APL CO. PTE. LTD,MUMBAI vs. DCIT (IT) 1(1)(2), MUMBAI

Date of Hearing 17.04.2017 Date of Order – 28.04.2017

O R D E R PER: SHAMIM YAHYA This appeal by the assessee is directed against order of assessing officer dated 14.12.2016 passed under section 143(3) read with section 144C (13) of the I.T Act, under the direction of dispute resolution panel 1 Mumbai vide direction dated 01.12.2015.

2. The grounds of appeal read as under:

APL Co. Pte. Ltd., ITA no.449/Mum./2017 Ground No. 1 1.1. On the facts and in the circumstances of the case and in law, the Hon'ble Dispute Resolution Panel ('DRP') and the learned Deputy Commissioner of Income-tax (International Taxation) - 1(1)(2), Mumbai (DCIT) erred in denying the benefit of Article 8 of the India Singapore Double Taxation Avoidance Agreement ('Tax Treaty') to the freight income earned by the Appellant by invoking provisions of Article 24 (limitation of relief) of the Tax Treaty without appreciating that Article 24 of the Tax Treaty has no applicability in the present case.

1.2. The Hon'ble DRP and learned DCIT erred in not appreciating that Article 24 of the Tax Treaty does not apply to the Appellant as the Appellant's freight income is taxable in Singapore on accrual basis and not on remittance or receipt basis (i.e. entire freight income is taxable in Singapore irrespective of remittance of freight to Singapore).

The Appellant prays that the benefit of Article 8 of Tax Treaty should be accordingly allowed in the present case.

2. Ground No. 2 2.1. On the facts and in the circumstances of the case and in law, the Hon'ble DRP erred in not accepting the letter dated 7 September 2

APL Co. Pte. Ltd., ITA no.449/Mum./2017 2016 issued by the Inland Revenue Authority of Singapore wherein it has been confirmed that freight income of the Appellant is assessed to tax in Singapore on accrual basis (i.e. not on remittance basis) and therefore Article 24 would not be applicable.

2.2. On the facts and in the circumstances of the case and in law, the Hon'ble DRP erred in not accepting the global audited financial statements, computation of total income and tax return filed in Singapore for the calendar years 2011 and 2012 in support of accrual basis of taxation of Appellant's income in Singapore under the tax laws of Singapore.

The Appellant prays that the benefit of Article 8 of Tax Treaty should be accordingly allowed to the Appellant in the present case.

3. Ground No. 3 3.1. Without prejudice to the above, the Hon'ble DRP and learned DCIT erred in not appreciating that the condition of remittance to Singapore prescribed in Article 24 has been satisfied as the freight collections have been ultimately remitted to the Appellant's bank account in Singapore.

3.2. The Hon‟ble DRP erred in not accepting the bank statements in support of remittance of freight collections to Singapore.

APL Co. Pte. Ltd., ITA no.449/Mum./2017 The Appellant prays that the benefit of Article 8 of Tax Treaty should be accordingly allowed to the Appellant in the present case.

Ground No. 4 4.1. On the facts and in the circumstances of the case and in law, the Hon'ble DRP and learned DCIT erred in holding that the Appellant has a fixed place Permanent Establishment ('PE') in India under Article 5(1) of the Tax Treaty.

4.2. On the facts and in the circumstances of the case and in law, the Hon'ble DRP and learned DCIT erred in holding APL India Private Limited („APL India') as an agency PE of the Appellant in India under Article 5(8) of the Tax Treaty.

5. Ground No. 5 Without prejudice to the above, the Hon'ble DRP and learned DCIT erred in not appreciating that no income of the Appellant could be brought to tax in India as the arm's length commission paid to its agent, APL India (and accepted by the tax department), which is taxable in India in the hands of APL India, fully extinguishes the tax liability of the Appellant in India.

6. Ground No. 6

APL Co. Pte. Ltd., ITA no.449/Mum./2017 On the facts and in the circumstances of the case and in law, the learned DCIT erred in levying interest under section 234B of the IT Act without appreciating that the Appellant was not liable to pay any advance tax on the basis of (a) Double Income Tax Relief Certificate issued by the Tax Department itself and (b) the fact that freight income of the Appellant was tax deductible at source having regard to the specific provisions of section 209(1)(d) of the IT Act.

The Appellant craves leave to add, alter, amend, vary, omit or substitute all or any of the Grounds of Appeal or add a new ground or Grounds of Appeal and to submit such statements, documents and papers as may be considered necessary at or before the appeals hearing.

3. Apropos ground number 1 and 2

In this case assessee is a Pvt. Ltd. Company and a tax resident of Singapore. The assessee is engaged in the business of operation of ship of international traffic. The assessing officer has observed that in the return of income, the assessee has claimed that the gross freight earnings including detention collection of Rs.15,82,56,80,977/- is not taxable as per Article 8 of the Agreement for Avoidance of Double Taxation between India and Singapore as the profits derived from the operation of ships

APL Co. Pte. Ltd., ITA no.449/Mum./2017 international traffic by an enterprises of Singapore are taxable only in Singapore. During the course of the assessment proceedings vide order sheet noting dated 18.12.2016, the assessee was asked to explain whether they have complied with the provisions of Limitation of Relief as per Article 24 of the Double Taxation Avoidance Agreement between India and Singapore. The provisions of this Article are as under:

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 the income as is remitted to or received in that other Contracting State.

In reply, the assessee has stated that the freight receipt available for remittance after excluding the expenses incurred in India and certain amounts retained in India for specific purposes have been remitted to the assessee's account with Citibank, New York. The assessee has also stated that the said remittance to New York have been transferred to Singapore. However, the assessee has failed to produce any documents/statements of bank account whereby it could be proved that the said amounts remitted from India have been received in Singapore as there is no nexus between freight collected from India and the amount finally received in Singapore. The assessee has further stated that though the funds are not directly received by the assessee in Singapore, the freight income from Indian operations is ultimately remitted to Singapore through its account in Bermuda and therefore, the same amounts to constructive receipt by the assessee. It is also submitted that whether the assessee remits from its own bank accounts then transfers the same after payment to creditors or directly remit the funds will amount to be the same. The assessee has contended that the provisions of Article 24 of the DTAA are not applicable in its case as the world income of the assessee as a resident of Singapore is APL Co. Pte. Ltd., ITA no.449/Mum./2017 liable to tax under the Singapore Tax Law on accrual basis. On this issue, the assessee has filed a detailed written submission dated 22.02.2016.

5. Thereafter the assessing officer reproduced the aforesaid portion of the Ld. CIT (A) order and held as under:

“In view of the above, it is held that benefits of exemption of profits from operation of ships under Article 8 of the DTAA between Indian and Singapore is not available to the assessee due to the non-fulfilment of requirements of Article 24 as regards limitation of benefits.

As it has been held that assessee has not fulfilled the conditions of Article 24, its entire freight income becomes taxable in India, and its income is covered by section 44B and hence, the total

APL Co. Pte. Ltd., ITA no.449/Mum./2017 income of the assessee is determined at 7.5% of the total freight earned from India of Rs.15,82,28,60,475/-, which amounts to Rs.118,67,,14,536/-. This is the assessee‟s income after taking into account of the expenses including the agency commission.”

6. While dealing with the assessee objection the DRP in para 4.5.1 held as under:

“We have considered the facts of the case and submissions made by the assessee. It has been argued that article 24 of DTAA of India with Singapore is not applicable to the assessee and instead Article 8 of the DTAA is applicable to it. However, we find that in the assessee's own case in A Y 2008-20091 the CIT (Appeals) order was against the assessee and it has filed an appeal against the said order with Mumbai ITAT. There being no change in the facts and circumstances, respectfully following the said decision for A.Y, 2008- 09, we decline to interfere. As the assessee has also not been able to state as to why the additional evidence was not filed before the AO, we do not permit the filing of these evidence at this stage. Accordingly, the assessee's objection is rejected especially relying on the decision of Mumbai ITAT in the case of Thoresen Chartering Singapore {Pte} Limited. [(2009) 315 ITR (AT) 376 (Mumbai)].”

APL Co. Pte. Ltd., ITA no.449/Mum./2017 “We have considered the facts of the case and submissions made by the assessee. it has been argued that the assessee has remitted the amount to APL Bermuda New York Account from where the remittance was made to APL Singapore Account and hence, as per Article 24, if the remittance is made to the other contracting state, there is no tax in the contracting state or there is only minimum tax in contracting state. Similar ground was also confirmed by the CIT (Appeals in assessee's own case in AY 2008 2009 with the observation that no documentary evidence proving the remittance made to the APL Singapore account was produced. During the proceeding before us, the assessee has prayed for permitting filing of additional evidence but it has not been demonstrated as to what prevented it from filing the same before the AO. As the assessee is already agitating the very same issue before the ITAT in an earlier year, we do not permit the same and decline to interfere at this stage. Accordingly, the assessee's objection is rejected.”

“We have heard the rival submissions, perused the relevant findings given in the impugned order as well as the material referred to before us. Before we dwell upon the issue as to whether the limitation clause as appearing in Article 24 of India-Singapore DTAA is applicable to the facts of present case or not, it would be relevant to peruse the relevant Article itself, which for the sake of ready reference is reproduced hereunder :-

Article 24: Limitation of relief –

2. However, this limitation does not apply to income derived by the Government of a Contracting State or any person approved by the competent authority of that State for the purpose of this paragraph. The term "Government" includes its agencies and statutory bodies."

The aforesaid Article provides a limitation on relief provision related to remittance basis of taxation which is applied in few countries like Singapore and United Kingdom. Under the remittance basis of taxation, income arising outside the country is taxable not when the income is earned or arises or is derived, but only when that income is remitted to and received in the resident country. In Singapore, the resident companies are generally taxed on income accruing in or derived from Singapore on accrual basis, however, income accruing or derived from outside Singapore is taxed on remittance basis. This is the APL Co. Pte. Ltd., ITA no.449/Mum./2017 consequence of Sec. 10(1) of Singapore Income Tax Act, which reads 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”

(Emphasis added is ours)

If we analyse the relevant phrases used in Article 24, it is quite apparent that two conditions have been envisaged that needs to be fulfilled; firstly, income earned from the source state (here in this case, India) is exempt from tax or is taxed at a reduced rate in the source state (India) as per the DTAA; and secondly, under the laws in force of the resident state (Singapore), such income is subject to tax by reference to the amount thereof which is remitted to or received in the resident state and not by reference to the full 13

APL Co. Pte. Ltd., ITA no.449/Mum./2017 amount thereof. If both the conditions are satisfied, then only the exemption is allowed or the reduced rate of tax is levied on the amount so remitted. The key phrases which need to be borne in mind while understanding Article 24 is “under the laws in force in other contracting state”(Singapore). Here, in this case, the income of assessee-company from shipping operations is not taxable on remittance basis under the laws of Singapore, albeit is liable to be taxed in-principle on accrual basis by virtue of the fact that this income under the income tax laws of Singapore is regarded as “accruing in or derived from Singapore”. The shipping income from overseas is not treated as foreign income because it is accrued in and derived from Singapore. From the plain reading of Sec.10(1) of Singapore Income Tax Act it can be inferred that Firstly, the tax is on income accruing in or derived from Singapore and it is completely irrelevant whether the income is received in Singapore or not and; secondly, where the income is accrued or is derived from outside Singapore, the liability to tax arises on such foreign income only if the foreign income is received in Singapore. It has already been brought on record and also it is an undisputed fact that the Singapore Income Tax Act requires that the shipping enterprises should file their statement of each year of assessment for the APL Co. Pte. Ltd., ITA no.449/Mum./2017 amount of income derived from its operations of Singapore or foreign ships in Singapore. The entire income is to be disclosed in the return of income and the statement is issued when the Comptroller of Income-tax is satisfied that a company has correctly reported its income accrued in or derived from Singapore from its business carried on in Singapore. We have already perused the copy of the return of income along with the computation filed with the IRAS for the year ending on 31.12.2008, relevant for Assessment Year 2008-09, copy of which is appearing from pages 23 to 30 of the paper book. In the said return, the column mentioning the foreign income received in Singapore has been reported to be „NIL‟, whereas income accruing in or derived from Singapore has been shown at SGD 2,207,928. A confirmation/Certificate has also been obtained from IRAS, the content of which is reproduced hereunder:-

“Dear Sir/Madam APL Co. Pte Ltd. (“the company”) FREIGHT INCOME YEARS OF ASSESSMENT (“YAs”) 2008 & 2009 1. We refer to our discussions on the subject.

2. You have stated that the company is primarily engaged in shipping and related businesses and it

APL Co. Pte. Ltd., ITA no.449/Mum./2017 receives freight payments for its services. During calendar years 2007 and 2008, the company derived freight income from third parties including freight income from Indian operations, that is, income from the carriage of goods/cargo to and from Indian ports. The company has reported the freight income in its Singapore tax returns for the YAs 2008 and 2009.

4. The freight income derived by the company from Indian operations was accrued in or derived from a business carried on in Singapore. As such, it was regarded as Singapore sourced income and assessed to tax in Singapore on accrual basis (i.e. not remittance basis) in the YAs 2008 and 2009.

Yours faithfully LAU KIAT PENG (MS) SENIOR TAX OFFICER CORPORATE TAX DIVISION for COMPTROLLER OF INCOME TAX” [Emphasis added is ours] From the aforesaid Certificate/Confirmation given by IRAS, it is ostensibly clear that the freight income derived by the assessee- company from the Indian operations was accrued in or derived from business carried on in Singapore. As such, it is regarded as Singapore sourced income and assessed to tax in Singapore on accrual basis and not on remittance basis. In light of this Certificate, there cannot remain any iota of doubt that the freight income derived by assessee-company from Indian operations in terms of Singapore Income Tax Act is to be reckoned as accrued in or derived from business carried in Singapore and not some kind of foreign income which is to be taxed on remittance basis. The authenticity of the aforesaid Certificate had come up for consideration before the Hon'ble

APL Co. Pte. Ltd., ITA no.449/Mum./2017 Gujarat High Court in the case of India-Singapore DTAA and that too, in the case of a shipping company, M.T. Maersk Mikage vs. DIT (IT) (supra).The relevant observations of Hon‟ble Court are reproduced hereunder:-

“15.This brings us to the core issue strenuously debated by both sides viz. that of applicability of Article 8 vis-a-vis Article 24 of DTAA. We may quickly refresh the facts. ST Shipping is a company based in Singapore. Through the shipping business carried out at Indian ports, ST Shipping earned income, on which, it claims immunity from Indian income tax. The Revenue contends that the remittance of such accrued income not having taken place at Singapore, Article 24 will apply and consequently Article 8 providing for avoidance of table taxation would not apply.

16.The fact, that the income in question which arises out of shipping operations by virtue of Clause-1 of Article 8 of the DTAA would be taxable only in Singapore, is not in serious dispute. The moot question therefore is whether operation of Article 8 is ousted by virtue of Clause-1 of Article 24. As noted, Article-24 of DTAA pertains to limitation of relief. Under clause-1 thereof where the APL Co. Pte. Ltd., ITA no.449/Mum./2017 agreement provides that the income from sources in contracting states (in the present case, India) shall be exempt from tax or tax at a reduced rate and under the laws in force in other contracting states (i.e. Singapore), such income is subject to tax by reference to the amount thereof which is remitted or received in that State and not by reference to the full amount thereof then the exemption or reduction of tax under the agreement would be limited to so much of the income as is remitted to or received in that contracting State. In plain terms therefore, if the income in question was taxable in Singapore on the basis of receipt or remission and not by reference to the full amount of income accruing, clause-1 of Article 24 would apply and dependent on the facts of the case, exemption as per Article 8 either in whole or in part would be excluded.

17.It is, in this context, that the certificate dated 09.01.2013 issued by the Inland Revenue Authority of Singapore assumes significance. In the said certificate, as noted, it was certified that the income in question derived by ST Shipping would be considered as income accruing in or derived from the business carried on in APL Co. Pte. Ltd., ITA no.449/Mum./2017 Singapore and such income therefore, would be assessable in Singapore on accrual basis. It was elaborated that the full amount of income would be assessable to tax in Singapore not by reference to the amount remitted to or received in Singapore. In fact, the certifying authority went on to opine that in view of such facts, Article 24.1of the DTAA would not be applicable and consequently, Article 8 would apply.

18.To this later opinion of the Revenue authority of Singapore, we may not be fully guided since it falls within the realm of interpretation of the relevant clauses of DTAA. However, in absence of any rebuttal material produced by the Revenue, we would certainly be guided by the factual declaration made by the said authority in the said certificate and this declaration is that the income would be charged at Singapore consider in it as an income accruing or derived from business carried on in Singapore. In other words, the full income would be assessable to tax on the basis of accrual and not on the basis of remittance. This certificate was before the Commissioner while he passed the impugned order. The contents of this certificate were not doubted. If that be so, what emerges from the record is APL Co. Pte. Ltd., ITA no.449/Mum./2017 that the income in question would be assessable to tax at Singapore on the basis of accrual and not remittance. This would knock out the very basis of the Assessing Officer and Commissioner for invoking clause-1 of Article 24 of DTAA. Both the authorities considered the question of remittance of income as the sole requirement for invoking Article 24.1 of DTAA an interpretation which according to us does not flow from the language used. As noted the essence of Article 24.1 is that in case certain income is taxed by a contracting State not on the basis of accrual, but on the basis of remittance, applicability of Article 8 would be ousted to the extent such income is not remitted. This clause does not provide that in every case of non-remittance of income to the contracting state, Article 8 would not apply irrespective of tax treatment such income is given. When in the present case, we hold that the income in question was not taxable at Singapore on the basis of remittance but on the basis of accrual, the very basis for applying clause-1 of Article 24 would not survive. The contention of Shri Mehta for revenue that the certificate of the Singapore revenue authorities is opposed to provisions of section 10 of the APL Co. Pte. Ltd., ITA no.449/Mum./2017 Singapore Income Tax Act also cannot be accepted. The Revenue does not question genuineness of the certificate. It cannot dispute the contention on the ground that the same are opposed to the statutory provision.

19.By way of a reference, we may notice that the Tribunal also in case of this very assessee in case of Alabra Shipping Pte Ltd. vs. Income-tax Officer International Taxation, Gandhidham, reported in 62 Taxmann.com185 has taken a somewhat similar view by observing as under:-

"6.As a plain reading of Article 24(1) would show, this LOB clauses comes into play when (i) income sourced in a contracting state is exempt from tax in that source state or is subject to tax at a reduced rate in that source state, (ii) the said income (i.e. income sourced in the contracting state) is subject to tax by reference to the amount remitted to, or received in, the other contracting state, rather than with reference to full amount of such income; and (iii) in such a situation, the treaty protection will be restricted to the amount which is taxed in that other contracting state. In simple words, the benefit of treaty protection is restricted to the amount of income which APL Co. Pte. Ltd., ITA no.449/Mum./2017 is eventually subject matter of taxation in the source country. This is all the more relevant for the reason that in a situation in which territorial method of taxation is followed by a tax jurisdiction and the taxability for income from activities carried out outside the home jurisdiction is restricted to the income repatriated to such tax jurisdiction, as in the case of Singapore, the treaty protection must remain confined to the amount which is actually subjected to tax. Any other approach could result in a situation in which an income, which is not subject matter of taxation in the residence jurisdiction, will anyway be available for treaty protection in the source country. It is in this background that the scope of LOB provision in Article 24 needs to be appreciated."

Under the circumstances, in our opinion, Assessing Officer and the Commissioner committed serious error in passing the impugned orders. Before closing, we may briefly touch on one more aspect sought to be raised by the Revenue viz. of the actual tax being paid by the assessee on such income at Singapore. On the ground that such income is exempt from payment of tax, the Revenue desired to impose tax in India. In this context, the petitioner has relied on the decision of Delhi High

APL Co. Pte. Ltd., ITA no.449/Mum./2017 Court in case of Emirates Shipping Line, FZE (supra), in which it was held that the assessee, a UAE based shipping company, whose income from such business was exempt from tax in such country, would still not be liable to pay tax in India by virtue of Article 8 of the DTAA between the said two countries. It was held that a person does not have to actually pay taxes in other country to be entitled to benefit of DTAA. We may notice that a somewhat similar issue came up before this Court in case of Director of Income-Tax (International Taxation) v. Venkatesh Karrier Ltd. reported in 349 ITR -124, in which the Court observed as under:

"10.After taking into consideration the above circulars issued by the Board and also the provisions contained in Article 8 of the DTAA, we find that both the Tribunal below and the CIT [Appeals] rightly held that in such a situation, the owner of the ship being admittedly a resident of UAE, there was no scope of taxing the income of the ship in any of the ports in India. The agreement between the two countries has ousted the jurisdiction of the taxing officers in India to tax the profits derived by the enterprise once it is found that the ship belongs to a resident of the other contracting country

APL Co. Pte. Ltd., ITA no.449/Mum./2017 and such position has also been clarified by the Circulars issued by the Board as indicated above."

In the present case, however, we are not inclined to conclude this issue since this was not even a ground on which either the Assessing Officer or the Commissioner has refused to grant the benefit to the petitioner. It is a ground sought to be raised for the first time before us by the Revenue, for which, neither full factual evidence, nor legal foundation is laid. We leave such an issue open to be decided in the appropriate case.”

The aforesaid judgment of Hon'ble Gujarat High Court clearly clinches the issue in favour of the assessee, wherein the Hon‟ble High Court has categorically held that the shipping income is not taxable in Singapore on the basis of remittance, but on accrual basis and, therefore, para 1 of Article 24 would not be applicable. Here, in this case also, the Hon‟ble Court has heavily relied upon the confirmation letter/Certificate issued by IRAS which confirmed the taxability of global shipping income in Singapore on accrual basis. Their Lordships have also referred to the Rajkot Bench of the Tribunal in the case of Alabra Shipping Pte Ltd., (supra), which also lays down the same

APL Co. Pte. Ltd., ITA no.449/Mum./2017 proposition. Thus, the conclusion and finding of Ld. CIT (A) stands negated by these decisions and same is rejected. Further in light of the Hon‟ble High Court judgment, the reliance on the decision in DIT(IT) vs. Thoresen Chartering Singapore (Pte.) Ltd.(supra) as heavily relied upon by ld. CIT (A) and Ld. CIT DR, no longer holds good.”

APL Co. Pte. Ltd., ITA no.449/Mum./2017 on the ground that assessee had not been able to state as to why the addition evidence was not filed before the assessing officer. In this regard Ld. Counsel submitted that the addition evidence, that the DRP mentioning is a letter /confirmation/certificate from the IRAS (Inland Revenue Authority of Singapore) which clarified the assessee position for the impugned assessment year in the same manner as mentioned in the tribunal’s orders above. Ld. Counsel submitted that this certificate/confirmation from IRAS could be obtained from the concerned authority only after the date of the assessing officer orders. However, a similar earlier letter was dully shown to the assessing officer, however the A.O. did not dwell upon on this aspect. Hence Ld. Counsel submitted that there was reasonable cause for not submitting the additional evidence before the A.O.

APL Co. Pte. Ltd., ITA no.449/Mum./2017 15. We also agree that there was reasonable cause for the same not being submitted before the A.O., as it was obtained after the date of AO’s orders. Hence in our consider opinion interest of justice will be served if the aforesaid additional evidence is admitted and matter is remitted to the file of the A.O to consider the issue afresh in the light of the aforesaid document and the tribunal’s order as mentioned above. Needles to add assesses should be granted adequate opportunity of being heard.

In ground no. 3 assessee has raised objection which are without prejudice to ground no. 1 and 2. Since we have already remitted ground no. 1 and 2 to the file of the A.O, adjudication upon ground no. 3 has not been emphasized by the parties before us. However we find that the said issue will arise only after the adjudication of ground no. 1 and 2. Assessee is at liberty to raise the same again if it deems it appropriate.

On this issue Ld. Counsel of the assessee submitted that in Article 8 of the Double Taxation Avoidance Agreement with Singapore this ground will become redundant. Accordingly in view of APL Co. Pte. Ltd., ITA no.449/Mum./2017 the above we are not adjudicating this issue and hold that become infructuous.

On this issue Ld. Counsel of the assessee submitted that this issue in squarely covered in favour of the assessee by the earlier decision of the tribunal in assessee own case in which the tribunal had followed Hon’ble Bombay High Court decision. Per contra Ld. DR did not dispute this proposition. Hence we decide this issue in favour of assessee.

Order pronounced in the Open Court on 28.04.2017