Rajesh Balia, J. - (1.) ALL these cases relate to the assessment of Oil and Natural Gas Commission (hereinafter referred to as "ONGC"), as the agent of a non-resident assessee, Compagnie Generate De Geophysique, France (in short "CGG"). It is not in dispute in any of these cases that the non-resident asses-see is engaged in the business of providing services or facilities in connection with prospecting for, or extraction or production of mineral oil as well for supplying plant and machinery on hire used, or to be used.
(2.) D. B. I. T. Appeal No. 68 of 2001 is an appeal against the order of the Income-tax Tribunal dated March 30, 2000. We shall first consider the issue in appeal. The assessee acting under Section 44BB(2) returned its taxable income under the head "Profits and gains of business or profession" on the basis of computation made in terms of Section 44BB of the Income-tax Act, 1961. According to the assessee, it is liable to pay tax on "10 per cent, of the aggregate of the amounts specified in Sub-section (2) of Section 44BB". Accordingly, he has included in the computation of its profits and gains of business or profession of "the non-resident assessee" the sum received by it from its principal for the purpose of making payment of income-tax in connection with the activities carried on by him in India which is related to processing/ exploration/production of mineral oil in India. This claim was originally accepted by the Assessing Officer. However, the Commissioner of Income-tax considered the inclusion of income-tax for aggregate of sums in the amounts referred to in Sub-section (2) of Section 44BB to be erroneous and prejudicial to the interests of the Revenue and directed the Assessing Officer to recompute the income of the assessee by including the entire receipt of the income-tax payable by the company in India as part of the income from profits and gains of business falling under Section 28(iv) of the Income-tax Act, 1961 by excluding it from the computation of income made under Section 44BB(2). On the other hand, the assessee has contended that computation of income under the head "Profits and gains of business or profession" so far as the nonresident assessee is concerned, in the facts and circumstances of the case can only be made under Section 44BB, without reference to any other provision for computation of income under the head "Profits and gains, on account of the non obstante clause". The plea of the assessee found favour with the Tribunal and it has set aside not only the order of the Commissioner under Section 263 of the Act but has also held in favour of the assessee on the merits. It is in the aforesaid circumstances that Income-tax Appeals Nos. 67 of 2001, 68 of 2001 and 71 of 2001 were admitted by this court and the substantial question of law which in the opinion of the court prima facie arose for consideration in that appeals, were framed as under : "1. Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal is justified in law in quashing the order under Section 263 passed by the Commissioner of Income-tax ? 2. Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified in law in upholding the finding of the Commissioner of Income-tax (Appeals) that only 10 per cent, of the income-tax payable by O. N. G. C. on behalf of C. G. G. is includible in the total income of the assessee in total disregard to the fact that the amount of income-tax payable by O. N. G. C. on behalf of non-resident company is not a receipt within the meaning of Section 44BB of the Income-tax Act ?" Learned counsel for the respondent appearing in this case states that if the controversy between the parties is examined in the proper perspective in the facts and circumstances and undisputed facts, the answer is self-evident and obvious that there is no other mode of computation of income of the assessee under the head of profits and gains of business or profession than the one provided under Section 44BB(1) and in view of that the question framed by the court at the time of admitting the appeal cannot be said to be a substantial question of law or at any rate they must be answered in the affirmative, i.e., to say, in favour of the assessee.
(3.) LEARNED counsel for the Revenue has urged that since those part of the provisions which have been excepted by the non obstante clause cannot be invoked to the extent they are contrary to the provisions of Section 44BB and cannot be pressed into service for computation of income. Before considering the provisions of Section 44BB it will be apposite to refer to the relevant part of the scheme of the Act of 1961. Section 4 which is the charging section for levying tax on income of any person under the Act provides that income-tax shall be charged at the rate or rates enacted by the Central Act in accordance with and subject to the provisions of the Act in respect of his total income of the previous year relevant for that assessment year of every person. ;