2010 (10) TMI 713 - AT - Income Tax

Section 172 - No objection certificate - Applicability of the DTAA - A perusal of the provisions of section 246A(1)(a) are also found to be substantially in pari materia with the provisions of section 246 in so far as the words used are or to the amount of tax determined - As the assessee has challenged the amount of tax determined under the provisions of section 172(4) - Decided in favour of the assessee Assessee had not placed before the Assessing Officer necessary certificate being the double income-tax relief certificate when filing its return under section 172(2) - A perusal of the provisions of section 172 shows that it is applicable to the profits of non-residents from occasional shipping business - it is also noticed that the necessary double income-tax relief certificate has been issued on February 14 2007 and March 22 2007 and the assessment order under section 172(4) has been passed only on May 8 2007 - In the result both the Revenue s appeal and the assessee s cross-objection are dismissed

Summary

Issues Involved:
- Appeal by Revenue against order of Commissioner of Income-tax (Appeals)
- Cross-objection filed by Assessee
- Admissibility of appeal under section 172(4) of Income-tax Act
- Requirement of double income-tax relief certificate under section 172(2)
- Applicability of sections 44B and 172 in assessment
- Disposal of consolidated appeal by Revenue

Analysis:

Appeal by Revenue against order of Commissioner of Income-tax (Appeals):
The Revenue filed an appeal against the order of the Commissioner of Income-tax (Appeals) for the assessment year 2007-08. The grounds raised by the Revenue included contentions regarding the applicability of law and facts, admissibility of appeal under section 172(4), and compliance with provisions related to shipping business. The Revenue challenged the Commissioner's decision to admit the appeal filed by the assessee under section 172(4) of the Income-tax Act.

Admissibility of appeal under section 172(4) of Income-tax Act:
The Departmental representative argued that the appeal filed by the assessee under section 172(4) was not admissible as per section 246A of the Income-tax Act. However, the authorized representative of the assessee cited a Supreme Court decision supporting the right to appeal in such cases. The Tribunal, considering the Supreme Court's decision and the similarity in wording between sections 246 and 246A, upheld the Commissioner's decision to admit and adjudicate the assessee's appeal.

Requirement of double income-tax relief certificate under section 172(2):
The Departmental representative contended that the assessee failed to provide the necessary double income-tax relief certificate when filing returns under section 172(2). However, the authorized representative presented evidence of the certificate issuance and submission to the assessing authority in Mumbai. The Tribunal noted that the certificate was issued before the assessment order under section 172(4) and held that the demand raised by the Revenue was not justified.

Applicability of sections 44B and 172 in assessment:
The Tribunal observed that the provisions of section 44B, applicable to shipping business profits, were invoked by the Assessing Officer in Mumbai. As a higher amount was assessed under section 44B, the applicability of section 172 ceased to exist. The Tribunal also noted the issuance of the double income-tax relief certificate before the assessment order, further supporting the cancellation of the demand raised under section 172(4).

Disposal of consolidated appeal by Revenue:
The Tribunal pointed out a technical error in the filing of six separate appeals by the Revenue instead of a consolidated one. Despite this procedural lapse, the Tribunal proceeded to address the merits of the issues raised. Considering the identical facts and previous acceptance of decisions on similar voyages, the Tribunal upheld the Commissioner's order and dismissed the Revenue's appeal.

Conclusion:
The Tribunal dismissed the Revenue's appeal and the cross-objection filed by the assessee, based on the findings related to the admissibility of the appeal under section 172(4), compliance with certificate requirements, and the applicability of sections 44B and 172 in the assessment. The Tribunal's decision was based on legal interpretations, precedents, and factual considerations presented during the proceedings.