If the contract falls u/s 44BB, incidental technical services are not assessable as “fees for technical services” u/s 9(1)(vii). Verdict in Alcatel Lucent (Del) on liability of foreign company to pay s. 234B interest cannot be followed in Mumbai

ADIT vs. Valentine Maritime (Gulf) LLC (ITAT Mumbai) http://itatonline.org/archives/?p=7380" title="Permanent Link to ADIT vs. Valentine Maritime (Gulf) LLC (ITAT Mumbai) If the contract falls u/s 44BB, incidental technical services are not assessable as "fees for technical services" u/s 9(1)(vii). Verdict in Alcatel Lucent http://itatonline.org/archives/index.php/dit-vs-alcatel-lucent-usa-inc-delhi-high-court-s-234b-a-non-resident-assessee-which-does-not-admit-income-chargeable-to-tax-must-be-inferred-to-have-induced-the-indian-payer-not-to-deduct-tds-and-so/ (Del) on liability of foreign company to pay s. 234B interest cannot be followed in Mumbai
The Tribunal had to consider two questions of law (i) whether a part of the consideration paid for a project involving installation, assembly or the like in connection with the prospecting for, or extraction or production of, mineral oils can be assessed as "fees for technical services" u/s 9(1)(vii) or the entire consideration has to be assessed only u/s 44BB? and (ii) whether in view of the verdict of the Delhi High Court inAlcatel Lucent http://itatonline.org/archives/index.php/dit-vs-alcatel-lucent-usa-inc-delhi-high-court-s-234b-a-non-resident-assessee-which-does-not-admit-income-chargeable-to-tax-must-be-inferred-to-have-induced-the-indian-payer-not-to-deduct-tds-and-so/ a foreign company can be held liable for advance-tax and consequent payment of interest u/s 234B? HELD by the Tribunal:
(i) The contract was a composite one and its main purpose was to install offshore pipelines, etc. To achieve this main purpose, the assessee had undertaken various activities which were listed down in the various articles of the contract. Those activities were incidental to the main job and were an integral part of the contract to ensure that all the pipe lines were successfully installed, commissioned, tested and complied with the standards set out in the contract. The argument of the department that the activity relating to providing technical services should be assessed as "fees for technical services" u/s 9(1)(vii) is not acceptable. When a contract consists of a number of terms and conditions, each condition does not form a separate contract. The contract has to be read as a whole. The entire consideration is assessable only u/s 44BB and no part of it is assessable as fees for technical services u/s 9(1)(vii) (Chaturbuj Vallabhdas AIR 1954 (SC) 236, Mitsui Engg. & Ship Building 259 ITR 248 (Del), Jindal Drilling and Industries 320 ITR 104 (Del) & G&T Resources (Europe) Ltd 139 TTJ 568 followed);
(ii) The argument of the department based on Alcatel Lucent USA http://itatonline.org/archives/index.php/dit-vs-alcatel-lucent-usa-inc-delhi-high-court-s-234b-a-non-resident-assessee-which-does-not-admit-income-chargeable-to-tax-must-be-inferred-to-have-induced-the-indian-payer-not-to-deduct-tds-and-so/ (Del) that even a foreign company is liable to pay advance tax and consequential interest u/s 234B is not acceptable in view of the contrary decision of the jurisdictional High Court in NGC Network http://itatonline.org/archives/index.php/dit-vs-ngc-network-asia-llc-bombay-high-court/ 313 ITR 187 (Bom).