BOURBON OFFSHORE, NEW DELHI V. ASST DIT (IT) 3(2), MUMBAI

ITA 5840/MUM/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 5098 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 24-09-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJESH R PRASAD
• Assessee Lawyers: NE ERAJ AGARWALA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'B' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI RAJENDRA, ACCOUNTANT MEMBER ITA NO. 5840/MUM/2012 (ASSESSMENT YEAR: 2009-10) M/S. BOURBORN OFFSHORE ASST. DIRECTOR OF INCOME TAX C/O. NANGIA & CO INTERNATIONAL TAXATION 3(2) SUITE 4A-PLAZA M-6 VS. SCINDIA HOUSE, BALLARD PIER JASOLA, NEW DELHI 110025 N.M. ROAD, MUMBAI 400038 PAN - AADCB7150J APPELLANT RESPONDENT APPELLANT BY: SHRI NEERAJ AGARWALA RESPONDENT BY: SHRI RAJESH R. PRASAD DATE OF HEARING: 20.11.2013 DATE OF PRONOUNCEMENT: 20.11.2013 O R D E R PER D. MANMOHAN, V.P. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 26.07.2012 PASSED BY THE CIT(A)-10, MUMBAI AND IT P ERTAINS TO A.Y. 2009-10. 2. THE FOLLOWING GROUND WAS RAISED BY THE ASSESSEE: - ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CI T(A) ERRED IN HOLDING THAT MOBILIZATION REVENUE OF ` 18,86,73,004/- PROPORTIONATE TO THE VOYAGE OF THE VESSELS UNDERTAKEN OUTSIDE INDIAN TER RITORIAL WATERS WAS INCLUDIBLE IN THE GROSS RECEIPTS SUBJECT TO THE PRE SUMPTIVE TAX SCHEME OF SECTION 44BB OF THE INCOME-TAX ACT, 1961. 3. THE ASSESSEE IS A NON-RESIDENT COMPANY. FOR THE ASS ESSMENT YEAR UNDER CONSIDERATION IT DECLARED TOTAL INCOME OF ` 5,86,48,774/-. DURING THE COURSE OF SCRUTINY PROCEEDINGS THE AO NOTICED THAT THE ASSESSEE EARNED REVENUES TO THE EXTENT OF ` 77,51,60,748/- AND HAS OFFERED A SUM OF ` 5,86,48,774/- UNDER THE PROVISIONS OF SECTION 44BB OF THE INCOME TAX ACT. ACCORDING TO THE ASSESSEE IT IS ENGAGED IN PROVIDIN G SUPPLY OF PLANT AND MACHINERY FOR EXTRACTION OR PRODUCTION OF MINERAL O ILS. IT HAS NOT INCLUDED IN ITS TAXABLE INCOME THE RECEIPT OF ` 18,86,73,004/- ON ACCOUNT OF MOBILISATION ITA NO. 5840/MUM/2012 M/S. BOURBORN OFFSHORE 2 REVENUE ATTRIBUTABLE TO ACTIVITIES OUTSIDE THE TERR ITORIAL WATERS. ACCORDING TO THE AO MOBILISATION CHARGES ARE ASSESSABLE TO TAX I N INDIA SINCE THERE IS NO SCOPE TO SPLIT THE AMOUNT UNDER SECTION 44BB(1) OF THE ACT. IT WAS ALSO NOTICED THAT THE ISSUE STANDS SQUARELY COVERED BY T HE FOLLOWING DECISIONS: - I. CIT V S . HALLIBURTON OFFSHORE SERVICES INC. (UTTARKHAND) 300 ITR 265 II. SEDCO FOREX INTERNATIONAL INC. VS. CIT 299 ITR 238 (UTTARKHAND) 4. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A) CONTENDING, INTER ALIA, THAT THE IMPUGNED AMOUNT IS NOT CHARGEA BLE TO TAX. THOUGH IT RELIED ON CERTAIN DECISIONS OF THE TRIBUNAL, BUT IT ADMITTED IN ITS WRITTEN SUBMISSION DATED 7 TH JUNE, 2012 THAT THE ISSUE IS COVERED AGAINST THE ASSESSEE IN THE LIGHT OF THE AFOREMENTIONED DECISIO NS OF THE HON'BLE HIGH COURT AND THE ISSUE IS PENDING IN APPEAL BEFORE THE HON'BLE SUPREME COURT. IN THE LIGHT OF THE DECISIONS OF THE HON'BLE HIGH C OURT, THE LEARNED CIT(A) UPHELD THE ORDER OF THE AO AND DISMISSED THE APPEAL FILED BY THE ASSESSEE. 5. FURTHER AGGRIEVED, ASSESSEE IS IN APPEAL BEFORE US. AT THE TIME OF HEARING THE LEARNED COUNSEL FOR THE ASSESSEE RELIED UPON THE DECISION OF THE ITAT DELHI (THIRD MEMBER) IN THE CASE OF SAIPEM S.P .A. VS. DCIT REPORTED IN 88 ITD 213 BUT FAIRLY ADMITTED THAT THE DECISIONS O F THE HON'BLE UTTARKHAND HIGH COURT SQUARELY COVER THE ISSUE ON HAND AND THE RE IS NO CONTRARY DECISION OF ANY OTHER HIGH COURT ON THE ISSUE. 6. WE HAVE HEARD THE LEARNED D.R. ALSO ON THIS ISSUE. SINCE THE ASSESSEES COUNSEL FAIRLY ADMITTED THAT THE ISSUE I S SQUARELY COVERED AGAINST THE ASSESSEE AND COULD NOT FURNISH ANY CASE LAW WHE REIN A CONTRARY VIEW IS TAKEN, WE DO NOT FIND ANY INFIRMITY IN THE ORDER PA SSED BY THE LEARNED CIT(A). WE, THEREFORE, DISMISS THE APPEAL FILED BY THE ASSESSEE AND UPHOLD THE ORDER OF THE LEARNED CIT(A). ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH NOVEMBER, 2013. SD/- SD/- (RAJENDRA) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATED: 20 TH NOVEMBER, 2013 ITA NO. 5840/MUM/2012 M/S. BOURBORN OFFSHORE 3 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 10, MUMBAI 4. DIRECTOR OF INCOME TAX (IT) - 11, MUMBAI 5. THE DR, B BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.