Direcator of Income Tax (International Taxation), V. M/s Trimex International FZE, UAE.

ITTA/359/2013

AI Insights

This case involves an appeal against the judgment and order of the Income Tax Appellate Tribunal, Visakhapatnam Bench, which confirmed the order of the Commissioner of Income Tax (Appeals) regarding the jurisdiction of the Assessing Officer under Section 147 of the Income Tax Act. The appellant contested the applicability of Section 147 in respect of orders passed under Section 172 of the Act and challenged the ITAT's reliance on a Mumbai Bench decision while ignoring a relevant Delhi High Court judgment. The High Court found that the ITAT had not considered the Delhi High Court's decision, which was crucial for resolving the dispute, and thus remanded the matter for a fresh examination.

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 719089 (HC-ANDHRA_PRADESH)
• Appeal Type: Others
• Pronouncement Date: 19-09-2013
• Assessment Year: misc
• Other Referred Cases: Emirates Shipping Line, FZE v. Assistant Director of Income Tax, South India Corporation (55 ITD 1)
• Laws Referred To: Income Tax Act
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Assessee Lawyers: B SARMA
• Keywords: Assessment Year; Change of opinion; Income Tax; Jurisdiction; Re-opening of assessment; UAE; DTDA
• Section: 147; 172

Judgement Text

"THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE H0N’BLE SRI JUSTICE K.C.BHANU I.T.T.A. No. 359 OF 2013 JUDGMENT: (Per the Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta) This appeal is preferred against the judgment and order dated 08.11.2012 of the learned Income Tax Appellate Tribunal, Visakhapatnam Bench, Visakhapatnam, in I.T.A. No.342/Vizag/2011, in relation to assessment year 2004-2005. 2. On 23.08.2013, we issued a notice before admission to the respondent. On 13.09.2013, learned counsel for the respondent, recording his appearance, took adjournment for filing counter affidavit. Today, he does not appear for respondent. Hence, we proceed to admit the appeal, after hearing Mr. B.Narasimha Sarma, learned counsel for the appellant, on the following substantial questions of law. “1) In the facts and circumstances of the case, whether the Tribunal (ITAT) is justified in law in confirming the order of the learned Commissioner of Income Tax (Appeals) that the Assessing Officer jurisdiction under Section 147 of the Act on mere change of opinion and Section 147 of the Act has no applicability in respect of the orders passed under Section 172 of the Act ? 2) In the facts and circumstances of the case, whether the Tribunal (ITAT) is justified in law in relying on the decision of the Tribunal (ITAT) Mumbai Bench in the case of South India Corporation (55 ITD 1) ignoring the Delhi High Court Judgment in the case of Emirates Shipping Lin, FZE Vs. Asst. Director of Income Tax (2012) 211 Taxman 82 which squarely covered the issue of powers of assessing officer with regard to re-opening of assessment ? 3) In the facts and circumstances of the case, whether the Tribunal (ITAT) is justified in not adjudicating the issue of relief under Article 8 of DTDA with UAE ? 3. None appears for the respondent to argue the matter. We have gone through the judgment and order of the learned Tribunal. It appears to us that the learned Tribunal had no chance to consider the Division Bench decision of the Delhi Court reported in case of Emirates Shipping Line, FZE v. Assistant Director of Income Tax[1]. According to us, this judgment has got relevancy in the issue involved in this case. We, therefore, remand the matter to the learned Tribunal for fresh enquiry keeping operation of the impugned judgment and order of the learned Tribunal in abeyance. The learned Tribunal is directed to pass independent judgment and order considering the decision of the Delhi High Court referred to above, by us and after hearing the learned counsel for the parties, without being influenced by the earlier judgment and order. In the process, the conclusion that may be arrived at, by the learned Tribunal in the impugned judgment and order may be same or may not be the same. The entire exercise shall be completed within a period of two months from the date of communication of this Judgment. 4. The Appeal is, accordingly, disposed of. No order as to costs. Miscellaneous petitions, if any, pending in this appeal shall stand closed. _____________________ K.J. SENGUPTA, CJ _______________ K.C.BHANU, J 19.09.2013 DRK/HSD THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE H0N’BLE SRI JUSTICE K.C.BHANU I.T.T.A. No. 359 OF 2013 (Per the Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta) 19.09.2013 [1] (2012) 349 ITR 0493 "