bmr edge: uttarakhand high court reiterates inclusion of mobilization / demobilization revenues for...

5
Vol. 11 Issue 7.2 July 15, 2015 About BMR Advisors | BMR Newsletters | BMR Insights | Events | Contact Us | Feedback Uttarakhand High Court reiterates inclusion of revenue arising from mobilization and demobilization of vessels outside India, in relation to seismic survey activities, under section 44BB of the Income-tax Act, 1961 Section 44BB of the Income-tax Act, 1961 (“Act”) provides for taxation of non- residents engaged inter-alia in the business of providing services or facilities in connection with prospecting for, extraction and production of mineral oil, on a deemed profit basis of 10 percent on the gross receipts. One of the debate under section 44BB of the Act is whether revenue arising from mobilization and demobilization of vessel outside Indian territorial waters would be included in the gross receipts for computing the deemed profits under the said provisions. The Uttarakhand High Court (“HC”) [1] , has held that the revenue arising from mobilization and demobilization of vessel outside Indian would be included in the gross receipts while computing the deemed profits for the purposes of section 44BB of the Act. Facts of the case Fugro Geoteam AS, the taxpayer, a foreign company incorporated in Norway, entered into contracts with oil and gas companies in India, viz, Oil and Natural Gas Corporation Limited (“ONGC”) and Reliance Industries Ltd (“RIL”) for acquisition of 3D seismic data. In the return of income for the year under consideration, ie, Assessment Year (“AY”) 2008-09, the taxpayer offered its income from carrying out acquisition of 3D seismic data to tax under the provisions of section 44BB of the Act. The revenue from mobilization and demobilization of vessel outside Indian territorial waters was not offered to tax in India. During the course of assessment proceedings, the Assessing Officer (“AO”) sought to deny the benefit of section 44BB of the Act and held that income Share Connect ‘BMR Advisors hosts seminar on ‘Current Dynamics related to Marketing Intangibles’. Taxand Global Survey 2015 India’s Economic Performance and Business imperatives: Repositioning India - Narendra Modi’s Foreign Policy Forbes Survey on one year of Narendra Modi’s business agenda A Norweigan guide to doing business in India Managing Tax Disputes in India Getting the Deal Through Tax on Inbound Investment 2015 2015: Tier 1 firm in International Tax Review,

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Page 1: BMR Edge: Uttarakhand High Court reiterates inclusion of mobilization / demobilization revenues for taxation on deemed profit basis

Vol 11 Issue 72 July 15 2015

About BMR Advisors | BMR Newsletters | BMR Insights | Events | Contact Us | Feedback

Uttarakhand High Court reiterates inclusion of revenue arising from

mobilization and demobilization of vessels outside India in relation

to seismic survey activities under section 44BB of the Income-tax

Act 1961

Section 44BB of the Income-tax Act 1961 (ldquoActrdquo) provides for taxation of non-

residents engaged inter-alia in the business of providing services or facilities in

connection with prospecting for extraction and production of mineral oil on a

deemed profit basis of 10 percent on the gross receipts One of the debate under

section 44BB of the Act is whether revenue arising from mobilization and

demobilization of vessel outside Indian territorial waters would be included in the

gross receipts for computing the deemed profits under the said provisions

The Uttarakhand High Court (ldquoHCrdquo)[1] has held that the revenue arising from

mobilization and demobilization of vessel outside Indian would be included in the

gross receipts while computing the deemed profits for the purposes of section 44BB

of the Act

Facts of the case

Fugro Geoteam AS the taxpayer a foreign company incorporated in Norway

entered into contracts with oil and gas companies in India viz Oil and Natural

Gas Corporation Limited (ldquoONGCrdquo) and Reliance Industries Ltd (ldquoRILrdquo) for

acquisition of 3D seismic data In the return of income for the year under

consideration ie Assessment Year (ldquoAYrdquo) 2008-09 the taxpayer offered its

income from carrying out acquisition of 3D seismic data to tax under the

provisions of section 44BB of the Act The revenue from mobilization and

demobilization of vessel outside Indian territorial waters was not offered to tax in

India

During the course of assessment proceedings the Assessing Officer (ldquoAOrdquo)

sought to deny the benefit of section 44BB of the Act and held that income

Share

Connect

lsquoBMR Advisors hosts seminar on lsquoCurrent

Dynamics related to Marketing Intangiblesrsquo

Taxand Global Survey 2015

Indiarsquos Economic Performance and

Business imperatives Repositioning India - Narendra Modirsquos Foreign Policy

Forbes Survey on one year of Narendra

Modirsquos business agenda

A Norweigan guide to doing business in India

Managing Tax Disputes in India

Getting the Deal Through ndash Tax on Inbound Investment 2015

2015

Tier 1 firm in International Tax Review

earned by the taxpayer from carrying out acquisition of 3D seismic data is in the

nature of lsquofees for technical servicesrsquo taxable under section 44DA read with

section 9(1)(vii) of the Act by adopting a presumptive profit rate of 25 percent

Further mobilization and demobilization revenue for transportation of vessel

outside Indian territorial waters was also held liable to tax in India Both the

variations proposed in the draft assessment order by the AO were confirmed by

the Dispute Resolution Panel (ldquoDRPrdquo)

On appeal by the taxpayer the Delhi Bench of Income Tax Appellate Tribunal

(ldquoITATrdquo) held as follows

shy In relation to income earned from carrying out acquisition of 3D seismic data -

relying on the decision of the Delhi HC in the case of OHM Limited[2] and

PGS Geophysical AS[3] the ITAT allowed benefit of section 44BB of the Act

to the taxpayer and

shy On taxability of revenue from mobilization and demobilization of vessel

outside Indian territorial waters ndash relying on various decision of the

Uttarakhand HC[4] the ITAT held that the said revenue would be included in

the gross receipts while computing the deemed profits under the provisions of

section 44BB of the Act

Aggrieved by the order of the ITAT in relation to the inclusion of the revenue from

mobilization and demobilization in section 44BB of the Act the taxpayer

preferred appeal before the Uttarakhand HC

Arguments of the taxpayer before the HC

As per section 5(2) of the Act in case of a non-resident taxpayer if the income is

not received in India the same would be taxable only if it accrues arises or is

deemed to accrue arise in India Thus unless there is receipt or accrual of

income by the non-resident taxpayer within the territory of India there cannot be

any levy of tax Since the revenue arising from mobilization and demobilization

of vessel outside Indian territorial waters is neither received in India nor accrues

arises in India is deemed to accrue or arise in India it cannot be brought to tax

in India

Section 5 of the Act is the charging section and section 44BB of the Act is merely

a computation provision Unless an income falls within the purview of section 5

of the Act it cannot be brought to tax under section 44BB of the Act

Ruling of the HC

World Tax 2015 Guide to Worldrsquos

Leading Tax Firms for the eighth

consecutive year

Tier 2 firm in International Tax Review

World Transfer Pricing 2015 Guide for

the second consecutive year

2014

Tier 1 firm in International Tax

Review World Tax 2014 Guide to

Worldrsquos Leading Tax Firms

Tier 2 firm in International Tax

Review World Transfer Pricing 2014

Guide

Most Active Transaction Advisor for

Private Equity MampA by Venture

Intelligence

Mukesh Butani New Delhi

+91 11 3066 3010

mukeshbutanibmrlegalin

Rajeev Dimri New Delhi

+91 124 669 5050 rajeevdimribmradvisorscom

Gokul Chaudhri New Delhi

+91 124 669 5040

gokulchaudhribmradvisorscom

Bobby Parikh Mumbai

+91 22 6135 7010

bobbyparikhbmradvisorscom

Amit Jain Pune

+91 20 668 19010

Shweta Aggarwal

Sahil Gupta

Section 44BB of the Act contains special provisions for taxing the income of 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 Section 44BB(2)

of the Act provides that amounts received by the non-resident (whether in India

or outside India) would be included in the gross receipts while computing the

deemed profits under section 44BB(1) of the Act

Instead of section 44BB of the Act the taxpayer may choose to be governed by

the provisions of section 4 and 5 of the Act read with section 28 to 42 of the Act

which deal with the computation of income under the head lsquoprofits and gains of

business and professionrsquo The same is also manifested in section 44BB(3) of the

Act as per which it is open to the taxpayer to maintain books of accounts and

claim lower profits than 10 percent as provided in section 44BB(1) of the Act

As the taxpayer has not maintained books of accounts as per sub-section (3)

the taxpayer cannot argue that the revenue from mobilization and demobilization

of vessel outside Indian territorial waters is not to be included in gross receipts

under section 44BB(1) of the Act

The provisions of section 5(2) of the Act would not restrict Indian Revenue

Authorities (ldquoIRArdquo) from insisting on taxation of revenue arising from mobilization

and demobilization of vessel outside Indian territorial waters under section 44BB

of the Act in view of the explicit provisions of section 44BB(2) of the Act

BMR Comments

The decision seeks to affirm the applicability of section 44BB of the Act on

income earned from acquisition of 3D seismic data and while doing so the

Delhi Bench of ITAT seems to have deviated from its earlier decision in the

case of CGG Veritas Services SA[5] In the case of CGG Veritas the

benefit of section 44BB was granted to the taxpayer on income from seismic

activities subject to constitution of Permanent Establishment (ldquoPErdquo) for AYs

prior to AY 2011-12 In taxpayerrsquos case the ITAT has allowed the benefits

of section 44BB of the Act by specifically following the principles laid down

by the decision of Delhi HC in case of OHM Limited ie following the

lsquospecific vs general rulersquo without deliberating on the applicability of

amendment made by Finance Act 2010 in section 44DA and proviso to

section 44BB of the Act and constitution of PE This certainly seems to

bring hope for the non-resident oilfield service providers operating in India

Interestingly it appears that till now the IRA have not filed an appeal with

the Uttarakhand HC against the said ITAT decisions regarding taxability of

amitjainbmradvisorscom

income earned from acquisition of 3D seismic data under the provisions of

section 44BB of the Act This is welcome and in the absence of any appeal

by the IRA one may presume that the IRA have finally accepted the

taxability of non-resident oilfield service providers under section 44BB of the

Act Nevertheless it would be useful to monitor whether the IRA files an

appeal with the Uttarakhand HC on this issue

The IRA have filed a Special Leave Petition with the Supreme Court (ldquoSCrdquo)

against the order of Delhi HC in the case of OHM Limited Recently the SC

in the case of ONGC vs CIT[6] has addressed this issue and affirmed

taxation on deemed profit basis under the provisions of section 44BB of the

Act to a wide variety of services including the services of lsquocarrying out

seismic surveys for exploratory drillingrsquo While the decision of SC should

settle a decade long dispute on taxability of non-resident oilfield service

providers it would be interesting to note the strategy of IRA while arguing its

appeal in case of OHM Limited when it comes up for hearing before the SC

In summary the Uttarakhand HC has been consistent that the revenue from

mobilization and demobilization of vessel outside Indian territorial waters will

be included in the gross receipts while computing the deemed profits under

the provisions of section 44BB of the Act and Fugro Geoteam AS decision

affirms this view

[1] Fugro Geoteam AS vs ADIT [2015] 56 taxmanncom 117 (Uttarakhand)

[2] [2012] 352 ITR 406 (Del)

[3] [2015] 55 taxmanncom 394 (Delhi)

[4] CIT vs Halliburton Offshore Services Inc [2008] 300 ITR 265 (Uttarakhand) Sedco Forex

International Inc vs CIT [200]) 214 CTR 192 (Uttarakhand) CIT vs Sundowner Offshore

International Burmuda Ltd [2011] 338 ITR 147 (Uttarakhand) CIT vs Trans Ocean Offshore

Incorporation [2008] 299 ITR 248 (Uttarakhand) CIT vs R and B Falcon Drilling Co [2009] 338

ITR 152 (Uttarakhand)

[5] [2012] 50 SOT 335 (Del)

[6] Civil appeal no 731 of 2007

BMR Business Solutions Pvt Ltd

36B Dr RK Shirodkar Marg Parel Mumbai 400012 India

Tel +91 22 6135 7000 | Fax +91 22 6135 7070

BMR and Community

BMR has a strong commitment to good citizenship and community service We are as dedicated to community work as we are to client

work Wherever appropriate we partner with our clients in fulfilling our social responsibility Through the firmrsquos lsquoGo Green Initiativersquo we

adopt environment friendly practices at our work place The firm actively supports SOS Childrenrsquos Village Indian Red Cross Society and

MillionTrees Gurgaon campaign For more details on our social and environmental responsibility programme click here

Disclaimer

This newsletter has been prepared for clients and Firm personnel only It provides general information and guidance as on date of

preparation and does not express views or expert opinions of BMR Advisors The newsletter is meant for general guidance and no

responsibility for loss arising to any person acting or refraining from acting as a result of any material contained in this newsletter will be

accepted by BMR Advisors It is recommended that professional advice be sought based on the specific facts and circumstances This

newsletter does not substitute the need to refer to the original pronouncements

Copyright 2015 BMR Business Solutions Pvt Ltd All Rights Reserved

In case you do not wish to receive this newsletter click here to unsubscribe

Page 2: BMR Edge: Uttarakhand High Court reiterates inclusion of mobilization / demobilization revenues for taxation on deemed profit basis

earned by the taxpayer from carrying out acquisition of 3D seismic data is in the

nature of lsquofees for technical servicesrsquo taxable under section 44DA read with

section 9(1)(vii) of the Act by adopting a presumptive profit rate of 25 percent

Further mobilization and demobilization revenue for transportation of vessel

outside Indian territorial waters was also held liable to tax in India Both the

variations proposed in the draft assessment order by the AO were confirmed by

the Dispute Resolution Panel (ldquoDRPrdquo)

On appeal by the taxpayer the Delhi Bench of Income Tax Appellate Tribunal

(ldquoITATrdquo) held as follows

shy In relation to income earned from carrying out acquisition of 3D seismic data -

relying on the decision of the Delhi HC in the case of OHM Limited[2] and

PGS Geophysical AS[3] the ITAT allowed benefit of section 44BB of the Act

to the taxpayer and

shy On taxability of revenue from mobilization and demobilization of vessel

outside Indian territorial waters ndash relying on various decision of the

Uttarakhand HC[4] the ITAT held that the said revenue would be included in

the gross receipts while computing the deemed profits under the provisions of

section 44BB of the Act

Aggrieved by the order of the ITAT in relation to the inclusion of the revenue from

mobilization and demobilization in section 44BB of the Act the taxpayer

preferred appeal before the Uttarakhand HC

Arguments of the taxpayer before the HC

As per section 5(2) of the Act in case of a non-resident taxpayer if the income is

not received in India the same would be taxable only if it accrues arises or is

deemed to accrue arise in India Thus unless there is receipt or accrual of

income by the non-resident taxpayer within the territory of India there cannot be

any levy of tax Since the revenue arising from mobilization and demobilization

of vessel outside Indian territorial waters is neither received in India nor accrues

arises in India is deemed to accrue or arise in India it cannot be brought to tax

in India

Section 5 of the Act is the charging section and section 44BB of the Act is merely

a computation provision Unless an income falls within the purview of section 5

of the Act it cannot be brought to tax under section 44BB of the Act

Ruling of the HC

World Tax 2015 Guide to Worldrsquos

Leading Tax Firms for the eighth

consecutive year

Tier 2 firm in International Tax Review

World Transfer Pricing 2015 Guide for

the second consecutive year

2014

Tier 1 firm in International Tax

Review World Tax 2014 Guide to

Worldrsquos Leading Tax Firms

Tier 2 firm in International Tax

Review World Transfer Pricing 2014

Guide

Most Active Transaction Advisor for

Private Equity MampA by Venture

Intelligence

Mukesh Butani New Delhi

+91 11 3066 3010

mukeshbutanibmrlegalin

Rajeev Dimri New Delhi

+91 124 669 5050 rajeevdimribmradvisorscom

Gokul Chaudhri New Delhi

+91 124 669 5040

gokulchaudhribmradvisorscom

Bobby Parikh Mumbai

+91 22 6135 7010

bobbyparikhbmradvisorscom

Amit Jain Pune

+91 20 668 19010

Shweta Aggarwal

Sahil Gupta

Section 44BB of the Act contains special provisions for taxing the income of 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 Section 44BB(2)

of the Act provides that amounts received by the non-resident (whether in India

or outside India) would be included in the gross receipts while computing the

deemed profits under section 44BB(1) of the Act

Instead of section 44BB of the Act the taxpayer may choose to be governed by

the provisions of section 4 and 5 of the Act read with section 28 to 42 of the Act

which deal with the computation of income under the head lsquoprofits and gains of

business and professionrsquo The same is also manifested in section 44BB(3) of the

Act as per which it is open to the taxpayer to maintain books of accounts and

claim lower profits than 10 percent as provided in section 44BB(1) of the Act

As the taxpayer has not maintained books of accounts as per sub-section (3)

the taxpayer cannot argue that the revenue from mobilization and demobilization

of vessel outside Indian territorial waters is not to be included in gross receipts

under section 44BB(1) of the Act

The provisions of section 5(2) of the Act would not restrict Indian Revenue

Authorities (ldquoIRArdquo) from insisting on taxation of revenue arising from mobilization

and demobilization of vessel outside Indian territorial waters under section 44BB

of the Act in view of the explicit provisions of section 44BB(2) of the Act

BMR Comments

The decision seeks to affirm the applicability of section 44BB of the Act on

income earned from acquisition of 3D seismic data and while doing so the

Delhi Bench of ITAT seems to have deviated from its earlier decision in the

case of CGG Veritas Services SA[5] In the case of CGG Veritas the

benefit of section 44BB was granted to the taxpayer on income from seismic

activities subject to constitution of Permanent Establishment (ldquoPErdquo) for AYs

prior to AY 2011-12 In taxpayerrsquos case the ITAT has allowed the benefits

of section 44BB of the Act by specifically following the principles laid down

by the decision of Delhi HC in case of OHM Limited ie following the

lsquospecific vs general rulersquo without deliberating on the applicability of

amendment made by Finance Act 2010 in section 44DA and proviso to

section 44BB of the Act and constitution of PE This certainly seems to

bring hope for the non-resident oilfield service providers operating in India

Interestingly it appears that till now the IRA have not filed an appeal with

the Uttarakhand HC against the said ITAT decisions regarding taxability of

amitjainbmradvisorscom

income earned from acquisition of 3D seismic data under the provisions of

section 44BB of the Act This is welcome and in the absence of any appeal

by the IRA one may presume that the IRA have finally accepted the

taxability of non-resident oilfield service providers under section 44BB of the

Act Nevertheless it would be useful to monitor whether the IRA files an

appeal with the Uttarakhand HC on this issue

The IRA have filed a Special Leave Petition with the Supreme Court (ldquoSCrdquo)

against the order of Delhi HC in the case of OHM Limited Recently the SC

in the case of ONGC vs CIT[6] has addressed this issue and affirmed

taxation on deemed profit basis under the provisions of section 44BB of the

Act to a wide variety of services including the services of lsquocarrying out

seismic surveys for exploratory drillingrsquo While the decision of SC should

settle a decade long dispute on taxability of non-resident oilfield service

providers it would be interesting to note the strategy of IRA while arguing its

appeal in case of OHM Limited when it comes up for hearing before the SC

In summary the Uttarakhand HC has been consistent that the revenue from

mobilization and demobilization of vessel outside Indian territorial waters will

be included in the gross receipts while computing the deemed profits under

the provisions of section 44BB of the Act and Fugro Geoteam AS decision

affirms this view

[1] Fugro Geoteam AS vs ADIT [2015] 56 taxmanncom 117 (Uttarakhand)

[2] [2012] 352 ITR 406 (Del)

[3] [2015] 55 taxmanncom 394 (Delhi)

[4] CIT vs Halliburton Offshore Services Inc [2008] 300 ITR 265 (Uttarakhand) Sedco Forex

International Inc vs CIT [200]) 214 CTR 192 (Uttarakhand) CIT vs Sundowner Offshore

International Burmuda Ltd [2011] 338 ITR 147 (Uttarakhand) CIT vs Trans Ocean Offshore

Incorporation [2008] 299 ITR 248 (Uttarakhand) CIT vs R and B Falcon Drilling Co [2009] 338

ITR 152 (Uttarakhand)

[5] [2012] 50 SOT 335 (Del)

[6] Civil appeal no 731 of 2007

BMR Business Solutions Pvt Ltd

36B Dr RK Shirodkar Marg Parel Mumbai 400012 India

Tel +91 22 6135 7000 | Fax +91 22 6135 7070

BMR and Community

BMR has a strong commitment to good citizenship and community service We are as dedicated to community work as we are to client

work Wherever appropriate we partner with our clients in fulfilling our social responsibility Through the firmrsquos lsquoGo Green Initiativersquo we

adopt environment friendly practices at our work place The firm actively supports SOS Childrenrsquos Village Indian Red Cross Society and

MillionTrees Gurgaon campaign For more details on our social and environmental responsibility programme click here

Disclaimer

This newsletter has been prepared for clients and Firm personnel only It provides general information and guidance as on date of

preparation and does not express views or expert opinions of BMR Advisors The newsletter is meant for general guidance and no

responsibility for loss arising to any person acting or refraining from acting as a result of any material contained in this newsletter will be

accepted by BMR Advisors It is recommended that professional advice be sought based on the specific facts and circumstances This

newsletter does not substitute the need to refer to the original pronouncements

Copyright 2015 BMR Business Solutions Pvt Ltd All Rights Reserved

In case you do not wish to receive this newsletter click here to unsubscribe

Page 3: BMR Edge: Uttarakhand High Court reiterates inclusion of mobilization / demobilization revenues for taxation on deemed profit basis

Section 44BB of the Act contains special provisions for taxing the income of 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 Section 44BB(2)

of the Act provides that amounts received by the non-resident (whether in India

or outside India) would be included in the gross receipts while computing the

deemed profits under section 44BB(1) of the Act

Instead of section 44BB of the Act the taxpayer may choose to be governed by

the provisions of section 4 and 5 of the Act read with section 28 to 42 of the Act

which deal with the computation of income under the head lsquoprofits and gains of

business and professionrsquo The same is also manifested in section 44BB(3) of the

Act as per which it is open to the taxpayer to maintain books of accounts and

claim lower profits than 10 percent as provided in section 44BB(1) of the Act

As the taxpayer has not maintained books of accounts as per sub-section (3)

the taxpayer cannot argue that the revenue from mobilization and demobilization

of vessel outside Indian territorial waters is not to be included in gross receipts

under section 44BB(1) of the Act

The provisions of section 5(2) of the Act would not restrict Indian Revenue

Authorities (ldquoIRArdquo) from insisting on taxation of revenue arising from mobilization

and demobilization of vessel outside Indian territorial waters under section 44BB

of the Act in view of the explicit provisions of section 44BB(2) of the Act

BMR Comments

The decision seeks to affirm the applicability of section 44BB of the Act on

income earned from acquisition of 3D seismic data and while doing so the

Delhi Bench of ITAT seems to have deviated from its earlier decision in the

case of CGG Veritas Services SA[5] In the case of CGG Veritas the

benefit of section 44BB was granted to the taxpayer on income from seismic

activities subject to constitution of Permanent Establishment (ldquoPErdquo) for AYs

prior to AY 2011-12 In taxpayerrsquos case the ITAT has allowed the benefits

of section 44BB of the Act by specifically following the principles laid down

by the decision of Delhi HC in case of OHM Limited ie following the

lsquospecific vs general rulersquo without deliberating on the applicability of

amendment made by Finance Act 2010 in section 44DA and proviso to

section 44BB of the Act and constitution of PE This certainly seems to

bring hope for the non-resident oilfield service providers operating in India

Interestingly it appears that till now the IRA have not filed an appeal with

the Uttarakhand HC against the said ITAT decisions regarding taxability of

amitjainbmradvisorscom

income earned from acquisition of 3D seismic data under the provisions of

section 44BB of the Act This is welcome and in the absence of any appeal

by the IRA one may presume that the IRA have finally accepted the

taxability of non-resident oilfield service providers under section 44BB of the

Act Nevertheless it would be useful to monitor whether the IRA files an

appeal with the Uttarakhand HC on this issue

The IRA have filed a Special Leave Petition with the Supreme Court (ldquoSCrdquo)

against the order of Delhi HC in the case of OHM Limited Recently the SC

in the case of ONGC vs CIT[6] has addressed this issue and affirmed

taxation on deemed profit basis under the provisions of section 44BB of the

Act to a wide variety of services including the services of lsquocarrying out

seismic surveys for exploratory drillingrsquo While the decision of SC should

settle a decade long dispute on taxability of non-resident oilfield service

providers it would be interesting to note the strategy of IRA while arguing its

appeal in case of OHM Limited when it comes up for hearing before the SC

In summary the Uttarakhand HC has been consistent that the revenue from

mobilization and demobilization of vessel outside Indian territorial waters will

be included in the gross receipts while computing the deemed profits under

the provisions of section 44BB of the Act and Fugro Geoteam AS decision

affirms this view

[1] Fugro Geoteam AS vs ADIT [2015] 56 taxmanncom 117 (Uttarakhand)

[2] [2012] 352 ITR 406 (Del)

[3] [2015] 55 taxmanncom 394 (Delhi)

[4] CIT vs Halliburton Offshore Services Inc [2008] 300 ITR 265 (Uttarakhand) Sedco Forex

International Inc vs CIT [200]) 214 CTR 192 (Uttarakhand) CIT vs Sundowner Offshore

International Burmuda Ltd [2011] 338 ITR 147 (Uttarakhand) CIT vs Trans Ocean Offshore

Incorporation [2008] 299 ITR 248 (Uttarakhand) CIT vs R and B Falcon Drilling Co [2009] 338

ITR 152 (Uttarakhand)

[5] [2012] 50 SOT 335 (Del)

[6] Civil appeal no 731 of 2007

BMR Business Solutions Pvt Ltd

36B Dr RK Shirodkar Marg Parel Mumbai 400012 India

Tel +91 22 6135 7000 | Fax +91 22 6135 7070

BMR and Community

BMR has a strong commitment to good citizenship and community service We are as dedicated to community work as we are to client

work Wherever appropriate we partner with our clients in fulfilling our social responsibility Through the firmrsquos lsquoGo Green Initiativersquo we

adopt environment friendly practices at our work place The firm actively supports SOS Childrenrsquos Village Indian Red Cross Society and

MillionTrees Gurgaon campaign For more details on our social and environmental responsibility programme click here

Disclaimer

This newsletter has been prepared for clients and Firm personnel only It provides general information and guidance as on date of

preparation and does not express views or expert opinions of BMR Advisors The newsletter is meant for general guidance and no

responsibility for loss arising to any person acting or refraining from acting as a result of any material contained in this newsletter will be

accepted by BMR Advisors It is recommended that professional advice be sought based on the specific facts and circumstances This

newsletter does not substitute the need to refer to the original pronouncements

Copyright 2015 BMR Business Solutions Pvt Ltd All Rights Reserved

In case you do not wish to receive this newsletter click here to unsubscribe

Page 4: BMR Edge: Uttarakhand High Court reiterates inclusion of mobilization / demobilization revenues for taxation on deemed profit basis

income earned from acquisition of 3D seismic data under the provisions of

section 44BB of the Act This is welcome and in the absence of any appeal

by the IRA one may presume that the IRA have finally accepted the

taxability of non-resident oilfield service providers under section 44BB of the

Act Nevertheless it would be useful to monitor whether the IRA files an

appeal with the Uttarakhand HC on this issue

The IRA have filed a Special Leave Petition with the Supreme Court (ldquoSCrdquo)

against the order of Delhi HC in the case of OHM Limited Recently the SC

in the case of ONGC vs CIT[6] has addressed this issue and affirmed

taxation on deemed profit basis under the provisions of section 44BB of the

Act to a wide variety of services including the services of lsquocarrying out

seismic surveys for exploratory drillingrsquo While the decision of SC should

settle a decade long dispute on taxability of non-resident oilfield service

providers it would be interesting to note the strategy of IRA while arguing its

appeal in case of OHM Limited when it comes up for hearing before the SC

In summary the Uttarakhand HC has been consistent that the revenue from

mobilization and demobilization of vessel outside Indian territorial waters will

be included in the gross receipts while computing the deemed profits under

the provisions of section 44BB of the Act and Fugro Geoteam AS decision

affirms this view

[1] Fugro Geoteam AS vs ADIT [2015] 56 taxmanncom 117 (Uttarakhand)

[2] [2012] 352 ITR 406 (Del)

[3] [2015] 55 taxmanncom 394 (Delhi)

[4] CIT vs Halliburton Offshore Services Inc [2008] 300 ITR 265 (Uttarakhand) Sedco Forex

International Inc vs CIT [200]) 214 CTR 192 (Uttarakhand) CIT vs Sundowner Offshore

International Burmuda Ltd [2011] 338 ITR 147 (Uttarakhand) CIT vs Trans Ocean Offshore

Incorporation [2008] 299 ITR 248 (Uttarakhand) CIT vs R and B Falcon Drilling Co [2009] 338

ITR 152 (Uttarakhand)

[5] [2012] 50 SOT 335 (Del)

[6] Civil appeal no 731 of 2007

BMR Business Solutions Pvt Ltd

36B Dr RK Shirodkar Marg Parel Mumbai 400012 India

Tel +91 22 6135 7000 | Fax +91 22 6135 7070

BMR and Community

BMR has a strong commitment to good citizenship and community service We are as dedicated to community work as we are to client

work Wherever appropriate we partner with our clients in fulfilling our social responsibility Through the firmrsquos lsquoGo Green Initiativersquo we

adopt environment friendly practices at our work place The firm actively supports SOS Childrenrsquos Village Indian Red Cross Society and

MillionTrees Gurgaon campaign For more details on our social and environmental responsibility programme click here

Disclaimer

This newsletter has been prepared for clients and Firm personnel only It provides general information and guidance as on date of

preparation and does not express views or expert opinions of BMR Advisors The newsletter is meant for general guidance and no

responsibility for loss arising to any person acting or refraining from acting as a result of any material contained in this newsletter will be

accepted by BMR Advisors It is recommended that professional advice be sought based on the specific facts and circumstances This

newsletter does not substitute the need to refer to the original pronouncements

Copyright 2015 BMR Business Solutions Pvt Ltd All Rights Reserved

In case you do not wish to receive this newsletter click here to unsubscribe

Page 5: BMR Edge: Uttarakhand High Court reiterates inclusion of mobilization / demobilization revenues for taxation on deemed profit basis

BMR Business Solutions Pvt Ltd

36B Dr RK Shirodkar Marg Parel Mumbai 400012 India

Tel +91 22 6135 7000 | Fax +91 22 6135 7070

BMR and Community

BMR has a strong commitment to good citizenship and community service We are as dedicated to community work as we are to client

work Wherever appropriate we partner with our clients in fulfilling our social responsibility Through the firmrsquos lsquoGo Green Initiativersquo we

adopt environment friendly practices at our work place The firm actively supports SOS Childrenrsquos Village Indian Red Cross Society and

MillionTrees Gurgaon campaign For more details on our social and environmental responsibility programme click here

Disclaimer

This newsletter has been prepared for clients and Firm personnel only It provides general information and guidance as on date of

preparation and does not express views or expert opinions of BMR Advisors The newsletter is meant for general guidance and no

responsibility for loss arising to any person acting or refraining from acting as a result of any material contained in this newsletter will be

accepted by BMR Advisors It is recommended that professional advice be sought based on the specific facts and circumstances This

newsletter does not substitute the need to refer to the original pronouncements

Copyright 2015 BMR Business Solutions Pvt Ltd All Rights Reserved

In case you do not wish to receive this newsletter click here to unsubscribe