HEMA MARINE SERVICES P. LTD, MUMBAI V. ITO WD 6(3)(4), MUMBAI

ITA 1439/MUM/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2054 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 10-12-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 20-02-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K MOHANDA S
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES H, MUMBAI BEFORE SHRI JASON P. BOAZ (AM) AND SHRI AMIT SHUKLA (JM) ITA NO.1439/MUM/2013 ASSESSMENT YEAR: 2005-06 HEMA MARINE SERVICES PVT. LTD. 3-A, ANURAG, JHU TARA ROAD, SANTAYACRUZ(WEST), MUMBAI- 400009. PAN : A BAPM4719K VS. THE ITO WARD 6(3)-4 AAYAKAR BHAVAN, MUMBAI- 400020. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI. NONE RESPONDENT BY : SHRI. K. MOHAN DAS DATE OF HEARING: 10/12/2015 DATE OF PRONOUNCEMENT: 11/12/2015 O R D E R PER JASON P. BOAZ, AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINS T THE ORDER OF THE CIT(APPEALS)-12, MUMBAI DT. 01/11/2012 FOR ASST. YE AR 2005-06. 2. THE FACTS OF THE CASE, BRIEFLY, ARE AS UNDER:- 2.1 THE ASSESSEE A COMPANY ENGAGED IN FREIGHT FORW ARDING AND AGENCY SERVICES, FILED ITS RETURN FOR ASST. YEAR 20 05-06 ON 24/10/2005 DECLARING TOTAL INCOME OF RS. 13,61,176/-. THE ASSE SSMENT WAS COMPLETED U/S 143(3) OF THE INCOME TAX ACT,1961 (IN SHORT THE ACT), WHEREIN THE INCOME OF THE ASSESSEE WAS DETERMINED A T RS. 1,26,55,950/-, INTER-ALIA , MAKING DISALLOWANCE OF RS. 99,31,847/- U/S 40(A)(IA) OF THE ACT FOR NON DEDUCTION OF TDS. ON A PPEAL, THE CIT(A) ALLOWED THE ASSESSEE RELIEF OF RS. 82,61,647/-. ON FURTHER APPEAL BY REVENUE, THE CO-ORDINATE BENCH OF THE ITAT, MUMBAI BENCH IN ITS 2 ITA NO.1439/MUM/2013 ASSESSMENT YEAR: 2005-06 ORDER IN ITA NO. 6702/MUM/2008 DT. 03/03/2010 SET A SIDE TO THE FILE OF THE ASSESSING OFFICER (AO) THE ISSUE ON WHICH THE LD. CIT(A) HAD ALLOWED RELIEF TO THE ASSESSEE FOR FRESH EXAMINATI ON AND ADJUDICATION AFTER ALLOWING THE ASSESSEE OPPORTUNITY TO FURNISH DETAILS IN THIS REGARD. 2.2 IN THE SECOND ROUND, PURSUANT TO THE DIRECTION IN THE TRIBUNALS ORDER, THE ASSESSMENT WAS COMPLETED U/S 143(3) R.W. S. 254 OF THE ACT, WHEREIN, THE ASSESSEES INCOME WAS DETERMINED RS. 1 ,02,37,180/- IN VIEW OF THE DISALLOWANCE OF AT RS. 82,61,647/- U/S 40(A)(IA) OF THE ACT FOR NON DEDUCTION OF TAX. ON APPEAL, THE CIT(A)-12, MUMBAI DISMISSED THE ASSESSEES APPEAL VIDE ORDER DT. 01/11/2012. 3. AGGRIEVED BY THE ORDER OF THE CIT(A)-12, MUMBA I DT. 01/11/2012 FOR ASST. YEAR 2005-06, THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE US RAISING THE FOLLOWING GROUNDS:- 1 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LEARNED ERRED IN CONFIRMING THE ADDITION OF RS. 82,61,647/- MADE BY THE A.O U/S 40(A)(IA), BY HOLDING THAT THE AMOUNT REPRESENT ED FREIGHT PAYMENT ON WHICH TDS PROVISIONS ARE APPLICABLE AND IGNORING THE FACTS THAT INCOME OF THE FOREIGN SHIPPING COMPANY ( NDS) IS NOT ASSESSABLE IN INDIA AND THUS, TDS PROVISIONS ARE NO T APPLICABLE FOR SUCH PAYMENTS. 2. THE APPELLANT PRAYS THAT THE ORDER OF LEARNED CI T(A) ON THE ABOVE GROUNDS IS NOT BASES ON FACTS AND LEGAL POSITION AN D THUS, TO BE SET ASIDE. 3. THE APPELLANT CRAVES, LEAVE TO ADD/AMEND OR ALT ER ANY GROUND OR ADD A NEW GROUND WHICH MAY BE NECESSARY.) 4. AFTER VARIOUS OPPORTUNITIES BEING GIVEN TO THE ASSE SSEE, THE LD. AR FOR THE ASSESSEE APPEARED ONLY ONCE ON 02/09 /2015 AND SOUGHT ADJOURNMENT OF THE HEARING. IN THE SUBSEQUEN T THREE 3 ITA NO.1439/MUM/2013 ASSESSMENT YEAR: 2005-06 HEARINGS, AGAIN NONE APPEARED ON BEHALF OF THE ASSE SSEE. EVEN RPAD LETTER SENT WAS RETURNED BACK. IN THESE CIRCU MSTANCES, WE PROCEED TO DISPOSE OFF THE APPEAL WITH THE HELP OF THE LD DR AND THE MATERIAL ON RECORD. 5. AFTER CONSIDERING THE SUBMISSIONS MADE BY THE LD DR FOR REVENUE AND THE MATERIAL ON RECORD, WE FIND THAT TH E ASSESSEE HAS BEEN UNABLE TO REBUT THE FINDINGS OF THE AUTHORITIE S BELOW THAT IT WAS LIABLE TO DEDUCT TAX AT SOURCE ON THE AMOUNT OF RS. 82,61,647/- REMITTED TO THE PRINCIPAL, NILE DUTCH A FRICA LINES (NDL) AND FAILURE TO DO SO ATTRACTED THE DISALL OWANCE OF THE SAME IN ACCORDANCE WITH THE PROVISIONS OF SECTION 4 0(A)(IA) OF THE ACT. FINDING NO INFIRMITY IN THE IMPUGNED ORDER OF THE LD CIT(A), WE DO NOT SEE ANY REASON TO DEVIATE FROM THE FINDIN G AS RECORDED BY THE LD CIT(A) AND ACCORDINGLY CONFIRM THE SAME. 6. IN THE RESULT, THE ASSESSES APPEAL FOR ASST . YEAR 2005-06 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON DECEMBER 11TH , 2015 SD/- SD/- ( AMIT SHUKLA ) (JASON P.BOAZ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED: 11/12/2015 PRAMILA 4 ITA NO.1439/MUM/2013 ASSESSMENT YEAR: 2005-06 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. !' , $ !'% , / DR, ITAT, MUMBAI 6. &'( / GUARD FILE. / BY ORDER, ) //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI