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Income Tax Appellate Tribunal, MUMBAI ‘I’ BENCH, MUMBAI
O R D E R Per Pramod Kumar, VP:
1. By way of this appeal, the assessee-appellant has challenged correctness of the order dated 11th October 2019 passed by the learned Assessing Officer under section 143(3) r.w.s. 144C(13) of the Income Tax Act, 1961 for the assessment year 2016-17.
2. In grounds nos 1 to 2, the assessee appellant has raised the following grievances:-
Ground 1 - On the facts and in the circumstances of the case and in law, the learned DCIT has erred in denying the benefit of Article 8 of the Double Taxation ITA No.: 614/M/2021 Assessment year: 2016-17 Page 2 of 7 Avoidance Agreement between India and UAE (Tax Treaty) to the Appellant by holding it liable to tax in India under Rule 10 of the Income-tax Rules, 1962 with respect to its shipping income of Rs. 16,20,07,133 (being 7.5% of total freight collections of Rs. 216,00,95,105) derived from operation of ships in international traffic.
2. Ground 2 - On the facts and in the circumstances of the case and in law, the learned DCIT has erred in not holding that above shipping income earned by the Appellant under its arrangement with OEL FZCO is also covered by Article 8(4) of the Tax Treaty and hence not liable to tax in India.
3. Ground 3 — On the facts and in the circumstances of the case and in law, the learned DCIT ought to have held that in the absence of any business connection or Permanent Establishment (PE) of the Appellant in India its income is not liable to tax in India even under Article 7 (Business Profits) of the Tax Treaty.
4. Ground 4 — On the facts and in the circumstances of the case and in law, the learned DCIT erred in holding that the Appellant has a fixed place PE in India under Article 5(1) of the Tax Treaty.
5. Ground 5 - On the facts and in the circumstances of the case and in law, the learned DCIT has erred in holding Albatross Shipping Ltd. (Albatross) and BSL Freight Solutions Pvt. Ltd. (BSL) as dependent agency PE of the Appellant in India under Article 5(4) of the Tax Treaty without appreciating that both, Albatross and BSL are agents of independent status within the meaning of Article 5(5) of the Tax Treaty.
6. Ground 6 - On the facts and circumstances of the case and in law, the learned DCIT has erred in levying interest under section 234B of the IT Act despite the fact that the Appellant was not liable to pay any advance tax on the basis of 100% Double Income-tax Relief Certificate issued by the learned DCIT.
7. Ground 7 – On the facts and circumstances of the case and in law, the learned DCIT has erred in initiating penalty proceedings under section 271(1)(c) of the IT Act without appreciating that the Appellant has not concealed any particulars of income or furnished inaccurate particulars of income.
The relevant material facts, so far as these grievances are concerned, are like this. The assessee before us is a company incorporated in, and fiscally domiciled in, the UAE. There is no dispute that the assessee company is entitled to the benefits of the applicable India UAE Double Taxation Avoidance Agreement [‘Indo UAE Tax Treaty; in short]. The assessee is engaged in the business of operation of ships in the international traffic, and has earned freight income from the same. During the course of assessment proceedings, the Assessing Officer noted that while the assessee has earned freight income of Rs. 275,44,81,577/- the assessee has produced the charter party arrangement in respect of “MV OEL India” and only pooling arrangement in respect of Orient Express Line FZCO, which covers receipts of Rs. 59,43,86,472/-. It was thus noted that so far as freight receipts of Rs. 216,00,95,105/- are ITA No.: 614/M/2021 Assessment year: 2016-17 Page 3 of 7 concerned, his claim of exemption under UAE tax treaty, as claimed and accordingly declined the same. It was then observed that the assessee had business connection by way of exclusive agent and front office which also constitutes it’s permanent establishment in India. The income in question was thus held to be taxable in India, and taxed @7.5% of gross receipts under rule 10. When this stand was put to the assessee in a draft assessment order, assessee raised objections before the Dispute Resolution Panel and also filed additional evidences in support of his claim. Learned DRP accepted the additional evidence and to that extent objection of the Assessing Officer was left redundant. However, even while accepting that the admissibility of claim under article 8, on these facts, is covered in favour of the assessee by Hon’ble jurisdictional High Court’s judgement in the case of DIT vs Balaji Shipping (UK) Ltd. [(2012) 253 CTR 460 (Bom)], learned DRP rejected the claim of the Assessing Officer on the ground that the matter has not reached finality as a special Leave Petition, against the aforesaid judgment, is pending before Hon’ble Supreme Court. The relevant observations made by the DRP are as follows:- The DRP has considered the arguments of the assessee as above and the additional evidences filed. The remand report of the AO and the rejoinder filed by the assessee has also been considered. It is noted that as per the India UAE DTAA, (Article-8) the provisions for shipping read as under: ARTICLE 8 Shipping “1. Profits derived by an enterprises of a Contracting State from the operation by that enterprise of ships in international traffic shall be taxable only in that State.
For the purposes of this Article, profits from the operation of ships in international traffic shall mean profits derived by an enterprise described in paragraph (1) from the transportation by sea of passenger, mail, livestock or goods and shall include: (a) the charter or rental of ships incidental to such transportation (b) the rental of containers and related equipments used in connection with the operation of ships in international traffic: (c) the grains derived from the alienation of ships, containers and related equipments owned and operated by the enterprise in international traffic.
3. For the purposes of this Article, interest on funds connected with the operation of ships in international traffic shall be regarded as profits derived from the operation of such ships and the provisions of Article 11 shall not apply in relation to such interest.
ITA No.: 614/M/2021 Assessment year: 2016-17 Page 4 of 7 4. The provisions of paragraph (1), (2) and (3) shall apply to profits from the participation in a pool, a joint business or an international operating agency. It has been submitted by the Appellant that the AO has proposed to deny benefit under Article 8 of the India-UAE Tax Treaty for Rs. 216,00,95,105/- on account of Freight, THS and Detention charges earned from pooling arrangement which OEL, FZCO has with other pooling parties. It is submitted that the AO has denied the benefit of the DTAA between Indai and UAE inspite of DIT Relief Certificate obtained by OEL, FZCO for pooling arrangement with other pooling parties and the DIT Relief Certificate obtained by other pooling parties (for their respective vessels) who are under pooling arrangement with OEL, FZCO. It is noted that as the India UAE DTAA the profits from the “ operation of ships in international traffic” shall be taxable only in the Contracting State in which the place of effective management of the enterprise is situated. Further these provisions also apply to profits from the participation in a pool, a joint business or an international operating agency. Another point to be kept in mind is that while the provisions of section 44B of the IT Act relate to the non-residents engaged in the business of operation of ships, for the purpose of section 44B the ‘business of operation of ships’ is an inclusive definition but term used in restricts the scope of DTAA to the profits from operation of ships in international traffic only. Further the India-UAE DTAA specifically expands the scope of DTAA to cover running/operating own ships, pooled ships, joint shipping business or joint international operating agency but there is no mention of feeder vessels or coastal trade or slot chartering in ships which are not owned by the assessee and which had not been taken on a pool basis. In the case of Balaji Shipping (UK) Ltd (supra), the India-UK DTAA was under consideration and Article 9 of the said India-UK DTAA on shipping reads as under: “1. Income of an enterprise of a Contracting State from the operation of ships in international traffic shall be taxable only in that State.
2. The provisions of paragraph 1 of this Article shall not apply to income from journeys between places which are situated in a Contracting State.
3. For the purposes of this Article, income from the operation of ships includes income derived from the rental on a bareboat basis if such rental income is incidental to the income described in paragraph 1 of this Article.
Notwithstanding the provisions of Article 7 (business profits) of this Convention, the provisions of paragraph 1 and 2 of this Article shall likewise apply to income of an enterprise of a Contracting State from the use, maintenance or rental of containers (including trailers and related equipments for the transport of containers) used for the transport of goods or merchandise ITA No.: 614/M/2021 Assessment year: 2016-17 Page 5 of 7 5. The provisions of this Article shall apply also to income derived from participation in a pool, a joint business or an international operating agency.
Gains derived by an enterprises of a contracting State from the alienation of ships or containers owned and operated by the enterprises shall be taxed only in that state if either the income from the operation of the alienated ships or containers was taxed only in that State, or the ships or containers are situated outside the other Contracting State at the time of the alienation” . It can be seen that the Article 9 of the India-UK DTAA has an expanded scope and includes income derived from the rental on a bareboat basis of ships also if such rental income is incidental to the income described in paragraph 1 of the Article. It is also to be noted that the India UK DTAA has defined the term ‘International Traffic’ in Article 3(1)(1) of the DTAA to mean as under: “the term “international traffic” means any transport by a ship or aircraft operated by an enterprise of a Contracting State except when the ship or aircraft is operated solely between placed in the other Contracting State.” If the meaning assigned to “income from the operation of ships in international traffic” as appearing in India UK DTAA is seen there is no scope for any ancillary income being part of income from the operation of ships in international traffic. The income from transpiration of goods through feeds vessels cannot be a part of income from the operation of ships in international traffic unless feeder vessels are part of the pool in which the assessee is participating. All such income which is not in the nature of income from the operation of ships in international traffic but is an income from “Shipping Business” will have to be taxed only under section 44B of the IT Act which deals with computation of Profit and Gains of Shipping Business in the case of non-Residents. In view of this, the DRP is of the opinion that Income from Freight, THC and Detention charges earned from pooling arrangements which OEL FZCO has with other pooling parties cannot be the income from the operation of ships in international traffic and will not be covered by article 8 of the India UAE DTAA because such ships are not operated by the enterprises under consideration. This part of income will be taxable under section 44B of the IT Act. It is also noted that the AO has rightly taken the stand that the freight eared on account of Freight, THC and Detention charges earned from pooling arrangement which OEL, FZCO has with other pooling parties are not covered by the DTAA concerned and are not covered by the term ‘pool or slot arrangement’. The DRP agrees that this view as the Article 8 of the Indo UAE Treaty only includes profits from operations of ships in international traffic and arrangement cannot not be said to be falling within the ambit of Article 8. Though the Mumbai High Court in the case of Balaji Shipping (UK) Ltd., (2012) 253 CTR (Bom) 460 has held that the feeder vessels are covered by the term ‘pool or slot arrangement’ but the SLP of the ITA No.: 614/M/2021 Assessment year: 2016-17 Page 6 of 7 Department is pending before the Supreme Court in this case titled as ‘Director of Income Tax (International Taxation) Mumbai vs. Balaji Shipping UK Ltd., C.A No. 009504/2013 Registered on 12-03-2013; SLP (C) No. 011148/2013 Registered on 21-10-2013. Since the income that it has no business connection or PE in India becomes academic and is rejected. For all the above reasons, the objections no. 2 & 3 of the assessee are dismissed.
4. The Assessing Officer thus proceeded to decline the Indo UAE tax treaty benefit in respect of the freight receipts of Rs. 216,00,95,105/- and the resultant tax liability of Rs. 16,20,07,132/-. The assessee is aggrieved and is in appeal before us.
We have heard the rival contentions, perused the material on record and duly considered facts of the case in the light of the applicable legal position.
6. The short question we are now required to adjudicate is whether benefit of article 8 can be declined in respect of freight collections earned from cargo/containers loaded on slot of other vessels that the OEL, FZCO was entitled to under the joint business/pooling arrangements.
As learned DRP fairly accepts the issue is covered, in favour of the assessee, by Hon’ble jurisdictional High Court’s judgement in the case of Balaji Shipping (supra). The mere fact that an appeal against the said judgement is pending before Hon’ble Supreme Court does not dilate the binding nature of this precedent. Once Hon’ble jurisdictional High Court takes a view, we are bound to follow the same-in letter and in spirit. Respectfully following the same, we uphold the plea, of the assessee and direct that benefit of article 8 must be extended to entire freight receipts-irrespective of whether the earnings are relating to feeder vessels or by the ships in international traffic. The assessee gets the relief accordingly.
Ground no 1 & 2 are thus allowed.
Learned representatives fairly agree that in the event of grounds nos. 1 & 2 being allowed, all other grounds of appeal will become infructuous and be liable to be dismissed as such.
ITA No.: 614/M/2021 Assessment year: 2016-17 Page 7 of 7 10. Grounds nos. 3 to 7 are thus dismissed as infructuous.
In the result, the appeal is allowed in the terms indicated above. Pronounced in the open court today on the 30th day of August, 2021.