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TMI Blog2019 (11) TMI 1765X X X X Extracts X X X X X X X X Extracts X X X X ..... remit this case to the file of assessing officer for framing fresh assessment order u/s. 172(4) after following the path envisaged in section 144C of the act. Therefore, at this stage, we are not dealing with other issues in appeal and the assessee is at liberty to raise all these issues in the set aside proceedings. With these observations, the matter has been restored to the file of assessing officer. Therefore, the appeal of the assessee is allowed for statistical purposes. - ITA NOS. 429 & 430/RJT/2018 - - - Dated:- 21-11-2019 - SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER For the Revenue : Shri Jitendra Kumar, CIT-D.R. For the Assessee : Shri Porus Kaka, A.R. ORDER PER : AMARJIT SINGH, ACCOUNTANT MEMBER:- These two appeals filed by assessee for A.Y. 2017-18, arise from order of the CIT(A)-13, Ahmedabad dated 29-08-2018, in proceedings under section 172(4) of the Income Tax Act, 1961; in short the Act . 2. The facts and issues in both the appeals are similar, so, we take ITA No. 430/Rjt/2018 as lead case and its findings will also be applicable to ITA No. 429/Rjt/2019 for the sake of convenience. 3. The fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Maersk Katalin 1 4,03,64,849 10 MT Maersk Pearl 1 11,11,17,500 11 MT Maersk Messina 1 5,60,60,747 12 MT Maersk Pelican 1 12,81,37,500 Total 106,37,40,738 On the perusal of the above information, the assessing officer was of the view that Article 24 of the DTAT between India and Singapore is applicable since shipping income has been directly remitted to Singapore. The relevant part of the article 24 of the DTAA agreement between India and Singapore is reproduced as under:- 1. Where this Agreement provides (with or without oilier conditions) thai income from sources in a Contracting State shall be exempt from tax, or taxed tit a reduced rate in that Contracting State and under the laws in force in the other Contracting State they said income is subject to tax by reference to the amount thereof which is remitted to or received in that other C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of exemption from tax in a contracting state shall be available only subject to the funds being remitted in the other contract states as well subject to tax. The assessing officer has also referred provision of section 10 of the Income Tax Act Singapore as charging section and the relevant part of the section is reproduced as under:- Charge of income tax: 10. (1) Income tax shall, subject to the provisions of this Act, be payable at the rate or rates specified hereinafter for each year of assessment upon the income of any person accruing in or derived from Singapore or received in Singapore from outside Singapore in respect of- (a) gains or profits from any trade, business, profession or vocation, for whatever period of time such trade, business, profession or vocation may have been carried on or exercised; From the provision of above cited section 10 of Income Tax Act Singapore, , the assessing officer has observed that it is clear that income chargeable to income tax in Singapore should either be accrued or derived in Singapore or it should be received from outside Singapore. Therefore, the assessing officer has issued show cause notice dated 18th December, 2017 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ITAT, Mumbai in (he case of APL Co Pte Ltd v. CIT [(2017) 79 taxmann.com 240] wherein on similar facts the Hon'ble Tribunal has held as under:. 12,,,. An enterprise which is tux-resident of Singapore is liable for taxation on its stripping income only in Singapore and not in India. When India does not have tiny taxation right on n shipping income of non-resident entity, which is exclusive domain of the resident state, there is no question of any kind of exemption or reduce rate of taxation in the source state, It only envisages territorial and jurisdictional rights for taxing the income find India has no jurisdiction for any taxing right which are governed by Article 8. There is no stipulation about exemption under Article 8 of the shipping income which has been specifically provided in some of the Articles like Article 20, 21 22. Hence, it cannot be reckoned that shipping income earned from India is to be treated as exempt from tax or taxed at reduced rate, which is a condition precedent for applicability of Article 24, albeit India at the threshold does not have the jurisdiction to tax the shipping income of the non-resident entity. Thus, the condition of Article 24 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered foreign-sourced If the services are provided through a fixed place of operation in a foreign country. The shipping business of M/s Maersk Jankers Singapore Pte. Ltd, is not carried out through any fixed place of operation in India and cannot be construed as Singapore sourced income. (xi) The IRAS vide letter dated 6ih August 2013 (Exhibit- D) has confirmed that Article 24 of the DTAA between India and Singapore does not apply in the case of income earned fay Maersk Tankers Singapore Pte, Ltd. As per this certificate ihti IRAS has confirmed that the freight income derived by the beneficiary i.e, M/s Maersk Tankers Singapore Pte. Ltd., Singapore is income accruing in or derived from a business carried out in Singapore. (xii) The IRAS vide letter dated 8th November 2017 (exhibit E) has certified that freight income earned by M/s Maersk Tankers Singapore Pte. Ltd., Singapore is Singapore sourced income, physical flow of funds is not relevant and hence Article 24 of the DTAA between India and Singapore shall not be applicable. The assessee has stated that shipping income is liable to tax in Singapore, subject to conditions prescribed under sections 13A to 13F of the Singap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of M.T, Maersk Mikage vs. DIT (international Taxation) (72 taxmann.com 359} before the Hon'ble Gujarat High Court. (b) Case of Alabra Shipping Pte. Ltd (62 taxmarm.com 185} before the Hon'ble ITAT, Rajkot. (c) Case of APL Co. Pte. Ltd, [(2017) 78 taxmann.com 240] before the Hon'ble ITAT, Mumbai. (d) Case of Far Shipping (Singapore) Pte. Ltd. vs. 170 [{2017) 84 taxmann.com 297] before the Hon'ble ITAT, Hyderabad. (e) Case of Citicorp Investment Bank (Singapore) Ltd, vs. DCIT(IT) [(2017) 81 taxmann.com 368] before the Hon'ble ITAT, Mumbai. The assessing officer has further stated that in a recent decision dated 28th Nov, 2017, the Hon ble ITAT, Rajkot has kept the issue open in the case of B.P. Singapore Pte Ltd. Gandhidham vs. ITO (International Taxation), Gandhidham by remitting the matter to the file of the ld. CIT(A) for fresh adjudication de-novo. The assessing officer has not accepted the submission of the assessee on the following reasons:- (a) The first condition is that if the agreement provides that the freight income from sources in a Contracting State (India) shall be exempt from tax or taxed at reduced rate in the Contracting state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (5) The second term used in condition referred at (v)(b) above is by reference to the amount remitted/received and not by reference to full amount . On plain reading it is clear that the amount should be subjected to tax by reference to amount remitted/received and not by reference to full amount. First, we take the case where the amount is subject to tax with reference to the full amount. In Singapore shipping income is exempt from tax under the provisions of sections 13A and 13F (refer para 7(xiv) above). (6) Hence, it Is clear that the amount cannot be claimed to have been subjected to tax with reference to the full amount. In the second case where the amount is subject to tax by reference to amount remitted/received in Singapore, it is dear that the amount has not been remitted in this case from India to Singapore. (7) Therefore, it is clear that for the second condition the term subject to tax is essential in this case the shipping profits received from voyages undertaken by the vessel M.T. MaerskTianjin have not been subject to tax in Singapore, (v) Provisions of Article 24 override the provision of Article 8 of the DTAA between India and Singapore as they limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e extent that the taxability of such income has not been explained in detail with respect to the provisions of Article 24 of the DTAA between India and Singapore, In another case of ST Shipping vide correspondence dated 09/01/2013 the Singapore Tax Authority i.e. IRAS has opined that in view of the facts in that case, Article 24.1 of the DTAA would not be applicable and consequently Article 8 would apply. Hence, it is clear that the Setter issued by the IRAS is to ba treated as an opinion rather than a mandate, which is binding to the particular beneficiary for that tax year, (xii) The latest confirmation letter of the IRAS dated 8!h November, 2017 is misleading to the extent that it does not clarify that the shipping income is not subjected to tax in Singapore because of the exemption granted to shipping companies under sections 13A or 13F of the Singapore Income Tax Act. If the shipping income is liable to tax on accrual basis in Singapore, then the same cannot be said to have accrued or arisen from the source state, which is India. This is a serious contradiction to the provision of sub-section 1(i) of section 9 of the income Tax Act of India. (xiii) This point has been co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one of the relevant considerations in deciding the contextual meaning. The purpose of including Article 24, Limitation of Benefit clause, should first be considered to understand the context in right perspective. With the introduction of DTAAs, many corporations started exploiting treaty laws to evade tax liability completely. Therefore, in order to prevent abuse of treaty benefits and treaty shopping, countries revised their tax treaties to includean anti-abuse provision called the limitation of benefit clause, referred to as LOB clause. This provision was brought to limits the benefits of favorable tax treaties. The context in which the term 'exempt from tax is used in Article 24 of the treaty is that there should be limitation of relief to be derived from tax treaty. Therefore, if an income is to be granted an exclusion from taxable income in one of the contracting state, such an exclusion must depend on its status of taxability in the other contracting stale. The context in which expression 'exempt from tax' is set out in article 24, essentially implies that the treaty benefit of non-taxation of an income, or its being taxed at a lower rate, in a contracting s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xation is a clear objective of the Indo Singapore tax treaty, such an exempt income will also be liable to get treaty protection in the source state.. even though this situation has arisen due to their evasive and not so transparent conduct. Article 24 of tax treaty makes it clear that what has not actually suffered tax in one contracting state cannot be allowed treaty benefit in the: other contracting state. Article 24 is an anti-abuse provision brought in to curb abuse of tax treaty in such situations only. A tax treaty is to be interpreted in 'good faith' in accordance with the ordinary meaning given to the terms of the treaty in their context in light of its objects and purpose. If particular words and phrases in a treaty are doubtful, their construction should be governed by the general object of the treaty and by the context. The 'purpose' is not the same as the subjective intention of Contracting States. It refers to the goals of the treaty as reflected objectively by the treaty as a whole. An interpretation should be achieving the treaty objectives of (a) avoidance of double taxation and (b) prevention of double non-taxation. The Appellant ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... term used in the treaty is 'received or remitted and the term 'remitted' finds no mention in Singapore Income Tax Act (SITA). Appellant talks about taxation of accrual basis under section 10(1) of the Singapore Income Tax Act, without any comments on actual taxability of the impugned income in Singapore, The appellant has relied upon the letter issued by the Inland Revenue Authority of Singapore dated 8 November 2017 in the assessment order passed under section 172(4) of the IT Act where in it has been confirmed in the said letter that freight, income from the subject vessels shall be taxable in Singapore on an arising or accrual basis regardless of whether it is remitted to or received in Singapore and therefore Article 24 would not be applicable. What this letter or arguments miss out is the vital fact that the said income was never actually taxed in Singapore because of a specific exemption provision, It has not been disputed that, because of the appellant being fiscally domiciled in Singapore, the said income was 'liable to tax' but then 'liable to tax1 is not the same thing as 'subject to tax1. Elaborating upon important difference between the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmed in India is riot actually subjected to tax in Singapore even though it was liable to be taxed there by the virtue of residence of the appellant. The AR of the appellant submitted that a mere exemption of income in Singapore does not take that income out of the ambit of income liable to be taxed in Singapore on accrual basis, and it will be eligible for treaty benefits nevertheless. The contention of the appellant that income taxable on accrual basis in Singapore is not subject to provisions of Article 24 of the treaty is a self-serving argument. Article 24 is an anti abuse provisions in the tax treaty with emphasis on 'subject to tax1 to avoid double non-taxation. As regards Appellant's reliance, upon the judicial precedents in the cases of AzadiBachrioAndolan, Vcnkatesh Karrier and Emirate Shipping Lines, in these cases, expression used is 'liable to tax1. These DTAAs are different from India Singapore DTAA as the expression used in the India Singapore DTAA is 'subject to tax' and the objective is clear and unambiguous, and Article 24 leaves no doubt about the underlying thrust of the prevention of double non taxation. Hon'ble Rajkot Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 MT Maersk Pelican 1 12,81,37,500 Total 106,37,0738 The benefit of DTAA between India and Singapore is governed by mainly Article 8 24, with Article 24 being the limitation of relief clause. In the above 16 voyages, the remittance has not been subjected to tax in Singapore and therefore Article 24 of the DTAA comes directly into play, Article 24 of the DTAA agreement between India and Singapore is reproduced below: LIMITATION OF RELIEF 1. Where this Agreement provides (with or without other conditions) that income from sources in a Contracting State shall be exempt from tax, or taxed at a reduced rate in that Contracting State and under the laws in force in the other Contracting State the said income is subject to tax by reference to the amount thereof which is remitted to or received in that other Contracting State and not by reference to the full amount thereof then the exemption or reduction of tax to be allowed under this Agreement in the first-mentioned Contracting State shall apply to so much of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income being exempt from tax in Singapore has come to the light now Thus, it is noted that in the instant case, letters from IRAS give an impression that the freight income received from voyages performed in India has been subjected to tax in Singapore, but the factual position is that appellant has availed exemption under section 13F of the Singapore's Income Tax Act, and, to that extent, the freight income has not actually been taxed in Singapore, even though as per Article 8 of the DTAA between India and Singapore shipping profits are liable to tax in the state of tax residency. Undoubtedly, by the virtue of the appellant being fiscally domiciled in Singapore, the said income was 'liable to tax.' in the state of tax residency but then 'liable to tax' is not the same thing as 'subject to tax'. The confirmation letter of (he IRAS dated 8th November, 2017, relied, upon by the appellant, is misleading to the. extent that it does not mention that the shipping income is not subjected to tax in Singapore because of the exemption granted to shipping companies under sections 13A or 13F of the Singapore Income Tax Act. If the shipping income is liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not be any residual presumption in favour of a domestic law while ascertaining the meaning of an undefined termin treaty. When connotations of a treaty term were to be adopted as per the domestic law of a contracting state, it could not be done as a thoughtless and mechanical process. While applying Art. 3(2) of the treaty for ascertaining the meaning of an undefined term, one had to ask whether context suggested a different interpretation. The above interpretation by the appellant is against the provisions of Article 24 of the treaty, which was brought in to prevent abuse of treaty benefits. It is the duty of the person to provide with full and fair disclosure of all the material facts and the Appellant cannot leave out material facts germane to decision of the issue and argue that the appellant is subject to tax on its income on accrual basis'. The appellant has not made true and full disclosure of all the material facts that it has availed exemption in Singapore on its shipping income earned in India. It's not just about leaving out a specific detail but not providing the authorities with 'all the information - half truths is lying by to protect self-int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between India, and Singapore in respect of two voyages undertaken by the vessel MT Maersk Tianjin are met under the following terms: (a) The first condition, is that, if the agreement provides that freight income from sources in a Contracting State (India) shall be exempt from tax or taxed at reduced rate in the Contracting state (India) then 'limitation of relief clause is applicable. In this case income tax is exempted in India as per the provisions of Article 8 of the DTAA with Singapore. Hence, first condition is applicable in this case. (b) (1) The second condition is that if under the laws in, force in the other Contracting state(Singapore) the said income is subject to tax by reference to the amount thereof which is remitted to or received (in Singapore) and not by reference to the full amount then the limitation to relief clause is applicable. I am in conformity with the findings of the AG, The double tax treaty avoidance agreement should be interpreted using a purposive rather than a literal approach. The primary purpose of the double tax treaty is to eliminate double tax and prevent the avoidance of tax; the purpose is not therefore to enable the double non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... International Taxation) dated 24th August, 2016 placed at page no. 113 of the Volume 1 of the paper book. The ld. counsel has also referred page no. 163 and 164 of the paper book volume 1 pertaining to the decision of ITAT Mumbai Bench L in the case of Citicrop Investment Bank (Singapore) Ltd. vs. Dy. CIT (International Taxation) dated 24th March, 2017 wherein it is held that income earned by assessee, a Singapore based company on sale of debt instrument was not taxable in India as per Article 13(4) of India Singapore DTAA. The ld. counsel has also referred decision of ITAT vide ITA No. 992/Mum/2015 in the case of Dy. CIT Vs. D.B. International (Asia) Ltd. dated 20.06.2018 placed at page 231 of the paper book, Vol. No. 1. The ld. counsel has also referred decision of LRL Management K/S (as foreign Commercial Manager/Agent of Maersk Tankers Singapore Pvt. Ltd. ) vs. ITO (International Taxation) in ITA No. 756/Rjt/2014 and ITA 276/Rjt/2015 (Rajkot ITAT) page 8 of para 11 of this judgment on the issue that there was no dispute with regard to application to section 144C and the only issue was as to what should be done in cases in which the scheme of section 144C though admittedly app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... des and perused the material on record. Maersk Tankers Singapore PTE Ltd. is a company incorporated in Singapore engaged in the business of ship owning and borrowing, charting and related business. It is a tax resident of Singapore and eligible to claim benefit under the double taxation avoidance agreement between India and Singapore for vessels for which the assessee company has appointed Inchcape Shipping Services Pvt. Ltd. in India to render, port agent services required at ports in India such as filing of vessels voyage return, obtaining no objection certificate etc. for the said vessels. Accordingly, it has submitted application for obtaining NOC with the assessing officer. After perusal of the details and document, the assessing officer has issued NOC to 16 vessels voyages as mentioned above in this order in accordance with the provisions of section 172(3) of the act. The aforesaid agent in India of the assessee has filed vessel voyages return along with relevant document. The assessing officer has initiated proceedings u/s. 172(4) of the act for the 16 vessel voyages. During the course of assessment proceedings, the assessing officer has disallowed the claim of benefit for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 015 and 91/Rjt/2016 dated 9-08-2018 after following the decision in the case of LR2 Management K/S vs. Income Tax Officer (2015) 63 taxmann 42 of Rajkot Tribunal held that draft order u/s. 144C was required to be issued and for enabling the assessing officer for following the path envisaged in section 144C the matter was remitted back to the file of assessing officer. The relevant part of the decision is reproduced as under:- 2. Learned representatives fairly accept that this issue is covered in favour of the assessee, in the case of LR2 Management K/S Vs. Income Tax Officer [(2015) 63 taxmann.com 42 (Rajkot Trib.)], wherein we have observed as follows:- 5. The fundamental question that we have to first consider is whether an order under section 172(4) can be said to be an 'assessment order' because the requirement of serving a draft order on the assessee is only in respect of an 'assessment order'. Section 144C(1) categorically states that the Assessing Officer is required to forward a draft of the proposed order of assessment (hereafter in this section referred to as the draft order) to the eligible assessee and thus give an eligible assessee option of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FZE (supra), the decision of Hon'ble Supreme Court in the case of AS Glittre v. CIT [1997] 225 ITR 739/91 Taxman 286 wherein the following observations were made by Their Lordships of Hon'ble Supreme Court: 6. The scheme of s. 172 of the Act appears to be this : s. 172(1) of the Act gives a right to the ITO to levy and recover tax in the case of any ship belonging to a non-resident, in a summary manner (ad hoc assessment) notwithstanding anything contained in the other provisions of the Act. It is an absolute right conferred on the assessing authority. The assessee has no right to object to the same. Normally, this will be assessment of the assessee for the year. But, under s. 172(7) of the Act a right is given to the assessee to claim before the expiry of the assessment year relevant to the previous year in which the date of departure of the ship from the Indian port falls, that an assessment according to the provisions of the Act, in a regular manner be made. Thus a right is given to the assessee to opt for a regular assessment although a rough and ready or a summary assessment has already been made under s. 172(4) of the Act. It is a valuable right. If the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of the variation; or (b) no objections are received within the period specified in sub-section (2). (4) The Assessing Officer shall, notwithstanding anything contained in section 153 or section 153B, pass the assessment order under sub-section (3) within one month from the end of the month in which,- (a) the acceptance is received; or (b) the period of filing of objections under sub-section (2) expires. (5) The Dispute Resolution Panel shall, in a case where any objection is received under subsection (2), issue such directions, as it thinks fit, for the guidance of the Assessing Officer to enable him to complete the assessment. (6) The Dispute Resolution Panel shall issue the directions referred to in sub-section (5), after considering the following, namely:- (a) draft order; (b) objections filed by the assessee; (c) evidence furnished by the assessee; (d) report, if any, of the Assessing Officer, Valuation Officer or Transfer Pricing Officer or any other authority; (e) records relating to the draft order; (f) evidence collected by, or caused to be collected by, it; and (g) result of any enquiry made by, or caused to be made by, it. (7) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constituted by the Board for this purpose; (b) eligible assessee means,- (i) any person in whose case the variation referred to in sub-section (1) arises as a consequence of the order of the Transfer Pricing Officer passed under sub-section (3) of section 92CA; and (ii) any foreign company.' 8. If the above provisions of reference to the DRP are to be applied in the context of orders passed under section 172(4), in terms of the provisions of Section 144(1), it is incumbent upon the Assessing Officer to first forward a draft assessment order under section 172(4) to the assessee, and it is only when the assessee does not raise any objection under section 144C(2)(b) or when the time limit for raising such objections expires, the Assessing Officer can go ahead to pass the final assessment order as proposed. While, in terms of the provisions of Section 144C(4) and 144C(15), the limitation period for passing the assessment orders gets suitably extended for this exercise so far as the assessment orders under sections 143, 144, 147, 148 and 153A etc. are concerned, there is no such enabling provision for extension of limitation period. This aspect of the matter becomes e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self, the DRP cannot be under a statutory obligation to issue directions on or before the end of December that year. Similarly, when a VVR is received at the closing of the working hours of the last working day of March of an year, no assessment can at all be done in the case of an eligible assessee. These results are clearly incongruous and patently absurd. 9. That takes us to the question as to what should the judicial authorities like this Tribunal to do when faced with such a situation. We find guidance from Hon'ble Supreme Court's judgment in the case of CIT v. Hindustan Bulk Carriers [2003] 259 ITR 449/126 Taxman 321, wherein it is observed that, a construction which reduces the statute to a futility has to be avoided and that a statute or any enacting provision therein must be so construed as to make it effective and operative on the principle expressed in maxim ut res magis valeat quam pereat i.e., a liberal construction should be put upon written instruments, so as to uphold them, if possible, and carry into effect the intention of the parties. [See Broom's Legal Maxims (10th Edition), p. 361, Craies on Statutes (7th Edition) p. 95 and Maxwell on Statutes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent order as per the law laid down by Hon'ble Courts above, in furthering the scheme of the legislative amendment, in introducing section 144C, and thus reading the references to Section 153 and 153B, as appearing in Section 144C(4) and 144C(15), as illustrative rather than exhaustive, and between interpreting the connotations of an assessment order contrary to the law laid down by Hon'ble Courts above, in construing the scheme of Section 144C contrary to the scheme of the legislative amendment, in inserting section 144C, and, and in thus reading the references to Sections 153 and Section 153B, as appearing in Section 144C(4) and 144C(15), as exhaustive. In view of the above discussions, in our humble and limited understanding, the way forward is that while upholding the plea of the assessee in principle that the Assessing Officer ought to have first forwarded him a draft assessment order under section 172(4) before passing the impugned final assessment order under section 172(4), we also hold that the references to Sections 153 and 153B, appearing in Section 144C(4) and 144 C(15), as illustrative rather than exhaustive and in effect, thus, a reference to section 172(4A) is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel, the assessment orders in which arm's length price determination under section 92CA(3) was done, were subject matter of dispute. These are the cases in which there was no dispute with regard to the application to Section 144C and the only issue was as to what should be done in the cases in which the scheme of Section 144C, though admittedly applicable to the facts of the case, was not adhered to. The case before us, however, is qualitatively different inasmuch the very application of the scheme of Section 144C has been disputed on the facts of the case. Learned Departmental Representative's contention is that the provisions of Section 144C does not apply because an order under section 172(4) is not an assessment order at all. While we have not approved this line of reasoning, we cannot be oblivious to the fact that the Assessing Officer may have had a bona fide belief that the provisions of Section 144C will not apply to the orders under section 172(4). As a matter of fact, as we have noted earlier in this order, while the scheme of the Act does indicate that an order under section 172(4) is covered by the scheme of Section 144C, the provisions of Section 144C(4) and 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has, however, argued at length on merits of these cases as separate grounds of appeal on merits are also raised and submitted that the matter be decided on merits. Learned counsel for the assessee has raised certain fundamental legal and factual issues, particularly with respect to double non taxation and the scheme of the India Singapore DTAA, which have neither been examined at the stage of the authorities below nor learned Departmental Representative is in a position to offer much assistance on the same in the absence of discussions thereon by the authorities below. 4. In the light of the above discussions, bearing in mind entirety of the case and following the above observations of this Tribunal in the case of the LR2 Management K/S (supra), we deem it fit and proper to remit these matters to the file of the Assessing Officer for framing fresh assessment under section 172(4). The above observations made in LR2 Management K/S (supra) will apply mutatis mutandis in these cases as well, and while deciding the matter in remanded proceedings, the Assessing Officer will also take into account LR2 Management K/S (supra) decision, to the extent relevant, on merits. While we apprecia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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