9911796707
TMI Blog2013 (4) TMI 143X X X X Extracts X X X X X X X X Extracts X X X X ..... documents filed by the assessee for the first time before him before giving relief to the assessee relying on the said details and documents Matter remanded back to AO for fresh decision. - IT APPEAL NO. 5361 (MUM.) OF 2003 - - - Dated:- 30-3-2012 - P.M. JAGTAP AND N.V. VASUDEVAN, JJ. Jitendra Yadav for the Appellant. Vishwas V. Mehendale for the Respondent. ORDER P.M. Jagtap, Accountant Member - This appeal is preferred by the Revenue against the order of learned CIT(Appeals)-19, Mumbai dated 10th July, 2009. 2. The main issue involved in this appeal relating to deletion by the learned CIT(Appeals) of the disallowance of ₹ 50,91,541/- made by the AO u/s 40(a)(ia) is raised by the Revenue in ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g tax at source. In this regard, the explanation offered by the assessee before the AO was that payment of freight made by it was recovered as sale proceeds as per the invoices and only the net freight was debited to the profit loss account which was hardly 5% of the freight and it was mostly paid to airlines or shipping companies. Relying on the CBDT Circular No. 723, it was contended that no tax at source was deductible from the payment of such freight charges. This stand of the assessee was not found fully acceptable by the AO. According to him, Circular No. 723 relied upon by the assessee was applicable only in case of shipping companies covered by section 172 of the Income-tax Act and the benefit thereof was not applicable in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Trade Pvt. Ltd. and DHL Express Pvt. Ltd. with sample bills. You will find that all the payment is towards Air Freight to Airlines Companies registered outside India and no tax is required to be deducted on payments to them since the payments to them are covered by the provisions of Double Taxation Avoidance agreements with those countries. 4. The above submissions made by the assessee were found to be acceptable by the AO to the extent the same was in relation to payment of freight to shipping. He, however, found that there was a payment of freight charges made by the assessee on account of air fare and road transport aggregating to ₹ 50,91,206/- to the six parties on which tax was deductible by the assessee at source. He note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the circular in my opinion should equally apply to the payments made to the Non residents Airlines companies. Moreover the Double taxation Avoidance Agreements also covers this aspect by a specific article in most of the treaties which Indian has entered into with various countries. The details of such freight paid by the appellant are as under : Details of Freight Paid A/c. Sr. No. Name of Party Amount Type of Bills Payment Made Country 1 Airship Services (I) Pvt. Ltd. 3,777,462.00 Air Way Bill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f DTAA. Air Way Bill Singapore Airlines Cargo Singapore Exempt under Articles 8 of DTAA. Air Way Bill Airways U.A.E. Exempt under Articles 8 of DTAA 4 DHL Express (I) Pvt. Ltd. 63,096.34 Air Way bill DHL Express Cargo China Exempt under Articles 8 of DTAA 5 O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht booking agents. As per the details furnished by the assessee for the fist time before the learned CIT(Appeals), the said payment, however, was shown to be made in some cases directly to the airlines and all these payments were held to be exempt by the learned CIT(Appeals) relying on Article 8 of the Double Tax Avoidance Treaty as well as in some cases relying on the CBDT Circular. He, however, has not given any reason or basis to show as to how the said payments were exempt either under the relevant tax treaties or under the Board's circular. No opportunity was also given by him to the AO to examine the various details and documents filed by the assessee for the first time before him before giving relief to the assessee relying on th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
