL EXPENSES INCURRED BY THE APPELLANT ON THEIR BEHALF IS TO BE INCLUDED IN THE GROSS RECEIPTS U/S 44BB OF THE INCOME TAX ACT, 1961 (THE ACT). GROUND NO. 3 BASED ON THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LD. CIT(A) ERRED IN UPHOLDING THE ORDER OF THE AO THAT RECEIPTS OF RS. 377,581,234/- ON ACCOUNT OF SERVICE TAX WERE INCLUDIBLE IN THE GROSS RECEIPTS F OR THE PURPOSE OF DETERMINING INCOME UNDER SECTION 44BB OF THE INCOME-TAX ACT, 19 61. THAT BASED ON THE FACTS AND CIRCUMSTANCES OF THE CA SE, THE LD. CIT ERRED IN NOT FOLLOWING THE JUDGMENT OF THE JURISDICTIONAL IN COME TAX APPELLATE TRIBUNAL, DELHI G BENCH IN ITA NO. 5284/DEL/2011 IN THE CAS E OF SEDCO FOREX INTERNATIONAL DRILLING INC. VS. ADDL. DIRECTOR OF I NCOME-TAX WHEREIN IT WAS HELD THAT SERVICE-TAX RECEIPTS WERE NOT INCLUDIBLE IN TH E GROSS RECEIPTS FOR THE ITA 501/DEL/2013 AY 2009-10 TRANSOCEAN OFFSHORE INTERNATIONAL VENTURES LTD. 3 PURPOSE OF DETERMINING INCOME UNDER SECTION 44BB OF THE INCOME-TAX ACT, 1961. 4. WE HAVE HEARD SHRI AMIT ARORA, CHARTERTED ACCOUNTANT ON BEHALF OF THE ASSESSEE AND SHRI VIVEK KUMAR, THE LD. SR. DEPA RTMENTAL REPRESENTATIVE ON BEHALF OF THE REVENUE. 5. ON A CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMS TANCES OF THE CASE, ON PERUSAL OF MATERIAL ON RECORD, ORDERS OF THE AU THORITIES BELOW, CASE LAWS CITED, WE HOLD AS FOLLOWS :- 5.1 GROUND NO. 1 IS ADMITTEDLY COVERED AGAINST THE ASSESSEE BY THE FOLLOWING JUDGMENTS :- 1. SEDCO FOREX INTERNATIONAL INC. V CIT, 169 TAXMA N 138 (UTTARAKHAND) 2. CIT VS. TRANS OCEAN OFFSHORE INC. 170 TAXMAN 4 59 (UTTARAKHAND) 3. ASSTT, CIT VS. REAL IMAGE MEDIA TECHNOLOGIES (P.) LTD. TAXMAN 429 (UTTARAKHAND) 5.2. GROUND NO. 2 IS ADMITTEDLY COVERED AGAINST TH E ASSESSEE BY THE JUDGMENT IN THE CASE OF DIRECTOR OF INCOME-TAX VS. SCHLUMBERGER ASIA SERVICES LTD. (2009) 317 ITR 156 (UTR) 6. RESPECTFULLY FOLLOWING THE SAME WE DISMISS TH ESE TWO GROUNDS OF THE ASSESSEE. 7. GROUND NO. 3 IS ADMITTEDLY COVERED IN FAVOUR O F THE ASSESSEE BY THE DECISION OF THE F BENCH OF THE TRIBUNAL AND ITA NO. 5609/DEL/2012 ORDER DATED 28.6.2013, WHEREIN THE TRIBUNAL FOLLOWS THE O RDER IN THE CASE OF M/S. MITCHELL DRILLING INTERNATIONAL PTY. LTD. , ITA NO. 698/DEL/2012 ORDER DATED ITA 501/DEL/2013 AY 2009-10 TRANSOCEAN OFFSHORE INTERNATIONAL VENTURES LTD. 4 31.8.2012 AND ADJUDICATED THE ISSUE IN FAVOUR OF TH E ASSESSEE. CONSISTENT WITH THE VIEW TAKEN THEREIN WE ALLOW GROUND NO. 3,4 AND 5. LD. DR RELIED ON THE DECISION OF THE TRIBUNAL IN THE CASE OF DEPUTY DIRECTOR OF INCOME-TAX (INTERNATIONAL TAXATION), DEHRADUN V. TECHNIP OFFSH ORE CONTRACTING BV (2009) 29 SOT 33 (DELHI) AND ANOTHER DECISIONS, WHI CH TO OUR MIND ARE NOT APPLICABLE TO THE FACTS OF THE CASE. HENCE GROUND N O. 3,4 AND 5 ARE ALLOWED. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED IN PART. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH OCTOBER,2014. SD/- SD/- (I.C. SUDHIR) (J.SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: THE 15 TH OCTOBER,2014 *VEENA COPY OF THE ORDER FORWARDED TO: 1. APPELLANT; 2. RESPONDENT; 3. CIT; 4. CIT(A); 5. DR; 6. GUARD FILE BY ORDER ASST. REGISTRAR