Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, Hyderabad ‘ B ‘ Bench, Hyderabad
Before: Smt. P. Madhavi Devi & Shri Inturi Rama Rao
Per Smt. P. Madhavi Devi, J.M.
Both are assessee’s appeals for the A.Y 2014-15
against the order passed by the AO u/s 172(4) of the Act.
At the time of hearing, the learned Counsel for the
assessee has filed a letter dated 03.07.2018 seeking permission to
withdraw the appeal in ITA No. 537/Hyd/2018, because the
assessee had already filed an appeal against the same order of
CIT(A) for the same A.Y. and on the same issues on 27.3.2017
Page 1 of 4
ITA Nos 558 of 2017 and 537 of 2018 Arcochart Trading and Shipping Private Ltd Mumbai.
which is numbered as ITA No.558/Hyd/2017. Therefore, there is
duplication of appeals. We accordingly dismiss appeal in ITA
No.537/Hyd/2018.
As regards ITA No.558/Hyd/2017 is concerned, the
assessee has raised the following grounds of appeal:
“On the facts and circumstances of the case and in law:
The Ld CIT(Appeals) erred in dismissing the appeal of the appellant company in limine and not admitting the same by not condoning the delay in filing of the appeal on the basis of the application filed by the Appellant for condonation of the delay together with the affidavit filed along with the appeal memo.
The Ld Income Tax Officer, International Taxation (Assessing Officer or 'AO') erred in passing the order under section 172(4) of the Income tax Act on the Appellant's agent and assessing the freight income from the vessel "MV Polypailin Naree" by applying provisions of section 172 of the Act.
The Ld AO has made the assessment under section 172(4) even though the Appellant in the instant case is an Indian resident Shipping Company and the provisions of section 172 are not applicable to resident Ship Owner.
The Ld Commissioner of Income Tax (Appeals) erred in not appreciating that the Ld Income Tax Officer, International Taxation erred in applying the rate of 7.5% of the freight income earned as per the provisions of section 172(2)when the said section is applicable on the non resident ship Owner and hence the order is void ab initio.
The Ld AO further erred in applying the income tax rate of 40% while computing the income tax liability of the Appellant by erroneously considering the Appellant as a non resident Company.
The Ld AO further erred in treating M/s Interocean Shipping Pvt Ltd as Agent of the Appellant Company
Page 2 of 4
ITA Nos 558 of 2017 and 537 of 2018 Arcochart Trading and Shipping Private Ltd Mumbai.
under the provisions of section 172(3) when that provisions is applicable only if the Ship Owner is the Nonresident. 7. The Ld AO further erred in passing the protective assessment order on the Indian agent when the tax on the income from freight earned by the Appellant Company is paid in its assessment order passed under section 143(3) of the Income tax Act as the Appellant Company is a resident company. The appellant craves to add to, alter or amend the foregoing grounds, which are without prejudice to one another, at the time of hearing”.
As seen from Ground No.1, the CIT (A) has dismissed
the assessee’s appeal by refusing to condone the delay. The
learned Counsel for the assessee submitted that the delay in filing
of the appeal before the CIT(A) was only of 40 days and that the
application u/s. 154 of the Act, assessee had filed under the
impression that the assessee would get relief in the said appeal
but the application u/s. 154 was rejected on 20.02.2015 and
therefore, the appeal against the order u/s 172(4) was filed with a
condone delay petition. It was submitted that the delay was only
due to the assessee pursuing the 154 application and was not
wilful and therefore prayed for relief.
The learned DR, however, relied upon the orders of the
CIT (A).
Page 3 of 4
ITA Nos 558 of 2017 and 537 of 2018 Arcochart Trading and Shipping Private Ltd Mumbai.
Having regard to the rival contentions and the material
on record, we find that the delay in filing of the appeal before the
CIT (A) was only of 40 days. We are convinced by the reasons
given by the assessee that he was pursuing the alternate remedies
before the AO and therefore, the delay has occurred. We therefore,
condone the delay of 40 days in filing of the appeal before the
CIT(A) and direct the CIT (A) to dispose of the appeal on merits.
In the result, assessee’s appeal in ITA
No.558/Hyd/2017 is treated as allowed for statistical purposes.
Order pronounced in the Open Court on 31st August, 2018.
Sd/- Sd/- (Inturi Rama Rao) (P. Madhavi Devi) Accountant Member Judicial Member
Hyderabad, dated 31st August, 2018. Vinodan/sps Copy to: 1 M/s. Archochart Trading & Shipping (P) Ltd, Flat No.01, MK Bhawan, Ground Floor, 300 Bhagat Singh Road, Fort, Mumbai- 400001 2 ITO (International Taxation), Nellore 3 CIT (A)-10 Hyderabad 4 CIT – (IT & TP) Hyderabad 5 The DR, ITAT Hyderabad 6 Guard File
By Order
Page 4 of 4