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TMI Blog2010 (7) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in holding that the assessee is entitled to relief as per Article 9 of the DTAA. 2. On the facts and in the circumstances of the case and in law, the ld. CIT(A) erred in holding that the inland haulage charges is part of the profit from the operation of ships and is accordingly entitled to relief under article 9." 3. Ground No. 1, regarding, entitlement to relief under Article 9 of the DTAA between India and France. 4. We have heard the learned DR as well as the learned AR of the assessee and considered the relevant record. We note that this issue was decided by the CIT(A) by following the order of the CIT(A) for the assessment year 2001-02. We further note that this Tribunal had adjudicated upon the issue in the appeal for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Further, no arguments were advanced regarding linkage of feeder vessels with mother vessels. Therefore, the said decision would not cover the present case. 13. In the present case, the assessee could not furnish the relevant details before the Assessing Officer. However, it filed additional evidences before the CIT(A) to establish the linkage between the feeder vessel and the mother vessel on sample basis. That shows that the entire evidence was not furnished before the CIT(A) in this regard. In our opinion, the relief cannot be allowed on the basis of sample evidence. If relief is allowed on sample basis then it would give the absurd results as benefit could be obtained even when the cargo is transported by mother vessels belonging to o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the light of the observations made in the said order, therefore, we respectfully following the earlier of this Tribunal set aside this issue to the record of the CIT(A) for adjudication afresh in terms of the above order. 6. Ground No. 1 taken by the revenue stands allowed for statistical purposes. 7. The second ground is regarding, inland haulage charges is part of the profit from the operation of ships or not. 8. We have heard the learned DR as well as the learned AR of the assessee and considered the relevant record. We note that this issue was also decided by the CIT(A) by following the earlier order of the CIT(A) for the assessment year 2001-02. We further note that this Tribunal had adjudicated upon the issue by this T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing under article 5 would not be assessable in the hands of the assessee because the assessee has no permanent establishment in India. We note that this Tribunal while deciding the appeal for the assessment year 2001-02 has considered this alternative plea of the assessee in paragraph 16 as under : "16. Before parting with this order, it may be mentioned that the assessee had alternatively claimed before the CIT(A) that if the exemption is not allowable under Article 9, then such business profits falling under Article 5 would not be assessable in the hands of the assessee inasmuch as the assessee has no permanent establishment in India. It has also been contended before the CIT(A) that the rate of tax would have been 35 per cent instead o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the relevant record. The assessee has raised ground No. 1 before the CIT(A) as under : "1. The joint director of Income-tax (International Taxation) OSD-range-1 (hereinafter referred to as the JDIT) erred in passing the impugned order by determining the income of your appellants at 10 per cent of the gross receipts inclusive of ancillary charges. Your appellant submits that the order issued by the JDIT is without any basis and is in violation of the principles of natural justice. Your appellants pray that the JDIT s order be expunged" 17. We note that the CIT(A) has adjudicated upon the ground No. 1 in paragraph 2.1 as under : "2.1 this ground is general and is covered by subsequent grounds and is therefore not specifically adju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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