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2.Effective Ground of appeal is about applicability of provisions of section 44BBB of the Act to the payments received by the assessee from Nuclear Power Corporation of India Ltd.(NPCIL). During the assessment proceedings, the AO found that the assessee (ATOM) had entered into an agreement with NPCIL on 20/07/1998 for preparation of a DRP for setting up Nuclear Power Station (NPS )at various locations in India, that NPCIL was in the process of setting up a NPS at Kunnamkulam(KKMPP).The Government of India and Russia identified NPCIL and ATOM to execute the construction of the Nuclear Power Plant.He further observed that ATOM was rendering services to NPCIL under three contracts namely: Offshore service contract, Deputation 2369/M/09 M/s.Atomstroyexport of specialist and Offshore training contract, that the assessee had business connection in India, that its income was subject to tax in India within the meaning of section 5(2) r.w.s. 9(1)(i) of the Act,that it was involved in construction of NPS from the beginning, that during the year under appeal it had deputed 58 specialists to India who had worked at the project site, that the specialists were provided exclusive places for work and stayed in the campus of KKMPP, that more than 20 specialists stayed in India for more than 6 months,that it had PE in India within the meaning of Article 5(1)of India Russia DTAA,that it had provided only technical services and supervision at various stages, that it was not involved in the business covered by section 44 BBB of the Act.Finally,he held that it was not eligible to be assessed under the provisions of said section.

3.Aggrieved by the order of the AO the assessee preferred an appeal before the First Appellate Authority (FAA) and made elaborate submissions. After considering the available material,he decided the issue of applicability of the provisions of section 44 BBB in favour of the assessee .

4.Before us, the Departmental Representative (DR) fairly conceded that the issue stands decided against the AO and in favour of the assessee.The Authorised Representative (AR) brought to our notice that in the draft assessment order for the AY.2007-08 the AO had denied the assessee's similar claim, that the DRP in its directions had instructed the AO to accept the claim of the assessee,that the AO himself had accepted the position for the AY.s 2008-09 and 2010-11. He further stated that income earned by the assessee from service contract had to be computed as per the provisions of section 44 BBB .He referred to the order of the Tribunal in assessee's own case, for the AY 2009-10 and 2010-11 (ITA/6581/Mum/ 2012 and ITA/6401/Mum/2013 dt.22.3.2017).He also relied upon the case of NPCIL (ITA/6394/Mum/ 2008 dt.12/2/2016 (appeal by the AO) and ITA.s 733, 734, 735 and 931/Mum/2011 ) We are reproducing para 7 and 8 of the order of the Tribunal for the AY 2009-10(supra) and it reads as under :-

4.1.In the case of NPCIL (supra) the Tribunal has held that provisions of section 44BBB would be applicable for the project executed by the assessee .Respectfully following the above we hold that the assessee cannot be taxed as per the provisions of section 9 of the Act, that it is covered by the section 44 BBB of the Act. Confirming the order of the FAA we decide the effective Ground of appeal against the AO.

As a result appeal filed by the AO stands dismissed.

फलतः िनधा रती अिधकारी ारा दािखल क गई अपील मंजूर क जाती है.