Forum
Read and express views
× Latest Case Laws on Income Tax by various Income Tax Appellate Tribunals in India

These are the latest case laws decided by various Income Tax Appellate Tribunals (ITAT) of India on Income Tax which have been published recently. The case laws are open for discussion and we invite expert comments from our members on its applicability and effect on relevant issues.

12-06-2019, ONGC as representative, Section 115A, 44BB, Tribunal Delhi

  • amit
  • amit's Avatar Topic Author
  • Offline
  • Administrator
  • Administrator
More
6 days 21 hours ago #9722 by amit
Section - 115A, 44BB, 9(l)(vi), 3(a), 2(j), 44D
Order Date - 12-06-2019
Favouring - Assessee
Court - Tribunal Delhi
Appellant - ONGC as representative assessee of Dewey & LeBoeuf International Company LLC
Respondent - DCIT
Justice - R. K. PANDA AM & SUCHITRA KAMBLE JM
Citation - 619Taxpundit138
Appeal No. - ITA No. 3524/DEL/2016
Asstt. Year - 2012-13

Order

PER : SUCHITRA KAMBLE, JM

These two appeals are filed by the respective assessees against the orders dated 19/04/2016 passed by CIT(A)-2, New Delhi for Assessment Year 2012- 13.

2. The grounds of appeal are as under:-

ITA No. 3524/DEL/2016 (A.Y. 2012-13)

“1. The Ld. Commissioner of Income Tax ((Appeals)-2, Noida, has erred in law and in the facts and circumstances of the case in upholding the order passed by the Assessing Officer wherein it was held that the receipts of Dewey & LeBoeuf International Company LLC, USA, are taxable as “fees for technical services.”

2. The Ld. Commissioner of Income Tax ((Appeals)-2, Noida, has erred in law and in the facts and circumstances of the case in not holding that the receipts of Dewey & LeBeouf International Company LLC, USA, were not taxable in India as per the India-USA Double Taxation Avoidance Agreement.”

ITA No. 3526/DEL/2016 (A.Y. 2012-13)

1. “The Ld. Commissioner of Income Tax (Appeals)-2, Noida, has erred in law and in the facts and circumstances of the case in holding that the receipts of University of New South Wales, Australia, from ONGC were taxable u/s. 44DA of the Income-tax Act, 1961, and in not holding that the same were taxable u/s. 44BB of the Income-tax Act, 1961.

2. Without prejudice to the preceding ground, the Ld. Commissioner of Income Tax (Appeals)-2, Noida, has erred in law and in the facts and circumstances of the case in applying a deemed profit rate of 25% for computing taxable income u/s 44DA of the Income-tax Act, 1961.

3. Without prejudice to the preceding grounds, the Ld. Commissioner of Income Tax (Appeals)-2, Noida, has erred in law and in the facts and circumstances of the case in upholding the Assessing Officer’s action of charging surcharge and education cess on the amount of tax payable computed as per the maximum rate prescribed in India-Australia Double Taxation Avoidance Agreement, both for the purpose of grossing-up receipts and for computing the final tax liability.”

3. The facts of ITA No. 3524/Del/2016 are as under:

3.1 Oil and Natural Gas Corporation Limited (ONGC) had vide letter dated 16.06.2008 engaged Dewey and LeBoeuf International Company LLC, USA (non-resident), for representing ONGC before Russian courts in regard to the litigation between ONGC and Amur Shipbuilding Yard. The non-resident is a tax resident of the United States of America (USA). ONGC filed a return of income as representative assessee of he non-resident on 28.09.2012 claiming that the receipts of the non-resident under the aforesaid letter are not taxable in India. Draft assessment order was passed by Assessing Officer u/s 143(3)/144C (1) of the Act on 21/01/2015 at a total income of Rs. 87,78,960/- against income of NIL shown by the assessee in return of income as representative assessee of the nonresident. The Assessing Officer considered gross receipts of the non taxable as “Fee for technical services” and brought to tax the receipts as per provisions of Section 115A of the Act to be taxed on gross basis. Since, the assessee did not file any objection before the Dispute Resolution Panel, the assessment was finalized u/s 143(3)/144C (3) (B) of the Act.

3.2 The facts of ITA No. 3526/Del/2016 are as under: ONGC had vide Agreement dated 11.01.2005 engaged University of New South Wales, Australia (non-resident) for construction, installation and maintenance of High Resolution CT Scanning Facility at Institute of Reservoir Studies, ONGC, Ahmadabad. The said Agreement was valid for 78 months, 18 months for installation, testing and commissioning of CT Scanning Facility and remaining 60 months for maintenance thereof on annual basis. The CT Scanner is under maintenance contract w.e.f. 11th March 2008. During the relevant previous year, payments were made for annual maintenance of the CT Scanner. The non-resident is a tax resident of Australia. ONGC filed return of income as representative assessee of the non-resident on 31.07.2012 claiming that the receipts of the non-resident against the aforesaid Agreement are not taxable in India. Alternatively, the assessee submitted that the receipts of the non-resident were claimed to be taxable under Section 44BB of the Act. The Assessing Officer issued notices under Sections 142(1) and 143(2) of the Act.

The Assessing Officer asked the assessee to explain as to why the income of the non-resident should not be treated as “fees for technical services”. In response, ONGC’s authorized representatives appeared before the Assessing Officer and filed written submissions furnishing all requisite information and contended that the receipts of the non-resident were not taxable in India and, alternatively, the same could only be taxed u/s 44BB of the Act. The Assessing Officer brought the receipts of the non-resident to tax as “fees for technical services” under Section 115A of the Act and round off the tax thereon @ 15% as per India-Australia Double Taxation Avoidance Agreement. The Assessing Officer further applied surcharge @ 2% and education cess @ 3% both for the purpose of grossing up of the actual receipts and for computing the total tax payable on the grossed-up amount.

4. Being aggrieved by the assessment orders, the respective assessees filed appeals before the CIT(A). The CIT(A) dismissed the appeals of the assessees.

5. The Ld. AR submitted that the Tribunal in both the assessee’s own case for Assessment Year 2011-12 has decided the issues contested herein vide

Click to view and download Full Free Judgement of ONGC as representative assessee of Dewey & LeBoeuf International Company LLC vs. DCIT

Unable to display Google Map.




Please Log in or Create an account to join the conversation.

Time to create page: 0.104 seconds

If You Appreciate What We Do Here On TaxPundit, You Should Consider:

We are thankful for your never ending support.

Latest Analysis - High Courts

BEST CYBERCITY (INDIA) PVT. LTD. vs ITO

BEST CYBERCITY (INDIA) PVT. LTD. vs ITO

BEST CYBERCITY (INDIA) PVT. LTD. vs ITO Read More
PUNEET SHARMA vs UNION OF INDIA & ORS

PUNEET SHARMA vs UNION OF INDIA & ORS

PUNEET SHARMA vs UNION OF INDIA & ORS Read More
CIT vs HONDA CARS INDIA LTD.

CIT vs HONDA CARS INDIA LTD.

CIT vs HONDA CARS INDIA LTD. Read More
PCIT vs. ROYAL AND SUN ALLIANCES IT SOLUTIONS (INDIA) PVT. LTD.

PCIT vs. ROYAL AND SUN ALLIANCES IT SOLUTIONS (INDIA) PVT. LTD.

PCIT vs. ROYAL AND SUN ALLIANCES IT SOLUTIONS (INDIA) PVT. LTD. Read More
  • 1
  • 2
  • 3
  • 4
  • 5
  • 6
  • 7
  • 8
  • 9
  • 10
  • 11
  • 12
  • 13
  • 14
  • 15
  • 16
  • 17
  • 18
  • 19
  • 20
  • 21
  • 22
  • 23
  • 24
  • 25
  • 26
  • 27
  • 28
  • 29
  • 30
  • 31
  • 32
  • 33
  • 34
  • 35
  • 36

Forum Features

Latest Case Laws
Latest Case Laws are instantly updated in the Forum into their respective section
Latest from CBDT
Latest Circulars, Notifications, Orders etc. from CBDT is updated in the Forum
Ask Experts
You can ask questions to the community
Support
Support queries are either replied via mail or in the Forum so that others can be benefited
Press Releases
Latest Press Notes and Press Releases are updated in the Forum
Connect with Members
You can connect with our community members by replying to their queries

Recommended Articles

 

SITE INFORMATION

All content herein is the copyright of Taxpundit. No images, text, or any other content may be, reproduced or redistributed without the express written consent of Taxpundit.

All Rights Reserved. All Content Copyright.

Newsletter

Subscribe to our newsletter and stay updated on the latest developments and special offers!

Company Master Data Since 1900. More than 1.75 Million Records. Register/Login to get FREE access. Read more
Toggle Bar