Director of Income Tax [International Taxation], V. M/s Trimex International FZE, UAE.

ITTA/495/2013

AI Insights

The case involves an appeal by the Director of Income Tax (International Taxation), Hyderabad against M/s. Trimex International FZE, UAE, concerning the assessment year 2007-08. The appeal was directed against the judgment and order of the ITAT, 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 main legal issues revolved around the applicability of Section 147 in respect of orders passed under Section 172 of the Act, and the interpretation of relief under Article 8 of the DTAA with UAE. The High Court found that the ITAT had not considered a relevant Delhi High Court decision, which could influence the outcome of the case, leading to the remand of the matter for a fresh assessment.

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 719071 (HC-ANDHRA_PRADESH)
• Appeal Type: Others
• Pronouncement Date: 07-11-2013
• Assessment Year: misc
• Other Referred Cases: Emirates Shipping Lin, FZE vs. Asst. Director of Income Tax (2012) 211 Taxman 82, South India Corporation (55 ITD 1)
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: HIGH COURT
• Assessee Lawyers: B SARMA
• Keywords: Assessment Year; Change of opinion; DTAA; Income Tax; International Taxation; UAE
• Section: 147; 172

Judgement Text

"IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR I.T.T.A. No. 495 of 2013 DATE: 07.11.2013 Between: Director of Income Tax (International Taxation), Hyderabad. … Appellant And M/s. Trimex International FZE, UAE, Rep., by Esskay Shipping Pvt., Ltd., Kakinada. … Respondent This Court made the following: THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR I.T.T.A. No. 495 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.343/Vizag/2011, in relation to assessment year 2007-08. On 24.10.2013, we issued notice to the respondent. Pursuant to the said order, the appellant – Department served notice on the respondent and filed memo, dated 06.11.2013, to that effect. In spite of service of notice, none appears for the 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 the 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 DTAA with UAE? 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 has no chance to consider the Divisional Bench decision of the Delhi High Court reported in case of Emirates Shipping Line, FZE vs. 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. 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 ____________________ SANJAY KUMAR, J Date: 07.11.2013 ES [1] (2012) 211 Taxman 82 "