STAR CRUISES (INDIA) TRAVEL SERVICES P.LTD, MUMBAI V. DDIT (IT) 2(1), MUMBAI

CO 109/MUM/2014

• Counselvise Citation: [2015] 123 COUNSELVISE.COM (IT) 1026 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 5 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 24-06-2015
• Appeal Filed By: Assessee
• Bench Allotted: E
• Next Hearing Date: 16-06-2015
• Assessment Year: 2013-2014
• Appeal Filed On: 19-05-2014
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIP
• Assessee Lawyers: VIPUL B JOSHI; SATISH KANODIA
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL E , BENCH MUMBAI . . , , BEFORE SHRI R.C.SHARMA , A M & SHRI SANJAY GARG , J M ./ ITA NO . 1809 - 1811 / MUM/20 1 3 ( / ASSESSMENT YEAR S : 20 09 - 10, 2012 - 13 & 2013 - 14 ) DDIT(IT) - 2(1), MUMBAI VS. M/S STAR CRUISE MANAGEMENT LTD., SEKHRI KANODIA & ASSOCIATES, CAL, G - 15 , EVEREST, TARDEO ROAD, MUMBAI - 400034 ./ ./ PAN/GIR NO . : AA HCS 0352 F ( / APPELLANT ) .. ( / RESPONDENT ) AND CROSS OBJECTION NO S . 96, 108 & 109 / MUM/20 1 4 ( / ASSESSMENT YEARS :2009 - 10, 2012 - 13 & 2013 - 14 ) M/S STAR CRUISE MANAGEMENT LTD., SEKHRI KANODIA & ASSOCIATES, CAL, G - 15, E VEREST, TARDEO ROAD, MUMBAI - 400034 VS. DDIT(IT) - 2(1), MUMBAI ./ ./ PAN/GIR NO. : AAHCS 0352 F ( / APPELLANT ) .. ( / RESPONDENT ) /REVENUE BY : SHRI NEIL PHILIP /ASSESSEE BY : SHRI VIPUL B. JOSHI & SHRI SATISH KANODIA / DATE OF HEARING : 16/06 / 2015 / DATE OF PRONOUNCEMENT 24 /06 /2015 / O R D E R PER R.C.SHARMA (A.M) : TH ESE ARE THE APPEALS FILED BY THE REVENUE AND CROSS O BJECTION BY THE ASSESSEE AGAINST THE ORDER OF CIT(A), FOR THE ASSESSMENT YEARS 2009 - ITA NO S . 1809 - 1811/13 &CO, 96,108 - 109/14 2 10, 2012 - 13 & 2013 - 2014, RESPECTIVELY IN THE MATTER ORDER PASSED U/S. 143(3) OF THE IT ACT. 2. COMMON GROUNDS HAVE BEEN TAKEN BY THE REVENUE FOR ALL THE YEARS UNDER CONSIDE RATION. GROUNDS TAKEN FOR THE ASSESSMENT YEAR 2009 - 2010 READS AS UNDER : - 1 ) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN HOLDING THAT THERE IS NO BUSINESS CONNECTION BETWEEN THE INDIAN COMPANY AND THE FOREIGN COMPANY AS CONTEMPLATED IN SEC.9(1)(I) OF THE ACT AND NO INCOME ACCRUES/ARISES OR IS DEEMED TO ACCRUES/ARISES IN INDIA OUT OF SALES PROCEEDS OF CRUISE TICKETS BOOKED BY ITS INDIAN AGENTM/S STAR CRUISES (INDIA) TRAVEL SERVICES PVT. LTD. 2. THE APPELLANT PRAYS THAT TH E ORDER OF LD. CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFICER RESTORED. 3 . RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. FACTS IN BRIEF ARE THAT M/S STAR CRUISES (INDIA) TRAVEL SERVICES PVT. LTD. (INDIAN COMPANY) IS EN GAGED IN THE CANVASSING BUSINESS OF TRAVEL AND TOUR RELATED SERVICES. IT HAS ENTERED INTO A CANVASER AGENT AGREEMENT DATED 1 ST MARCH 2005 WITH M/S STAR CRUISE MANAGEMENT COMPANY. ISLE OF MAN (THE ASSESSEE FOREIGN COMPANY/SCML) FOR MAINLY CANVASSING THEIR C RUISE IN INDIA FOR AN AGREED REMUNERATION. THE ASSESSEE COMPANY CLAIMED THAT THE SALE PROCEEDS OF THE CRUISE TICKETS BEING REMITTED TO IT BY ITS INDIAN AGENT M/S SCITS IS NOT LIABLE TO TAX IN INDIA. HOWEVER, THE ASSESSING OFFICER HAS TREATED SCITS AS THE A GENT OF SCML AND ESTIMATED THE INCOME ACCRUING TOWARDS THE OPERATIONS CARRIED OUT IN INDIA OF SCML @5% OF THE CRUISE COLLECTIONS REMITTED FROM INDIA. THE ASSESSING OFFICER ACCORDINGLY, PASSED THE ORDER U/S.143(3) DATED 7 DECEMBER 2011 AND DIRECTED THAT SCM L TO BE LIABLE TO TAX. ITA NO S . 1809 - 1811/13 &CO, 96,108 - 109/14 3 4 . BY THE IMPUGNED ORDER, THE CIT(A) BY FOLLOWING THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE HELD THAT THERE IS NO BUSINESS CONNECTION BETWEEN INDIAN COMPANY AND FOREIGN COMPANY AS CONTEMPLATED U/S.9(1)(I) OF THE ACT. THE PREC ISE OBSERVATION OF THE CIT(A) IS AS UNDER : - 4. I HAVE CONSIDERED THE ARS ARGUMENT AND HAVE ALSO PERUSED THE RECORDS. THE SUBJECT MATTER OF THE ABOVE APPEAL IS ARISING OUT OF ORDER U/S 195 FOR A Y 2009 - 10. THE APPEAL AGAINST THE ORDER V/S 195 FOR A Y 2009 - 10 HAS BEEN DECIDED BY MY PREDECESSOR IN THE CONSOLIDATED ORDER OF APPEAL NO CIT(A) - IL/LT - 73/ RG.2(1)/07 - 08/72 - S., DATED 24TH FEBRUARY 2010 WHERE ALL ISSUES, AND THE GSA AND CANVASSER AGREEMENTS ARE DISCUSSED IN DETAIL. NO FRESH FACTS HAVE BEEN BROUGHT ON RECORDS AND NOR HAVE ANY FRESH ARGUMENTS BEEN RAISED BY THE ASSESSING OFFICER AND FURTHER AND THE PREDECESSOR'S ORDER IS UPHELD BY THE HON'BLE ITAT VIDE CONSOLIDATED ORDER DATED 22 JULY 2011 IN ITANO.~941/MUM/2010 FOR AY 2006 - 07,ITA NO.3943/MUM/2010 FOR A .Y.2007 - 08, ITA NO.3945/MUM/2010 FOR A.Y. 2008 - 09, ITA NO.3942 /MUM/2010 FOR A.Y. 2009 - 10 AND ITA NO. 3802/MUM/2010 FOR A.Y.2010 - 11. ACCORDINGLY FOR THE DETAIL REASONS MENTIONED IN THE CONSOLIDATED ORDER FOR AY 2006 - 07 TO 2010 - 11 DATED 24.2.2010 PASSED AGA INST ORDERS U/S 195 IN THE CASE OF (INDIA) TRAVEL SERVICES PVT. LTD, HOLD THAT THERE IS NO BUSINESS CONNECTION BETWEEN INDIAN C OMPANY AND F OREIGN C OMPANY AS CONTEMPLATED U/S.9(1)(I) OF THE ACT. 4.1 IN VIEW OF THE FOREGOING THE ORDER OF THE ASSESSING OFFIC ER FOR TDS BY APPELLANT ON SALE PROCEEDS OF CRUISE TICKETS BOOKED BY THE VARIOUS TRAVEL AGENTS IS NOT JUSTIFIED. GROUNDS 1 TO 7 OF THE APPEAL ARE ALLOWED. AGAINST THE ABOVE ORDER OF CIT(A), THE REVENUE IS IN APPEALS BEFORE US. 5 . WE HAVE CONSIDERED RIVAL CONTENTIONS AND FOUND THAT THE ISSUE UNDER CONSIDERATION HAS CONSISTENTLY BEEN DECIDED BY THE TRIBUNAL IN ASSESSEES OWN FAVOUR IN ASSESSEES OWN CASE AND IT WAS HELD THAT NO INCOME ACCRUES OR ARISES TO THE ASSESSEE IN INDIA RESPECT OF BOOKING OR SALE OF TICKETS FOR TOUR PACKAGES OF THE CRUISES IN INDIA. THE ORDER OF THE TRIBUNAL FOR THE ASSESSMENT YEAR 2001 - 02 & 2002 - 03, PASSED IN ITA NOS.4973/MUM/2005 & ITA NO S . 1809 - 1811/13 &CO, 96,108 - 109/14 4 6497/MUM/2006, DATED 21 - 12 - 2009 AND THE ORDER OF TRIBUNAL FOR A.Y.2005 - 06, DATED 23 - 12 - 2010 WAS ALSO P LACED ON RECORD. 6 . LD. DR FAIRLY CONCEDED THAT THE ISSUE HAS BEEN CONSISTENTLY DECIDED BY THE TRIBUNAL IN ASSESSEES FAVOUR BY DISMISSING THE REVENUES APPEAL. 7 . IN VIEW OF THE ABOVE, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF CIT(A) FOR ALL OWING THE ASSESSEES APPEAL BY FOLLOWING THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE. 8 . THE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE JUST IN SUPPORT OF THE ORDER PASSED BY THE CIT(A). AS WE HAVE ALREADY UPHELD THE ORDER OF CIT(A), THEREFORE, THE C ROSS OBJECTIONS FILED BY THE ASSESSEE HAVE BECOME INFRUCTUOUS. 9 . IN THE RESULT, APPEAL S OF THE REVENUE AS WELL AS CROSS OBJECTIONS OF THE ASSESSEE ARE DISMISSED . O RDER PRONOUNCED IN THE OPEN COURT ON THIS 24 /06 / 201 5 . SD/ - SD/ - ( ) ( SANJAY GARG ) ( . . ) ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 24 /06 /201 5 . . /PKM , . / PS / COPY O F THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY//