9911796707
TMI Blog2012 (11) TMI 814X X X X Extracts X X X X X X X X Extracts X X X X ..... passed and also combined with the fact that they approached the AO at Mumbai to issue the 100% DTAA tax relief certificate showing their intent to be assessed under the regular provisions of the Act, that the appellant is in regular shipping business and liable to be assessed under other provisions of the Act including 44B, and not u/s 172(4). Held that:- M/s Balaji Shipping Lines FZCO, UAE has accepted the liability to be dealt with the provisions of section 172(7) of the Act. The jurisdictional AO may, therefore, verify the position and take such action as may be warranted in law in terms of section 172(7) to ensure that the income of the assessee from the 86 voyages does not escape assessment as per normal provisions of the Act. - Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pees Which is including THC : Rs. 10,73,68,701/- Taxable income i.e. 7.5% : Rs. 80,52,652/- Tax payable on taxable income Income tax : Rs. 34,00,635/- Less : double income-tax relief : NIL Tax paid on final return dated : NIL Balance tax payable : Rs. 34,00,635/- 3. On appeal, before the ld. CIT(A), the assessee contended that Principal M/s Balaji Shipping Lines, FZCO, UAE is engaged in regular shipping business and not occasional business. They are filing return of income u/s 139(1) read with section 44B of the Act for the past several years including for the assessment year under consideration. The acknowledgment of copy of return of income for the assessment year 2010-11 was submitted before the AO during section 172 proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come u/s 139(1) even before 172(4) combined order was passed and also combined with the fact that they approached the AO at Mumbai to issue the 100% DTAA tax relief certificate showing their intent to be assessed under the regular provisions of the Act, that the appellant is in regular shipping business and liable to be assessed under other provisions of the Act including 44B, and not u/s 172(4). Thus the order passed u/s 172(4) by the Income Tax Officer is null and void as Assessee's claim that it is not engaged in occasional shipping business backed by as many as 86 voyages performed from the port itselt in one year and …taking the alternate recourse provided in section 172(7) itself. Now, coming to ground 2(a).The appellant has s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not being an charterer requires to be debated, which is not required in this case, in view of the earlier finding.", 4. Aggrieved with the order of the ld. CIT(A), the Revenue is in appeal before this Tribunal by taking following grounds : "1. The ld. CIT(A) has erred in law and on facts in holding that the assessee opted for the option to be assessed u/s 172(4) by filing return of income u/s 139(1) even before the order u/s 172(4) was passed, without appreciating the facts of the case. 2. The ld. CIT(A) has erred in law and on facts in holding that the AO is null and void and that the assessee is assessable under section 172(7) of the Act. 3. The ld. CIT(A) has erred in law and on facts in decision majority of the grounds considerin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the AO. 9. It is therefore, prayed that the order of the CIT(A) may be cancelled and that of the AO may be restored to the above extent. 10. Any other round that may be urged at the time of hearing". 5. At the time of hearing before us, on behalf of the Revenue Shri Avinash Kumar, the ld. DR appeared and contended that Principal has not owned or chartered any of the vessel, therefore, Principal had wrongly claimed DTAA benefit for the slot chartered vessels. He accordingly relying on the reasoning given by the AO in the assessment order contended that the assessee through its local agent has wrongly claimed DTAA benefit, therefore, the AO rightly made the assessment u/s 172(4) of the Act and ld. CIT(A) is not justified in holding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d also under the normal provisions of Act. Under these circumstances, the ld. Counsel for the assessee submitted that the ld. CIT(A) rightly quashed the order passed by the AO u/s 172(4) of the Act. The ld. Counsel of the assessee also placed a copy of the decision of the Rajkot Bench of the Tribunal ITO (International Taxation) v. CMA CGM Agencies (India) (P.) Ltd. wherein on identical facts the Tribunal dismissed the appeal of the assessee with certain observations. 7. Having heard both the sides we have carefully gone through the orders of authorities below. Admittedly, the Rajkot Bench of the Tribunal in the case of I.T.O V/s M/s CMA CGM Agencies (India) Pvt. Ltd. (supra) on identical facts relied on by the ld. counsel of the assessee, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
