DIRECTOR OF INCOME TAX (INTERNATIONAL TAXATION) vs. MITSUTOR SHIPPING AGENCY PVT LTD
What did the High Court hold?
The Tribunal held that the assessee was eligible for the benefits of the Double Taxation Avoidance Agreement (DTAA). It found that while some details were initially not filed before the Assessing Officer (AO), they were subsequently submitted to the Commissioner (Appeals) (CIT(A)). The CIT(A) accepted these documents, considering there were sufficient reasons for the delay. After obtaining a remand report from the AO, the CIT(A) concluded that the effective management of the assessee-company was in the Netherlands, allowing the DTAA benefit that the AO had disallowed. The Tribunal observed that the Revenue failed to point out any contrary material to challenge the CIT(A)'s finding. The Tribunal confirmed the CIT(A)'s decision, finding no infirmity in the order. The High Court found that the Tribunal's finding was based on material before it and satisfied the requirement of Article 8A of the DTAA regarding the place of effective management. Therefore, no substantial question of law arose for consideration.
What were the facts?
The Revenue has appealed against an order of the Income-tax Appellate Tribunal (ITAT), Rajkot Bench, for Assessment Year 2007-08. The assessee, Mitsutor Shipping Agency Pvt Ltd, representing MV African Halcyon (a Netherlands-registered shipping company), filed provisional and final returns claiming benefits under the India-Netherlands Double Taxation Avoidance Agreement (DTAA). The Assessing Officer (AO) rejected this claim, adding Rs. 58,66,795 to the taxable income, stating the assessee failed to provide necessary documents. The Commissioner (Appeals) allowed the assessee to produce additional documents, including incorporation and residence certificates, and minutes of meetings. After a remand report from the AO, the CIT(A) deleted the addition, finding the place of effective management was in the Netherlands. The ITAT upheld the CIT(A)'s order.
What were the issues?
1. Whether the Appellate Tribunal was right in law and on facts in confirming the order of the CIT(A) in deleting the addition of Rs. 58,66,795, made on account of not allowing relief under the DTAA by the Assessing Officer? (Question of law and fact, concerning the interpretation and application of the DTAA). 2. Whether the Appellate Tribunal was right in law and on facts in not considering that the assessee had not submitted any evidence regarding the place of effective management before the CIT(A) or the Appellate Tribunal? (Question of law and fact, concerning the evidence presented and considered). Assessee's Contentions: The assessee argued that it was eligible for DTAA benefits because the place of effective management of its company was in the Netherlands, as per Article 8A of the India-Netherlands DTAA. Evidence to this effect was produced before the CIT(A) and subsequently considered by the AO in a remand report. The ITAT confirmed this finding. Revenue's Contentions: The Revenue contended that the assessee failed to provide sufficient evidence regarding the place of effective management before the Assessing Officer. They also questioned the consideration of evidence presented later before the CIT(A) and ITAT.
Which sections of the Income-tax Act were involved?
Section 172(3)
AI-generated summary — verify with the full judgment below
TAXAP/12/2012 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL No. 12 of 2012 For Approval and Signature: HONOURABLE MR.JUSTICE V. M. SAHAI
HONOURABLE MR.JUSTICE N.V. ANJARIA
========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 To be referred to the Reporter or not? 3 Whether their Lordships wish to see the fair copy of the judgment? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder? 5 Whether it is to be circulated to the civil judge? ========================================================= DIRECTOR OF INCOME TAX (INTERNATIONAL TAXATION) Versus MITSUTOR SHIPPING AGENCY PVT LTD ========================================================= Appearance : MRS MAUNA M BHATT for Appellant(s) : 1, None for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE V. M. SAHAI and HONOURABLE MR.JUSTICE N.V. ANJARIA Date : 04/07/2012 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE N.V. ANJARIA) The present appeal preferred by the Revenue is directed against the order dated 12th August 2011 of the Incometax Appellate Tribunal,
TAXAP/12/2012 2/5 JUDGMENT Rajkot Bench, Rajkot in ITA No. 26/RJT/2011 for the Assessment Year 200708. 2.0 The appellant has raised following two questions, formulated in the memorandum of appeal, as substantial question of law. “[A] Whether the Appellate Tribunal is right in law and on facts in confirming the order passed by CIT(A) in deleting the addition of Rs.58,66,795/, made on account of not allowing relief of the DTAA by the Assessing Officer? [B] Whether the Appellate Tribunal is right in law and on facts in not considering the fact that assessee has not submitted any evidence regarding place of effective management before CIT(A) or Appellate Tribunal?” 3.0 The relevant facts involved in the appeal and with reference to which the aforesaid questions are framed, are that one MV African Halcyon, a Shipping Company, which is registered in Netherlands and represented in India by respondent herein i.e. M/s. Mitsutor Shipping Agency Pvt Ltd. which is the respondent herein filed its provisional returns on 22nd February 2008 under Section 172(3) of the Act. The Port Clearance Certificate was thereupon issued to it. In the final return submitted on 5th March 2008, the said assessee claimed the benefit of Double Taxation Avoidance Agreement (DTAA) entered into between Government of India and Government of Netherlands. The covenant was entered into with an object of avoiding double taxation and preventing the fiscal evasion. 3.1 The Assessing Officer in his Assessment Order dated 30th December 2008 determined the taxable income at Rs.58,66,795/ demanding the tax of Rs.24,77,547/ as payable rejecting the benefit which was claimed
TAXAP/12/2012 3/5 JUDGMENT by the assessee under DTAA. According to the Assessing Officer, the assessee had failed to supply documents necessary to avail the benefit.
3.2 In the proceedings of appeal, upon an application by the respondent, the appellate commissioner permitted production of certain documents by the assessee. He was of the view that due to short time the assessee could not produce the same before the Assessing Officer. Copies of certificate of incorporation in Netherlands, certificate of residence, minute of the Annual General Meeting etc. were produced by the respondent assessee. These evidences were sent to Assessing Officer for his comments and the Assessing Officer submitted his remand report.
4.0 Article 8A of the Double Taxation Avoidance Agreement between the Government of India and and the Government of Netherlands inter alia provides that profits from the 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. Therefore what was required for the assessee in order to earn the benefit of the covenant was to show and establish before the Income Tax Authorities that the place of effective management of its company was at Netherlands. On the basis of the documents which were permitted by the Appellate Commissioner to be produced before him in course of hearing of the appeal and as there was no adverse comments made on these documents in the remand report of the Assessing Officer, the Commissioner (Appeals) found that assessee was able to the place of its effective management was Netherlands. Accordingly, he held that the assessee was eligible for benefit of DTAA and the income which was assesseed by Assessing Officer for the purpose of tax was ordered to be deleted. 5.0 The Revenue went in appeal against the order of the Appellate
TAXAP/12/2012 4/5 JUDGMENT Commissioner. However, the Incometax Appellate Tribunal by its order, which is impugned in the present appeal, dismissed the appeal of the Revenue and confirmed the order of the Appellate Commissioner. The Tribunal observed inter alia as under: “ We find that though, certain details were not filed before the AO but same was filed before the CIT(A). The CIT(A) has accepted the document as there were sufficient reason for which the assessee could not file certain documents. The documents filed before the CIT(A) and the CIT(A) called the remand report from the AO. The AO submitted the remand report dated 27022010. The CIT(A) after considering the relevant material and remand report of the AO, find that the effective management of the assessee company is in Netherlands. Accordingly, the benefit disallowed by the AO has been allowed. The revenue has failed to point out any contrary material either at the time of hearing or from the record against the finding of the CIT(A). The documents pointed out by the ld. D.R. That those were filed first time before ITAT does not effect to the conclusion as effective management of the company was same as in earlier years. Under the circumstances, we do find any infirmity in the order of the CIT(A).” 6.0 From the material documents allowed to be produced, the assessee could satisfy the Commissioner (Appeals) that the place of effective management of its enterprises was situated at Netherlands and thus, the requirement of condition in Article 8A of DTA agreement was met with. The Tribunal has rightly confirmed the decision of the Appellate Commissioner holding the assessee to be eligible for benefits of DTAA. While confirming the findings of the Commissioner, the Tribunal also observed that Revenue had failed to point out any contrary material either from the record or at the time of hearing before it. 6.1 The Commissioner (Appeals) as well as the Tribunal, have
TAXAP/12/2012 5/5 JUDGMENT concurrently arrived at the findings that the assessee is eligible for the benefit. The finding arrived at by the Tribunal is based on material before it and was based on the reading of the documents submitted by assessee whereby it was pointed out that necessary requirement about place of effective management under the relevant clause of agreement was satisfied. No substantial question arises for consideration of this Court. 7.0 Accordingly, this Tax Appeal is dismissed. [V. M. SAHAI, J.] [N. V. ANJARIA, J.] Amit
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