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Income Tax Appellate Tribunal, DELHI BENCH “D”, NEW DELHI
Before: SH. N. K.SAINI & SMT. BEENA A. PILLAI
ORDER PER BENCH: The present appeals have been filed by assessee against 1. the final assessment order passed by Ld.AO pursuant to DRP direction, the details of which are as under:
S. No. Asst. Yr Impugned Order dated 1. 2004-05 19.07.2012 2. 2009-10 19.07.2012 3. 2010-11 20.11.2013
It has been submitted by Ld. AR that assessee was formerly known as SBS Marine Ltd. At the outset Ld. AR submitted that issues are covered by decision of Hon’ble Uttarakhand High Court in assessee’s own case vide order dated 06.08.2015. We are therefore, inclined to dispose of all these appeals by way of a common order for the sake of convenience. -4416/del/2012, 6762/Del/2013
The grounds raised by the assessee for the year under consideration are as under:
Ground No. 1 On the facts, in law and in the circumstances of the case, the Dispute Resolution Panel ("DRP")/Asst. Director of Income Tax, International Taxation, Dehradun ("Assessing Officer") has erred in upholding the validity of re-opening of the assessment and assuming jurisdiction under section 147 read with section 148 of the Income-tax Act, 1961 ("the Act"). Your Appellant prays that the order passed under section 143(3} / 147 read with section 144C of the Act is bad in law and merits to be quashed. Ground No. 2 On the facts, in law and in the circumstances of the case, the DRP/Assessing Officer erred in holding that the income arising to the Appellant from rendering of marine logistic services cannot be computed by applying the provisions of section 44BB of the Act and that the services provided by the Appellant is not covered by section 44BB of the Act. Ground No. 3 On the facts, in law and in the circumstances of the case, the learned DRP/Assessing Officer erred in assessing the income earned by the Appellant as fees for technical services/royalty as per the provisions of section 9(1)(vii)/9(1)(vi)of the Act.
-4416/del/2012, 6762/Del/2013 Ground No. 4 On the facts, in law and in circumstances of the case, the learned DRP/Assessing Officer erred in estimating the income of the Appellant on ad hoc basis at 25% of the gross receipts and assessing the income earned by the Appellant under section 44DA of the Act. Ground No. 5 On the facts, in law and in circumstances of the case, the learned Assessing Officer erred in levying interest under section 234B of the Act. Ground No. 6 On the facts, in law and in circumstances of the case, the learned Assessing Officer erred in levying interest under section 234D of the Act.
4. Insofar as Ground No. 1 is concerned, no argument has been advanced by Ld. AR as the issue has been decided in favour of assessee by Hon’ble High Court on merits. We are therefore, inclined not to adjudicate upon this issue at this stage.
Ground No. 2
5. Ld. AR has submitted that this issue has been considered by Hon’ble Uttarakhand High Court as under:
In the light of the judgment of the Hon’ble Apex Court in Civil Appeal No. 731 of 2007 and connected cases (Oil & Natural Gas Corporation Limited vs. Commissioner of Income Tax & another), the substantial questions of law relating to the -4416/del/2012, 6762/Del/2013
assessability of the amounts under Section 44BB have to be answered against the appellant/revenue. Accordingly, we answer the said questions of law against the revenue in the light of the aforesaid judgment of the Hon’ble Apex Court. 6. On the contrary, Ld. DR supported the order passed by the assessing officer.
We have perused the submissions advanced by both the sides in the light of records placed before us and the decision of Hon’ble Uttarakhand High Court. It is observed that the facts and circumstances are similar and Ld. DR has not brought on record any distinguishing materials. Respectfully following Hon’ble Uttarakhand High Court we allow this ground raised by the assessee.
Ground No. 3, 4 and 6
As we have decided ground No. 2 in favour of assessee, these grounds become purely academic in nature. We are, therefore, not inclined to adjudicate upon them.
Ground No. 5
It has been submitted by Ld. AR that Hon’ble High Court in assessee’s own case has held as under:
In relation to the substantial questions of law relating to Section 234B, we remit the matter back to the Assessing Officer to consider whether there is any -4416/del/2012, 6762/Del/2013 liability under Section 234B on the basis that the amounts in question would fall to be assessed under Section 44BB of the Act.
Respectfully following the same we set aside this issue back to the file of Ld. AO for reconsideration as per the directions of undoable High Court hereinabove. In the result this ground raised by the assessee stands allowed for statistical purposes.
In the result the appeal filed by the assessee stands allowed.
ITA.4416/del/2012 (assessment year 2009-10)
Grounds raised by assessee for the year under consideration are as under:
Ground No. 1 On the facts, in law and in the circumstances of the case, the learned Dispute Resolution Panel ("DRP")/Asst. Director of Income Tax, International Taxation, Dehradun ("Assessing Officer") erred in holding that the income arising to the Appellant from rendering of marine logistic services cannot be computed by applying the provisions of section 44BB of the Act and that the services provided by the Appellant is not covered by section 44BB of the Act. Ground No. 2 On the facts, in law and in circumstances of the case, the learned DRP/ Assessing Officer erred in -4416/del/2012, 6762/Del/2013 assessing the income earned by the Appellant as fees for technical services / royalty as per the provisions of section 9(1)(vii)/9(1)(vi) of the Act. Ground No. 3 On the facts, in law and in circumstances of the case, the learned DRP/Assessing Officer erred in estimating the income of the Appellant on ad hoc basis at 25% of the gross receipts and assessing the income earned by the Appellant under section 44DA of the Act. Ground No. 4 On the facts, in law and in circumstances of the case, the learned DRP / Assessing Officer erred in not accepting the revised computation of income submitted by the Appellant during the course of the assessment proceedings. Ground No. 5 On the facts, in law and in circumstances of the case, the learned Assessing Officer erred in levying interest under section 234A of the Act. Ground No. 6 On the facts, in law and in circumstances of the case, the learned Assessing Officer erred in levying interest under section 234B of the Act. Ground No. 1
This issue has on already been considered by us for assessment year 2004-05 in ground No. 2 above. Following 6762/Del/2013 the same we are inclined to allow this ground of appeal raised by the assessee.
Ground No. 2
As we have decided ground No. 1 in favour of assessee, these grounds become purely academic in nature. We are, therefore, not inclined to adjudicate upon them.
Ground No. 3
Ld. AR submitted that the assessing officer rejected the revised computation of income that was submitted during the course of assessment proceedings. It is submitted that it was brought to the knowledge of the assessing officer that assessee had inadvertently offered and income from invoice number A80196 twice while preparing the computation of income. DRP dealt with the issue as under:
This objection relates to rejection of a revised computation of income submitted by the assessee during the course of the assessment proceedings. It is stated that the assessee noticed a mistake in the computation of income made by it at the time of filing of return and sought to file a revised computation of income during the assessment proceedings before the A. O. The A. O however rejected the claim relying on the decision of the Supreme Court in the case of Goetze (India) [284 ITR 323 SC]. It has been submitted that the -4416/del/2012, 6762/Del/2013
assessee’s case is not covered by the above decision. The submissions have been considered by this Panel. However a perusal of the order of the Supreme Court leaves no doubt that after a return of income has been filed a further deduction can be claimed only by way of filing a revised return of income. In view of this the objection made by the assessee on this point is rejected.
Ld. AR submitted that the decision of Hon’ble Supreme Court in the case of Goetz India Ltd (supra) relied upon by DRP are on a different fact and reissue therein cannot be applied to the facts of the present case.
On the contrary, Ld. DR supported the orders passed by the authorities below.
We have perused the submissions advanced by both the sides in the light of the decisions relied upon by them.
It is observed from the records placed before us that assessee had rectified a factual mistake in the computation of income, while the assessment proceedings were pending. Whereas in the case before Hon’ble Supreme Court in Goetz India Ltd., (supra) the question that arose was, whether a claim could be raised other than by filing revised return. We agree with Ld. AR that the decision of Hon’ble Supreme Court in Goetz India Ltd., (supra) cannot be applied to the facts of the present case. In order to safeguard the interest of the 6762/Del/2013 revenue we are inclined to set aside this issue to Ld. AO for due verification of facts and to consider the claim of assessee as per law.
Accordingly this ground raised by the assessee stands statistically allowed.
(assessment year 2010-11)
Grounds raised by the assessee for the year under consideration are as under:
Ground no.1 On the facts, in law and in the circumstances of the case, the learned Dispute Resolution Panel ("DRP")/ Asst. Director of Income Tax, International Taxation, Dehradun ("Assessing Officer") erred in holding that the income arising to the Appellant from rendering of marine logistic services cannot be computed by applying the provisions of Section 4466 of the Act and that the services provided by the Appellant is not covered by Section 44BB of the Act. Ground No. 2 On the facts, in law and in circumstances of the case, the learned DRP/ Assessing Officer erred in assessing the income earned by the Appellant as fees for technical services / royalty as per the provisions of Section 9(i)(vii) / 9(i)(vi) of the Act. GroundNo.3 On the facts, in law and in circumstances of the case, the learned DRP/Assessing Officer erred in estimating -4416/del/2012, 6762/Del/2013 the income of the Appellant on ad hoc basis at 25% of the gross receipts and assessing the income earned by the Appellant under Section 44DA of the Act. Ground No. 4 On the facts, in law and in circumstances of the case, the learned Assessing Officer erred in levying interest under Section 234A of the Act. Ground No. 5 On the facts, in law and in circumstances of the case, the learned Assessing Officer erred in levying interest under Section 234B of the Act. Ground No. 6 On the facts, in law and in circumstances of the case, the learned Assessing Officer erred in not granting credit for tax deducted at source (TDS) amounting to Rs. 18,644,379. Ground No. 7 On the facts, in law and in circumstances of the case, the learned Assessing Officer erred in levying interest under Section 234D of the Act. Ground No. 1
This issue has already been considered by us for assessment year 2004-05 in ground No. 2 and ground No. 1 for assessment year 2009-10 above. Following the same we are inclined to allow this ground of appeal raised by the assessee. -4416/del/2012, 6762/Del/2013 Ground No. 2 and 3
21. As we have decided ground No. 1 in favour of assessee, these grounds become purely academic in nature. We are, therefore, not inclined to adjudicate upon them.
Ground No. 4 and 5
This issue has been considered by us for assessment year 2004-05 in ground No. 6 above. Following the same we are inclined to set aside these grounds to assessing officer.
Accordingly these grounds raised by the assessee stands allowed for statistical purposes.
Ground No. 6 and 7
It has been submitted by Ld. AR that assessee has preferred rectification application before Assessing Officer along with the original TDS certificate and is pending.
We are, therefore, not inclined to adjudicate this issue. The assessing officer is directed to pass necessary orders after due verification of facts as per law.
It is observed from records placed before us that assessee has preferred a stay application and a miscellaneous application for this year under consideration being SA no. 302/Del/2014 & MA no. 179/Del/14. As we have disposed off the appeal in the above paragraph’s, the 6762/Del/2013 stay and miscellaneous applications become infructous. Accordingly the same is dismissed.
In the result appeal filed by the assessee for all the years under consideration stands allowed.
Order pronounced in the open court on 10th February, 2017.