M/S Ensco Maritime Ltd v. Additional Director Of Income Tax

IN THE HIGH COURT OF UTTARAKHAND AT NAINITALIncome Tax Appeal No. 50 of 2015WithDelay Condonation Application No. 13495 of 2015 M/s Ensco Maritime Ltd.. ..………. Appellant Versus Additional Director of Income Tax. ....………. Respondent Income Tax Appeal No. 51 of 2015WithDelay Condonation Application No. 13619 of 2015 M/s Ensco Maritime Ltd.. ..………. Appellant Versus Additional Director of Income Tax. ....………. Respondent & Income Tax Appeal No. 52 of 2015WithDelay Condonation Application No. 13498 of 2015 M/s Ensco Maritime Ltd.. ..………. Appellant Versus Additional Director of Income Tax. ....………. Respondent Mr. P.R. Mullick, Advocate for the appellant. Mr. H.M. Bhatia, Advocate for the respondent. JUDGMENT Coram: Hon’ble K.M. Joseph, C.J. Hon’ble Sudhanshu Dhulia, J. Dated: 30thMay, 2016 K.M. JOSEPH, C.J. (Oral) There is delay of 715 days in filing Income Tax Appeal Nos. 50 of 2015 and 52 of 2015 and 323 days in filing Income Tax appeal No. 51 of 2015. According to the appellant, the date of the order impugned is 08.08.2013; the order was received on 16.08.2013; the appeals were originally filed with some delay; that appeals, along with the Delay Condonation Application, were allowed to be withdrawn with liberty to file fresh appeals; and hence, the present appeals are filed with the delay. It is pointed out that the earlier appeals, along with the delay, were pending for a long time. Having heard the learned counsel for the parties, we are of the view that the delay should be condoned. Accordingly, the delay will stand condoned and the Applications for condonation of delay will stand allowed. 2. We also proceeded to hear the learned counsel for the parties in regard to the appeals themselves. 3. The appeals arise from the orders passed by the Tribunal not agreeing with the contention of the appellant that the amounts, which were received by way of reimbursement of actual expenses, were not to be included within the amount, which is to be reckoned for the purpose of taxation under Section 44BB of the Income Tax Act. Primarily, the contention appears to be that the amount, which is received by way of reimbursement, would not qualify as income within the meaning of sub-section (45) of Section 2 of the Income Tax Act and it would also not come within the provisions of the charging section, namely, sub-section (2) of Section 5. According to the assessee, Section 5, actually, constitutes the charging provision; whereas, Section 44BB would only be a computing provision and, therefore, what would not fall within the four walls of the charging section, cannot be brought to tax on the basis that it would come under the computing section. 4. The question has engaged the attention of this Court in an earlier judgment in the case of Commissioner of Income Tax vs. Halliburton Offshore Services Inc., reported in (2008) 300 ITR 265. We also think that Section 44BB is a complete code in itself and the amount received, be it by way of reimbursement, is not, in any way, excluded from the ambit of Section 44BB. Therefore, placing reliance on Section 2(45) or Section 5(2) cannot advance the case of the appellant. 5. In such circumstances, the appeals are meritless and the questions of law are answered against the appellant. Consequently, the appeals will stand dismissed. No order as to costs. (Sudhanshu Dhulia, J.) 30.05.2016 (K.M. Joseph, C. J.) 30.05.2016