WELLPERFORM APS,DENMARK V. DEPUTY COMMISSIONER OF INCOME TAX, INTERNATIONAL TAXATION, DELHI

ITA 3231/DEL/2023

AI Insights

The case involves WELLPERFORM APS appealing against the assessment order by the Deputy Commissioner of Income Tax (DCIT), which taxed their receipts from AWEL as FTS. The primary legal contention was whether the services provided by WELLPERFORM APS, related to well engineering and project management for mineral oil extraction, should be taxed under the specific provisions of Section 44BB, which allows for a presumptive taxation scheme for non-residents engaged in such activities. The Tribunal examined the applicability of Section 44BB in light of the Supreme Court's decision in ONGC Vs. CIT and relevant CBDT circulars, ultimately deciding in favor of the appellant.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 473573 (ITAT-DELHI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-03-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2021-2022
• Other Referred Cases: ONGC Vs. CIT (2015) 59 taxmann.com 1 (SC)
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAY B. BASANTA
• Assessee Lawyers: K.M. GUPTA
• Keywords: Initiation of penalty proceedings; Deemed to accrue or arise in india
• Section: 143(3); 43; 22; 13; 234B; 28; 2; 9(1); 9(1); 9(1); 44BB; 115A; 44DA

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH: ‘D’ NEW DELHI BEFORE SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER ITA No.3231/Del/2023 Assessment Year: 2021-22 WELLPERFORM APS, C/o-Wellperform Engineering Private Limited, S-401, IT Park Building, CTS 1651, (B) Vlg. Mar, Next to Mittal Estate, Andheri East, Mumbai Vs. DCIT, International Taxation, Delhi PAN:AABCW9373J (Appellant) (Respondent) ORDER PER SATBEER SINGH GODARA, JM This assessee’s appeal for assessment year 2021-22, arises against the DCIT, Circle- Intl. Taxation-3(1)(1)/Assessing Officer, Delhi’s DIN and order No. ITBA/AST/S/143(3)/2023- 24/1056504322(1), dated 25.09.2023 involving proceedings under Assessee by Sh. K.M. Gupta, Adv. Ms. Shruti Khimta, AR Sh. Jaskaran, CA Department by Sh. Vijay B. Basanta, CIT(DR) Date of hearing 11.03.2025 Date of pronouncement 26.03.2025 ITA No.3231/Del/2023 2 | P a g e section 143(3) r.w.s. 144C(13) of the Income-tax Act, 1961 (hereinafter referred to as ‘the Act’). 2. Heard both the parties. Case file perused. 3. The assessee raised the following substantive grounds in the instant appeal: 1. On the facts and circumstances of the case, the assessment order passed by the Learned Assessing Officer (\"Ld. AO) under section 143(3) r.w.s. 144C(13) of the Income tax Act, 1961 (the Act) pursuant to the directions of the Ld. Dispute Resolution Panel (\"Ld. DRP) is bad in law, unlawful and unjust. Taxability of receipt amounting to INR 7.17.08.077 from Adani Welspun Exploration Limited (AWEL) earned on account of rendering/provision of services relating to prospecting for, or extraction or production of, mineral oils India as Fee for Technical Services (CFTS'). 2. On the facts and circumstances of the case and in law, the Ld. AO/Ld. DRP has erred in holding that the receipt of INR 7,17,98,077 from AWEL on account of provision of services in the nature of well engineering, well design, well planning, supervision of drilling project management and testing services in relation to prospecting for, or extraction or production etc. of mineral oil is taxable as FTS disregarding the details furnished by the Appellant and without providing any cogent reasons for doing 50. 2.1. The Ld. AO/Ld. DRP has not appreciated the fact that services provided by the Appellant are specifically covered under the provisions of section 44BB of the Act and the same cannot be taxed as FTS as per the provisions of the Act. 2.2. The Ld. AO/DRP (majority view) has not followed the principle of judicial discipline i.e. not construed the orders passed by Jurisdictional Tribunals and High Courts and especially the ruling of Apex Court in the case of ONGC Vs. CIT (2015) 59 taxmann.com 1 (SC) which has specifically granted benefit of section 44BB of the Act or the similar kind of services as in the case of the Appellate. 2.3. That the decision of third Member of the DRP bench has given a dissenting view (ie., separate direction in favor of the Appellant) holding that the nature of services are nearly the same as given in ONGC (supra) is correct and in consonance with provisions of section 44BB of the Act. Incorrect computation of taxable income (erroneous additions) ITA No.3231/Del/2023 3 | P a g e 3. On the facts and circumstances of the case and in law, the Ld. AO has erred in inadvertently considering the income of INR 15,07,75,962 without any basis. Levy of interest under section 234 of the Act 4. On the facts and circumstances of the case and in law, the Ld. AO has erred in charging interest of INR 8,47,990 under section 234A of the Act despite the fact that the return of income was filed before the due date of filing for the year under consideration. Levy of interest under section 234B of the Act 5. On the facts and circumstances of the case and in law, the Ld. AO has erred in charging interest of INR 50,87,940 under section 234B of the Act. Initiation of penalty proceedings 6. On the facts and circumstances of the case and in law, the Ld. AO has erred in initiating penalty proceedings under section 270A of the Act against the Appellant on account of the addition made in the final assessment order. All the above grounds are without prejudice to each other. The Appellant craves leave to add, amend, vary. omit or substitute any of the aforesaid grounds of appeal at any time before or at the time of hearing of the appeal. The Appellant prays that appropriate relief be granted based on the said grounds of appeal and the facts and circumstances of the case.” 4. Learned counsel fairly stated during the course of hearing that the assessee’s sole substantive grievance raised in the instant appeal challenges the correctness of both the learned lower authorities’ action assessing its receipts in question amounting to Rs.7,17,98,077/- received from Adani Welspun Exploration Limited (‘AWEL’), as per the agreement dated 03.09.2019; as representing consideration on account of provision of services relating to well engineering, well design, well planning, supervision of drilling project management and testing operations in relation to ITA No.3231/Del/2023 4 | P a g e prospecting for, or extraction or production of, mineral oils in India, as Fee for Technical Services “FTS” @ 10% on gross basis plus search cess going by section 115A thereby rejecting its case seeking assessment thereof under the presumptive scheme under section 44BB. 5. That being the sole substantive issue herein, learned CIT(DR) vehemently supports both the lower authorities’ action on the ground that the assessee’s case does not fall under section 44BB of the Act since its receipts in question have to be assessed under section 9(1)(vi) as well as under article 13 of India – Denmark Double Taxation Avoidance Agreement (DTAA). 6. We have given our thoughtful consideration to the assessee’s and Revenue’s foregoing vehement rival submissions. We find no reason to accept the Revenue’s stand in question rejecting the assessee’s claim seeking assessment under section 44BB of the Act. We make it clear first of all that section 44BB is indeed in the nature of a special provision for computing profits and gains in connection with the business of exploration etc. of mineral oils which is not even doubted by the both learned lower authorities in their respective findings. This being the clinching factual backdrop, ITA No.3231/Del/2023 5 | P a g e it is noticed that hon’ble apex court’s landmark decision in Oil & Natural Gas Corporation Ltd. Vs. CIT (2015) 376 ITR 306 (SC) has already settled the instant issue in assessee’s favour and against the department as under: \"6. The appellant-ONGC and a non-resident/foreign company one M/s. Foramer France had entered into an agreement by which the non-resident company had agreed to make available supervisory staff and personnel having experience and expertise for operation and management of drilling rigs Sagar Jyoti and Sagar Pragati for the assessment year 1985-86 and the drilling rig Sagar Ratna for the assessment year 1986-87. Faced with the different views taken by the authorities under the Act, as mentioned above, the High Court proceeded to analyse the different clauses of the contract between the parties. A consideration of such analysis made by the High Court would go to show that it had come to light before the High Court that the contract between the parties visualized operation of the oil rigs including drilling operations by the personnel made available under the contracts/agreements, which fact was further stated on affidavit before the High Court by an authorized official of the ONGC in the following terms. “That under the said agreement, Foramer was required, through its personnel listed in Exhibit-A to the said agreement, to carry out inter-alia the drilling operations specified in clause 4.3 to 4.10 of the said agreement.” Despite the above, the High Court took the view that under the agreement payment to M/s. Foramer France was required to be made at the rate of 3450 USD per day and that the contract clearly contemplated rendering of technical services by personnel of the non-resident company. Specifically, taking the view that the contract did not mention that the personnel of the non-resident company was also carrying out the work of drilling of wells and as the company had received fees for rendering service the payments made were liable to be taxed under the provisions of Section 44D of the Act. As already noticed, in the rest of the appeals before the High Court the aforesaid decision dated 15.12.2005 passed in I.T.A. No. 239 of 2001 was followed on the basis that the facts in all the appeals were similar to those involved in I.T.A. No. 239 of 2001. 7. It will be convenient and in fact necessary for the purposes of present adjudication to take a careful note of the provisions ITA No.3231/Del/2023 6 | P a g e of Sections 44BB, 44D and also clause (vii) of Explanation 2 to Section 9(1) of the Income Tax Act, 1961 (hereinafter for short the ‘Act’). “44BB. Special provision for computing profits and gains in connection with the business of exploration, etc., of mineral oils.- (1) Notwithstanding anything to the contrary contained in sections 28 to 41 and sections 43 and 43A, in the case of an assessee, being a non- resident, engaged in the business of providing services or facilities in connection with, or supplying plant and machinery on hire used, or to be used, in the prospecting for, or extraction or production of, mineral oils, a sum equal to ten per cent of the aggregate of the amounts specified in sub-section (2) shall be deemed to be the profits and gains of such business chargeable to tax under the head \"Profits and gains of business or profession\" : Provided that this sub-section shall not apply in a case where the provisions of section 42 or section 44D or [section 44DA or] section 115A or section 293A apply for the purposes of computing profits or gains or any other income referred to in those sections. (2) The amounts referred to in sub-section (1) shall be the following, namely:— (a) the amount paid or payable (whether in or out of India) to the assessee or to any person on his behalf on 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 in India; and (b) the amount received or deemed to be received in India by or on behalf of the assessee on 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 outside India. [(3) Notwithstanding anything contained in sub-section (1), an assessee may claim lower profits and gains than the profits and gains specified in that sub-section, if he keeps and maintains such books of account and other documents as required under sub-section (2) of section 44AA and gets his accounts audited and furnishes a report of such audit as required under section 44AB, and thereupon the Assessing Officer shall proceed to make an assessment of the total income or loss of the assessee under sub- section (3) of section 143 and determine the sum payable by, or refundable to, the assessee.] Explanation.—For the purposes of this section,— (i) \"plant\" includes ships, aircraft, vehicles, drilling units, scientific apparatus and equipment used for the purposes of the said business; (ii) \"mineral oil\" includes petroleum and natural gas.]” “44D. Special provision for computing income by way of royalties, etc., in the case of foreign companies.- Notwithstanding anything to the contrary contained in sections 28 to 44C, in the case of an assessee, being a foreign company,— ITA No.3231/Del/2023 7 | P a g e (a) the deductions admissible under the said sections in computing the income by way of royalty or fees for technical services received [from Government or an Indian concern in pursuance of an agreement made by the foreign company with Government or with the Indian concern] before the 1st day of April, 1976, shall not exceed in the aggregate twenty per cent of the gross amount of such royalty or fees as reduced by so much of the gross amount of such royalty as consists of lump sum consideration for the transfer outside India of, or the imparting of information outside India in respect of, any data, documentation, drawing or specification relating to any patent, invention, model, design, secret formula or process or trade mark or similar property; (b) no deduction in respect of any expenditure or allowance shall be allowed under any of the said sections in computing the income by way of royalty or fees for technical services received [from Government or an Indian concern in pursuance of an agreement made by the foreign company with Government or with the Indian concern] after the 31st day of March, 1976 [but before the 1st day of April, 2003]; (c) [***] (d) [***] Explanation.—For the purposes of this section,— (a) \"fees for technical services\" shall have the same meaning as in [Explanation 2] to clause (vii) of sub-section (1) of section 9; (b) \"foreign company\" shall have the same meaning as in section 80B; \"royalty\" shall have the same meaning as in Explanation 2 to clause (vi) of sub-section (1) of section 9; (d) royalty received [from Government or an Indian concern in pursuance of an agreement made by a foreign company with Government or with the Indian concern] after the 31st day of March, 1976, shall be deemed to have been received in pursuance of an agreement made before the 1st day of April, 1976, if such agreement is deemed, for the purposes of the proviso to clause (vi) of sub-section (1) of section 9, to have been made before the 1st day of April, 1976.]” “9. (1) (vii) income by way of fees for technical services payable by— (a) the Government ; or (b) a person who is a resident, except where the fees are payable in respect of services utilised in a business or profession carried on by such person outside India or for the purposes of making or earning any income from any source outside India; or (c) a person who is a non-resident, where the fees are payable in respect of services utilised in a business or profession carried on by such person in India or for the purposes of making or earning any income from any source in India : [Provided that nothing contained in this clause shall apply in relation to any income by way of fees for technical services payable in pursuance of an agreement made before the 1st day of April, 1976, and approved by the Central Government.] [Explanation 1.—For the purposes of the foregoing proviso, an agreement made on or after the 1st day of April, 1976, shall be deemed to have been made before that ITA No.3231/Del/2023 8 | P a g e date if the agreement is made in accordance with proposals approved by the Central Government before that date.] [Explanation 2.—For the purposes of this clause, \"fees for technical services\" means any consideration (including any lump sum consideration) for the rendering of any managerial, technical or consultancy services (including the provision of services of technical or other personnel) but does not include consideration for any construction, assembly, mining or like project undertaken by the recipient or consideration which would be income of the recipient chargeable under the head \"Salaries\".] (2) Notwithstanding anything contained in sub-section (1), any pension payable outside India to a person residing permanently outside India shall not be deemed to accrue or arise in India, if the pension is payable to a person referred to in article 314 of the Constitution or to a person who, having been appointed before the 15th day of August, 1947, to be a Judge of the Federal Court or of a High Court within the meaning of the Government of India Act, 1935, continues to serve on or after the commencement of the Constitution as a Judge in India. [Explanation.—For the removal of doubts, it is hereby declared that for the purposes of this section, income of a non-resident shall be deemed to accrue or arise in India under clause (v) or clause (vi) or clause (vii) of sub-section (1) and shall be included in the total income of the non- resident, whether or not,— (i) the non-resident has a residence or place of business or business connection in India; or (ii) the non-resident has rendered services in India.]” 8. A careful reading of the aforesaid provisions of the Act goes to show that under Section 44BB(1) in case of a non-resident providing services or facilities in connection with or supplying plant and machinery used or to be used in prospecting, extraction or production of mineral oils the profit and gains from such business chargeable to tax is to be calculated at a sum equal to 10% of the aggregate of the amounts paid or payable to such non- resident assessee as mentioned in Sub-section (2). On the other hand, Section 44D contemplates that if the income of a foreign company with which the government or an Indian concern had an agreement executed before 1.4.1976 or on any date thereafter the computation of income would be made as contemplated under the aforesaid Section 44D. Explanation (a) to Section 44D however specifies that “fees for technical services” as mentioned in Section 44D would have the same meaning as in Explanation 2 to Clause (vii) of Section 9(1). The said explanation as quoted above defines “fees for technical services” to mean consideration for rendering of any managerial, technical or consultancy services. However, the later part of the explanation excludes from consideration for the purposes of the expression i.e. “fees for technical services” any payment received for construction, assembly, mining or like project undertaken by the recipient or ITA No.3231/Del/2023 9 | P a g e consideration which would be chargeable under the head “salaries”. Fees for technical services, therefore, by virtue of the aforesaid explanation will not include payments made in connection with a mining project. 9. Before the High Court, a Circular No. 1862 dated 22.10.1990 having a bearing on the subject was placed for consideration by the appellant- assessee. The aforesaid instruction may be conveniently reproduced herein below. “Subject: Definition of “fees for technical services” in Explanation to Section 9(1) (vii) of the Income Tax Act, 1961 whether prospecting for or extraction of production of mineral oil are “mining” operations- clarification regarding. The expression “fees for technical services” has been defined in Explanation 2 to Section 9(1) (vii) of the Income Tax Act, 1961 as under: “Explanation 2.—For the purposes of this clause, \"fees for technical services\" means any consideration (including any lump sum consideration) for the rendering of any managerial, technical or consultancy services (including the provision of services of technical or other personnel) but does not include consideration for any construction, assembly, mining or like project undertaken by the recipient or consideration which would be income of the recipient chargeable under the head \"Salaries\". 2. The question whether prospecting for, or extraction or production of, mineral oil can be termed as ‘mining operations, was referred to the Attorney General of India for his opinion. The Attorney General has opined that such operations are mining operations and the expressions ‘mining project’ or ‘like projects’ occurring in Explanation 2 to Section 9(1) (ii) of the Income Tax Act would cover rendering of services like imparting of training and carrying out drilling operations for exploration or exploitation of oil and natural gas. 3. In view of the above opinion, the consideration for such services will not be treated as fees for technical services for the purpose of Explanation 2 to Section 9(1) (vii) of the Income-tax Act, 1961. Payments for such services to a foreign company, therefore, will be income chargeable to tax under the provisions of section 44BB of the Income-tax Act, 1961 and not under the special provision for the taxation of fees for technical services contained in section 115A read with section 44D of the Income-tax Act, 1961. 4. A copy of the statement of the case dated 16.3.1990 (without annexures) and a copy of the Attorney General’s opinion dated 13.5.90 are enclosed. 5. These instructions may brought to the notice of all the officers in your region. [F.No.500/6/89-FTD dt.22.10.90 from CBDT]” 10. Before us the opinion of the learned Attorney General has been placed by the learned counsel for the appellants at great length to ITA No.3231/Del/2023 10 | P a g e contend that the views expressed by the learned Attorney which had been accepted by the CBDT were based on an exhaustive consideration of the provisions of the Mines Act, 1952 and the Mines and Minerals (Regulation and Development) Act, 1957 read with the relevant Entries in the Union and the State List in the 7th Schedule to the Constitution of India. It is urged that the eventual test is one of pith and substance of the agreement, namely, whether the works contemplated or services to be rendered under the agreement is directly and inextricably linked with the prospecting, extraction or production of mineral oil. It is submitted on behalf of the appellants that the agreements in question satisfy the above test for which purpose the appellants have categorized the different contracts under 8 heads which may be conveniently set out at this stage hereinbelow. Carrying out seismic surveys and drilling for oil and gas 2. Services starting/re-starting/enhancing production of oil and gas from wells 3. Services for prospecting for exploration of oil and or gas 4. Planning and supervision of repair of wells Repair, Inspection or Equipment used in the exploration, extraction or production of oil and gas 6. Imparting Training Consultancy in regard to exploration of oil and gas 8. Supply, Installation, etc. of software used for oil and gas exploration” 11. It is also urged on behalf of the appellants that the instruction/Circular dated 22.10.1990 issued by the CBDT was binding on the primary authority on the ratio of the decision of this Court in K.P. Varghese Vs. Income Tax Officer, Ernakulam and Others[1]. It has been further pointed on behalf of the appellants that even under the provisions of Section 3D of the Oil Fields (Regulation and Development) Act 1948 a mining lease means a lease granted for the purposes of searching for, winning, working, getting, making merchandisable, carrying away or disposing of mineral oils or for the purpose connected therewith and such a lease includes an exploring or prospecting lease. Reference has also been made to the Petroleum and Natural Gas Rules, 1959 framed under Section 5 of the aforesaid Act. Under Rule 4 of the said Rules no person can prospect for petroleum except pursuant to a Petroleum Exploration License (PEL) granted under the Rules and no person can mine petroleum except in pursuance of a Petroleum Mining License (PML) granted under the Rules. It is pointed out that under Rule 7 of the Rules of 1959 a petroleum mining license (PML) entitles the licensee to carry out construction and maintenance in and on such land, works, buildings, plants, waterways, roads, pipelines etc. as may be necessary for full enjoyment of the PML. On the said basis it is argued that rendering any service in connection with prospecting and extraction is an integral part of mining and that the expression “mining” in the ITA No.3231/Del/2023 11 | P a g e Explanation 2 to Section 9(1) of the Income Tax Act, in the absence of any definition under the Income Tax Act, has to be understood as per the provisions of the Oil Fields (Regulation and Development) Act, 1948 read with the Petroleum and Natural Gas Rules, 1959. 12. Opposing the contentions advanced on behalf of the appellants, Shri Gurukrishna Kumar, learned senior counsel for the Revenue has urged that the opinion of the Attorney General relied upon and the CBDT Circular has no relevance to the present case inasmuch as the agreements between ONGC and the non-resident companies made it abundantly clear that what is paid to the non-resident company are fees for technical services rendered. Though such services may have some connection with the prospecting, extraction or production of mineral oil, the primary service rendered by the non-resident companies on the basis of the agreements is not for prospecting, extraction or production of mineral oil but various ancillary services like training of personnel etc. which may have a somewhat remote connection with the business of prospecting, exploration or production of mineral oils. Learned counsel for the revenue has even suggested that if it is held that the High Court ought to have examined each agreement or contract to find out its real purpose and intent the revenue would have no objection if the matters are remanded for a complete exercise to be made on the above basis. 13. The Income Tax Act does not define the expressions “mines” or “minerals”. The said expressions are found defined and explained in the Mines Act, 1952 and the Oil Fields (Development and Regulation) Act 1948. While construing the somewhat pari materia expressions appearing in the Mines and Minerals (Development and Regulation) Act 1957 regard must be had to the provisions of Entries 53 and 54 of List I and Entry 22 of List II of the 7th Schedule to the Constitution to understand the exclusion of mineral oils from the definition of minerals in Section 3(a) of the 1957 Act. Regard must also be had to the fact that mineral oils is separately defined in Section 3(b) of the 1957 Act to include natural gas and petroleum in respect of which Parliament has exclusive jurisdiction under Entry 53 of List I of the 7th Schedule and had enacted an earlier legislation i.e. Oil Fields (Regulation and Development) Act, 1948. Reading Section 2(j) and 2(jj) of the Mines Act, 1952 which define mines and minerals and the provisions of the Oil Fields (Regulation and Development) Act, 1948 specifically relating to prospecting and exploration of mineral oils, exhaustively referred to earlier, it is abundantly clear that drilling operations for the purpose of production of petroleum would clearly amount to a mining activity or a mining operation. Viewed thus, it is the proximity of the works contemplated under an agreement, executed with a non- resident assessee or a foreign company, with mining activity or mining operations that would be crucial for the determination of the question whether the payments made under such an agreement to the non-resident assessee or the foreign company is ITA No.3231/Del/2023 12 | P a g e to be assessed under Section 44BB or Section 44D of the Act. The test of pith and substance of the agreement commends to us as reasonable for acceptance. Equally important is the fact that the CBDT had accepted the said test and had in fact issued a circular as far back as 22.10.1990 to the effect that mining operations and the expressions “mining projects” or “like projects” occurring in Explanation 2 to Section 9(1) of the Act would cover rendering of service like imparting of training and carrying out drilling operations for exploration of and extraction of oil and natural gas and hence payments made under such agreement to a non-resident/foreign company would be chargeable to tax under the provisions of Section 44BB and not Section 44D of the Act. We do not see how any other view can be taken if the works or services mentioned under a particular agreement is directly associated or inextricably connected with prospecting, extraction or production of mineral oil. Keeping in mind the above provision, we have looked into each of the contracts involved in the present group of cases and find that the brief description of the works covered under each of the said contracts as culled out by the appellants and placed before the Court is correct. The said details are set out below. ITA No.3231/Del/2023 13 | P a g e ITA No.3231/Del/2023 14 | P a g e ITA No.3231/Del/2023 15 | P a g e The above facts would indicate that the pith and substance of each of the contracts/agreements is inextricably connected with prospecting, extraction or production of mineral oil. The dominant purpose of each of such agreement is for prospecting, extraction or production of mineral oils though there may be certain ancillary works ITA No.3231/Del/2023 16 | P a g e contemplated thereunder. If that be so, we will have no hesitation in holding that the payments made by ONGC and received by the non- resident assessees or foreign companies under the said contracts is more appropriately assessable under the provisions of Section 44BB and not Section 44D of the Act. On the basis of the said conclusion reached by us, we allow the appeals under consideration by setting aside the orders of the High Court passed in each of the cases before it and restoring the view taken by the learned Appellate Commissioner as affirmed by the learned Tribunal. 7. We accordingly conclude in the light of their lordships’ above detail discussion as well as the CBDT Circular No. 1862, dated 22.10.1990 (supra) to conclude that the learned lower authorities have erred in law and on facts in rejecting the assessee’s impugned claim seeking assessment under section 44BB of the Act in very terms. Necessary computation shall follow as per law. 8. All other assessee’s remaining pleadings stand rendered academic/consequential at this stage. 9. This assessee’s appeal is allowed. Order pronounced in the open court on 26th March, 2025 Sd/- Sd/- (S. RIFAUR RAHMAN) (SATBEER SINGH GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 26th March, 2025. RK/- Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi "