9911796707
TMI Blog2014 (1) TMI 710X X X X Extracts X X X X X X X X Extracts X X X X ..... whereby, order of the Assistant Director of Income Tax (International Taxation), Mangalore, dated 29.12.2009 passed under Section 172(4) of the Income Tax Act (for short 'the Act') was confirmed. The relevant assessment year is 2009-2010. 2. The Assessee claims to be an agent of M/s. Puyvast Chartering BV (for short 'the charterer'). The charterer is a Netherland based shipping company. MV Ocean Candle Vay 1 (for short 'the ship') had been chartered by the charterer in October, 2008. The owner of the ship is one M/s. Islamic Republic of Iran Shipping Lines, Iran (for short 'owner of the ship'). The ship was engaged to carry granite blocks from Mangalore to Antwerp, Belgium and other places. The ship, accordingly, reached Mangalore port on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by learned counsel for the appellant, and the grounds as raised before the Tribunal are similar. The Tribunal in paragraphs 7 and 7.1 has quoted the arguments advanced on behalf of the Assessee, which read thus:- "7. ...It was submitted that the applicability of the treaty can be to the owner of the vessel or the charterer. In this case, the charter M/s. Puyvast Chartering BV, Netherlands is the beneficiary of freight and hence, it was entitled to the benefit of India-Netherlands double taxation agreement, which clearly stipulate income from operation of ships in international traffic shall be taxable only in the State in which the place of effective management of the enterprise is situated. The tax residency cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat this is to be paid as per clause 13. Therefore, it was submitted, the revenue authorities have misinterpreted clause 14 as the clause based on which the owner is rewarded, while it only deals with the timing of the payment entitled by the owner". 6. Apart from the submissions, as were advanced before the Tribunal, learned counsel for the appellant invited our attention to Section 163(2) of the Act, to contend that the Authorities below did not follow the procedure to determine, 'whether the Assessee was acting as an agent of the owner of the ship or of the charterer', and in view thereof, the findings that he was acting as an agent of the owner is wrong. Our attention was also invited to Clauses 13 & 14 of the "charter party". 7. From ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the invoice by the charterer and charging 49 Euros per m.tonns is of no relevance, since substantial portion of the freight is paid to the owner of the ship namely, the Iranian-entity. As stated earlier, the risk and liabilities undertaken by the charter M/s. Puyvast, the Netherlands entity, is limited only to a situation where the tonnage carried by the vessel is less than 19500 tonnes. Therefore, the substantial freight beneficiary is the owner of the ship, the Iranian entity and in view of this, the conclusion of the revenue authorities that relief under DTAA is not allowable is justified and in accordance with law and no interference is called for. It is ordered accordingly" 9. We have perused Section 163 of the Act to appreciate t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cipal. (2) No person shall be treated as the agent of a non-resident unless he has had an opportunity of being heard by the Assessing Officer as to his liability to be treated as such". 10. This Section, in our opinion, is of no avail to the appellant to contend that the appellant was acting as an agent of the charterer and not of the owner. Admittedly, the appellant was acting as an agent. His status as an agent is not in dispute. The question, 'whether the appellant was acting as an agent of the charterer or of the owner of the ship', can be determined only on the basis of the materials placed on record and not by raising the dispute about his status. To decide such question is not within ..... X X X X Extracts X X X X X X X X Extracts X X X X
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