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TMI Blog2012 (9) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... ns have been brushed aside without giving any proper reasons and sufficient consideration. This casual attitude of the DRP leads to harassment of the assessee and drag them to protracted litigation In view of aforesaid, order is set aside and matter remitted to the file of the DRP to consider the objections of the assessee and pass a proper and speaking order giving direction u/s 144C – Decided in favor of assessee for statistical purposes. - IT Appeal No. 7307 (Mum.) of 2010 - - - Dated:- 27-6-2012 - P.M. Jagtap, Amit Shukla, JJ. Jitendra Jain for the Appellant. Jitendra Yadav for the Respondent. ORDER Amit Shukla, Judicial Member The assessee is aggrieved by the order dated 6-9-2010, passed by the Additional Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vt. Ltd. constitute the Appellants PE in India, the taxable income should be restricted to 7.5% of Rs. 1,68,39,220/-." 2. The relevant facts apropos this case are that the assessee, which is a limited company, is incorporated in UAE and is engaged in the business of shipping operations of running feeder line between India and Dubai. The assessee operates the feeder services using their own vessels as well as vessels taken on charter. During the year, the assessee had received "slot hire charges" of US $ 366070, which in terms of INR comes to Rs. 1,68,39,220/-. The assessee's case before the Assessing Officer was that its "slot hire charges" is from shipping operations and is covered by Article 8 of the DTAA between India and UAE, and, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Various decision were relied upon in support of the contention that "slot hire charges" received from charter of ships which in the nature of income derived from the operation of ships only. ( iv ) The assessee's shipping agent, namely, M/s Samsara Shipping Pvt. Ltd, is a completely independent agent within the meaning of Article 5, para 5 of the DTAA, hence, Article 7 read with Article 5 is not applicable in case of assessee. 4. The DRP vide its direction dated 16-8-2010, has rejected the assessees' contention in a very summarily manner, firstly, on the ground that "slot hire charges" has not been considered by the AAR in its ruling, secondly, business income of the assessee earned through PE is a legal issue, therefore, it did no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il submissions were made which has neither been properly dealt with nor has been considered in the right perspective. He also submitted that the issue of Article 7 has been brushed aside simply on the ground that it is a legal issue and no interference is called for and this issue should be decided on merits by taking into consideration of the findings of the AO as well as DRP. 6. On the other hand, learned Senior DR submitted that the matter has been discussed by the Assessing Officer in his order, wherein he has dealt with all the submissions and various other aspects of the assessee as contended by the learned AR. He thus, strongly relied upon the findings of the Assessing Officer. 7. We have carefully considered the rival submis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R ruling have not been discussed by the DRP, which it was required to do so, when the assessee is heavily relying upon the decision of AAR which is binding upon the Assessing Officer. It is further noticed that the second aspect that the income would not be taxable in India due to absence of PE and also the agent in India is not a dependent agent as per para 5 of Article 5, has not been discussed at all. 8. From the perusal of the entire DRP's order, it is evident that the assessee's submissions and objections have been brushed aside without giving any proper reasons and sufficient consideration. The relevant and important points raised on behalf of the assessee and as noted by us, do not find any mention or proper discussion in DRP's d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a well reasoned and well discussed order also facilitates appreciation when the same is called in question before the superior forum. Keeping in view the decision of the Hon'ble Delhi High Court in the case of Vodafone Essar Ltd. ( supra ) as well as that of the coordinate bench of this Tribunal in the case of Gap International Sourcing India (P) Ltd. ( supra ) and having regard to the fact that the DRP has passed the order giving directions to the AO u/s 144C without giving proper consideration to elaborate submissions made on behalf of the assessee, on this main preliminary issue, we set aside the order and remit the matter to the file of the DRP with a direction to consider the objections of the assessee on this issue as well as the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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