2011 (7) TMI 584 - AT - Income Tax

Tonnage tax scheme denied - Interest income from house building advances given miscellaneous income - these types of income cannot be considered as income generated from the core activity of operating qualifying ships - reopening of assessment - Held that - With regard to the income categorized as other income , the CIT(A) has taken adverse inference in the absence of any details with regard to the nature of items of income included therein. However, during the course of hearing, assessee pointed out that the explanations given before CIT(A) in respect of other income for the assessment year 2006-07, it is stated that the other income mainly includes Exchange variation accounted in connection with a foreign dredging contract to Bahrain and for other two years it was stated that the Other income mainly includes Commission received from the chartering of dredgers for the SSCP Project . Thus as the assessee has not furnished the details of actual receipts, nature of receipt, from whom it was received, the date, the amount etc., except making a general statement all the receipts categorized under the head Other income in these three years need to be examined by the Assessing Officer - set aside the order of CIT(A) on this issue and restore the same back to AO - in favour of assessee by way of remand. Deduction towards expenditure incurred towards earning receipts if item of receipts is not considered as receipts relating to the core activity of dredging - Held that - All the expenses incurred by the assessee shall be deemed to have been allowed while computing the income of the assessee under the special provisions of the Act, hence there cannot be any further deduction of the same expenditure. If the claim of the assessee is allowed, then it would amount to double deduction of the same expenditure, which is not permitted under the Act - against assessee. Interest awarded under arbitration - selection of year of assessment - Held that - Though the assessee claims that the interest awarded by the arbitrator was disputed by both the parties, no material was placed on record to suggest that both the parties have resorted to any legal process in support of their respective claims. The details of interest income so accounted for in that year are not available on record. However, the very fact that the assessee has received interest income in the subsequent year very much suggests that the right to receive the impugned interest has accrued to the assessee during the year under consideration. Accordingly, the view of CIT(A) upheld that the impugned interest has to be assessed during the year under consideration as per the mercantile system of accounting followed by the assessee.

Issues Involved:

1. Validity of reopening of assessment under section 147 of the Act.
2. Allowability of interest under section 244A of the Act on the self-assessment tax paid by the assessee.
3. Chargeability of interest under section 234D of the Act.
4. Determination of the nature of interest income and miscellaneous income, i.e., whether they form part of income from the business of operating qualifying ships or not.
5. Assessment of interest awarded under arbitration.

Issue-wise Detailed Analysis:

1. Validity of Reopening of Assessment under Section 147 of the Act:

The assessee challenged the reopening of the assessment under section 148 of the Act, arguing it was invalid. The Learned CIT(A) dismissed this ground, noting that the assessee had not challenged the validity during reassessment proceedings and had acquiesced to the reassessment without objection. The CIT(A) stated that the assessee had not made a full and true disclosure of its miscellaneous income, which included non-specified items. The Assessing Officer had not applied his mind to the details of "other" income in the original assessment, thus there was no change of opinion. The reopening was within four years from the end of the relevant assessment year, so restrictions under the first proviso to section 147 did not apply. The Tribunal upheld the CIT(A)'s decision.

2. Allowability of Interest under Section 244A on Self-assessment Tax:

The issue involved whether interest under section 244A should be granted on the entire amount of Rs. 5 crores of self-assessment tax paid by the assessee. The CIT(A) directed the Assessing Officer to grant interest on Rs. 2.66 crores instead of Rs. 5 crores. The Tribunal noted that the assessee had filed a petition under section 154, which was rejected, and the CIT(A) had already decided the issue in favor of the assessee in a previous order dated 26-4-2010. Since the department did not challenge the previous order, the issue had reached finality, making the current ground infructuous. The Tribunal set aside the CIT(A)'s order on this issue.

3. Chargeability of Interest under Section 234D of the Act:

The Assessing Officer levied interest under section 234D on the amount collectible from the assessee after reassessment. The CIT(A) held that interest under section 234D was not chargeable in reassessment proceedings. The Tribunal examined section 234D and the definition of "regular assessment" under section 2(40) and the Explanation to section 234D. It concluded that reassessment under section 147 after an assessment under section 143(3) is not a "regular assessment" for section 234D purposes. The Tribunal upheld the CIT(A)'s decision that interest under section 234D was not chargeable.

4. Determination of Nature of Interest Income and Miscellaneous Income:

The core issue was whether interest income and miscellaneous incomes were part of income from operating qualifying ships. The CIT(A) held that certain incomes (sale of scrap, profit on sale of assets, insurance receipts, recovery of rent from staff, recovery for vehicle use, and gain on foreign exchange fluctuation) were related to the core activity of operating qualifying ships. Other incomes (interest on housing loan, liquidated damages, recovery towards late attendance, sale of tender documents, training fees, and fee for supply of information under RTI Act) were not related. The Tribunal agreed with the CIT(A) on most points but reversed the decision on recovery of rent and vehicle use, holding them as independent sources of income. The Tribunal also directed the Assessing Officer to examine the nature of "other income" receipts in detail.

5. Assessment of Interest Awarded under Arbitration:

The issue involved whether the interest awarded under arbitration should be accounted for in the year of award. The assessee argued that the interest was disputed and should be considered income from dredging activity. The Tribunal noted that the assessee followed mercantile accounting and received the arbitration award during the relevant year. Without evidence of legal proceedings disputing the interest, the Tribunal upheld the CIT(A)'s view that the interest should be assessed in the year of award. The Tribunal remanded the issue to the Assessing Officer to verify the nature of activities in the projects and the interest receipts.

Conclusion:

The appeals of the revenue were partly allowed, and the appeals of the assessee were treated as partly allowed for statistical purposes. The Tribunal provided detailed directions for the Assessing Officer to re-examine certain issues, ensuring compliance with the law and proper assessment of income.

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