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TMI Blog2013 (2) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, C.O. No.42/RJT/2011 - - - Dated:- 14-12-2012 - Dinesh Kumar Agarwal And B. Ramakotaiah, JJ. Appellant Rep by: Shri P K Shukla Respondent Rep by: Shri Arun Sathe ORDER Per: Dinesh Kumar Agarwal, JM: By an order dtd. 24-8-2012 passed by the Hon ble President, ITAT, the above appeal and C.O. have been transferred from ITAT, Rajkot Bench to Mumbai Bench. 2. The appeal preferred by the Revenue is directed against the order dated 28-1-2011 passed by the ld. CIT(A), Gandhidham, Ahmedabad for the assessment year 2009-10 against which the assessee has also filed C.O. Since common issue is involved, the revenue s appeal and assessee s C.O. are disposed of by this common order for the sake of convenience. 3. Briefly stated facts of the case are that the assessee Evergreen Shipping Agency (India) (P) Ltd. (ESA) as an agent of Evergreen Marine Corporation (Taiwan) Ltd. (EMC) filed the return u/s 172 (3) of the Income Tax Act, 1961 (the Act) for FAR SINGAPORE 003E voyages sailed from Mundra Port on 25-4-2008 with Asst. Director of Income Tax, (International Taxation), Gandhidham on 15-5-2008 showing total freight and THC Rs. 4,19,82,717.88 which was accepted b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to verify whether the mistake pointed out by the assessee is bringing into tax something beyond the ambit of the particular return u/s 172(3) assessed u/s 172(4) sought to be rectified. If such is the case, then such amount which should not have formed part of the amount payable for the particular voyage should be reduced. The appeal is decided accordingly. 5. Being aggrieved by the order of the ld. CIT(A) the Revenue and assessee both are in appeal before us. ITA No. 163/RJT/2011 for A.Y. 2009-10 (By Revenue) 6. The grounds taken by the Revenue read as under:- The Ld. CIT(A) erred in law and on facts while granting tax relief of Rs. 6,75,129/-. The Ld. CIT(A) erred in law and on facts by ignoring final return filed u/s 172(3) of the Act as freight THC income declared to Rs. 4,19,82,817/-. The assessee failed to provide details called by this office letter dated 24- 03-2011 in order to determine the freight and THC declared before the Ld. CIT(A). The assessee failed to provide supporting details in time before the AO in respect of income declared as freight THC of Rs. 2,06,66,514/- before the Ld. CIT(A) as against the assessee had filed orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stands suspended and, hence, not enforceable. 9. We have carefully considered the submissions of the rival parties and perused the material available on record. We find that the facts are not in dispute inasmuch as it is also not in dispute that the assessee has filed its return u/s 172(4) of the Act showing total freight and THC at Rs. 4,19,82,717.88 instead of Rs. 2,06,66,514/-. The assessee vide rectification application dtd. 5-3-2010 contended that aggregate total of freight and THC is Rs. 2,06,66,514/- and due to typographical mistake the same has been mentioned as Rs. 4,19,82,717.88. However, the A.O. did not accept the assessee s claim. On appeal, the ld. CIT(A), however, directed the A.O. to verify the mistake pointed out by the assessee and if such is the case, then, such amount which should not have formed part of the amount payable for the particular voyage should be reduced. We further find that it is also not in dispute that in this case the final assessment u/s 143(3) dtd. 21-12-2011 was also completed wherein the A.O. has accepted the income declared by the assessee Rs. 32,23,97,891/- as the assessed income. We further find that the income of Rs. 32,23,97,891/- was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment in advance of the tax" leviable for that assessment year, and the difference between the sum so paid and the amount of tax found payable by him on such assessment shall be paid by the assessee or refunded to him. The "ad hoc" assessment made under section 172(4) of the Act is suspended and a "regular assessment" is made as per the provisions of the Act. In such a case, it is only proper and appropriate to hold that all "the provisions" of the Act in the determination of the tax liability, including the ancillary or incidental or consequential matters pertaining to it, are necessarily attracted. Section 172(7) of the Act provides that payment under this section shall be treated as a payment in advance of the tax leviable for that assessment year. Such payments are treated on par with advance income tax payments. It is implicit from the tenor and phraseology employed in section 172(7) that, in substance, a legal fiction is created by which the payments have been treated as advance tax. In construing the said legal fiction, it will be proper and necessary to assume all those facts on which alone the fiction can operate. So, necessarily, all the provisions in the Act in respect o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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