ASST CIT (IT) 4(2)(1), MUMBAI V. SUPERSTAR LIBRA LTD, MUMBAI

ITA 1482/MUM/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7151 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-05-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 16-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V JUSTIN DR
• Keywords: Business income; Question of law
• Section: 43B; 143(3); 28

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI , . . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER ITA NO.1482/MUM/2016 ASSESSMENT YEAR: 2008-09 ACIT(IT)-4(2)(2), SCINIDIA HOUSE, BALLARD PIER, N. M. ROAD, MUMBAI-400038 / VS. M/S SUPERSTAR LIBRA LTD. C/O-SEKHRI KANODIA & ASSOCIATES, CHARTERED ACCOUNTANTS, G-15 EVEREST, TARDEO RAOD, MUMBAI-400034 ( ' / REVENUE) ( #$ % /ASSESSEE) P.A. NO. AAJCS1630G ' / REVENUE BY SHRI V. JUSTIN-DR #$ % / ASSESSEE BY SHRI VIPUL JOSHI & ' ' % ( / DATE OF HEARING : 24/05/2018 ' % ( / DATE OF ORDER: 24/05/2018 SUPERSTAR LIBRA LTD.. ITA NO.1482/MUM/2016 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 30/11/2015 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI, IN HOLDING THAT THE ASSESSEE IS ENGAGED IN THE BUSINES S OF OPERATION OF SHIPS AND THUS ENTITLED TO BE ASSESSED U/S 44B OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT), WITHOUT APPRECIATING THE FACT THAT THE BUSINESS ACTIVITY OF THE ASSESSEE WAS PRIMARILY PROVIDING HOSPITALITY AND ENTERTAINMENT ON BOARD ON CRUISE SHIP AND NOT THAT OF MERE TRANSPORTATION OF PASSENGERS. 2. DURING HEARING, AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE, SHRI VIPUL JOSHI, CLAIMED THAT THE IS SUE IN HAND IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DE CISION OF THE TRIBUNAL FOR ASSESSMENT YEAR 2006-07, 2007-08 A ND 2008-09 AND ALSO FROM HON'BLE BOMBAY HIGH COURT IN THE CASE OF ASSESSEE ITSELF (ITA NO.451 OF 2012), ORDER DATED 07/08/2014. THIS FACTUAL MATRIX WAS NOT CONTROVERTE D BY THE LD. DR, SHRI V. JUSTIN. SUPERSTAR LIBRA LTD.. ITA NO.1482/MUM/2016 3 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN VIEW O F THE ABOVE, WE ARE REPRODUCING HEREUNDER THE RELEVANT PO RTION FROM THE AFORESAID ORDER OF THE TRIBUNAL DATED 22/0 7/2011 (ITA NO.3944/MUM/2010) FOR ASSESSMENT YEAR 2006-07 FOR READY REFERENCE AND ANALYSIS:- 1. BY WAY OF THIS APPEAL, THE ASSESSING OFFICER HA S CHALLENGED CORRECTNESS OF CIT(A)S ORDER DATED 24TH FEBRUARY 2010, IN THE MATTER OF ASSESSMENT UNDER SE CTION 143(3) OF THE INCOME TAX ACT, 1961, FOR THE ASSESSM ENT YEAR 2006-07. 2. GRIEVANCE OF THE ASSESSING OFFICER IS AGAINST CI T(A)S CHARACTERIZING THE INCOME OF THE ASSESSEE, FROM OPE RATING SHIP CRUISE INDIA, AS SHIPPING BUSINESS INCOME FO R THE PURPOSES OF SECTION 44B OF THE ACT, AND SIGNIFICANC E OF THE INCOME CHARACTERIZATION LIES IN THE FACT THAT THE S HIPPING BUSINESS INCOME OF A NON-RESIDENT ASSESSEE IN INDIA , AS IS THE CASE BEFORE US, IS TAXABLE ON PRESUMPTIVE BASIS AT THE RATE OF 7.5% ON GROSS BASIS, AS AGAINST TAXATION OF BUSINESS INCOME, ON NET BASIS, AT THE NORMAL TAX RA TES. 3. BRIEFLY STATED, RELEVANT MATERIAL FACTS ARE LIKE THIS. THE ASSESSEE IS A BERMUDA BASED COMPANY AND IS ENGAGED THE BUSINESS OF, INTER ALIA, OPERATING SHIP CRUISE IN INDIA. THERE IS NO DISPUTE ABOUT TAXABILITY OF ITS INCOME FROM THESE CRUISE OPERATIONS IN INDIA. THE CRUISE SHIPS HAVE OPERATED IN INDIAN WATERS AND THE RELATED BUSINESS IS CONDUCTED IN INDIA. THE CRUISE IN RESPECT OF WHICH THIS DISPUTE ARISES ARE (A) SINGLE POINT CRUISE TO THE M UMBAI HIGH SEA AND BACK (DURATION : TWO DAYS AND ONE NIGH T); (B) MULTI DAY CRUISE MUMBAI- GOA- MUMBAI (DURATION: THREE DAYS AND TWO NIGHTS); AND (C) MULTI DAY CRUIS E MUMBAILAKSHADEEP-MUMBAI (DURATION FIVE DAYS AND FO UR NIGHTS). ON THESE FACTS, THE ASSESSING OFFICER, REL YING UPON OBSERVATIONS MADE BY THE ASSESSING OFFICER IN SUPERSTAR LIBRA LTD.. ITA NO.1482/MUM/2016 4 PROCEEDINGS REGARDING ASCERTAINMENT OF TAX WITHHOLD ING LIABILITY BY INDIA BASED SALES AGENT OF THE ASSESSE E, HELD THAT THE PROVISIONS OF SECTION 44B OF THE ACT DONOT APPLY TO THE ASSESSEE, AND TAX IN TO BE LEVIED, ON NORMAL RATES, ON NET BASIS. THE ASSESSING OFFICER WAS OF THE VIEW THAT THESE CRUISE SHIPS DONOT TRANSPORT PEOPLE FROM ONE PLACE TO ANOTHER, AS THE CRUISE IS FOR THE PURPOSE OF ENTERTAINMENT RATHER THAN FOR THE PURPOSE OF JOURNE Y, AND THE PLACE OF DISEMBARKATION IS THE SAME AS THE PLAC E OF EMBARKATION. IT WAS ALSO NOTED THAT EVEN IN THE C ASE OF CRUISES TOUCHING GOA OR LAKSHDEEP, THE FARE CHARGED IS FOR TAKING THE PASSENGERS FROM AND TO MUMBAI PORT, EVEN IF A PERSON DISEMBARKED IN BETWEEN AND ACCORDINGLY, IT CANNOT BE ARGUED THAT THE SHIP TRANSPORT PEOPLE FRO M ONE PLACE TO ANOTHER. THE ASSESSING OFFICER WAS THUS O F THE VIEW THAT THE CRUISE IS ONLY FOR THE PURPOSE OF ONB OARD ENTERTAINMENT. HE WAS ALSO OF THE VIEW THAT SECTION 44B OF THE ACT, PROVIDING FOR TAXATION ON GROSS BASIS @ 7.5% OF RECEIPTS, COMES INTO PLAY ONLY WHEN SHIPS ARE US ED FOR CARRYING PASSENGERS, LIVESTOCK, MAIL OR GOODS FROM ONE PORT TO ANOTHER. HE THUS DECLINED THE APPLICATION O F SECTION 44B OF THE ACT TO THE INCOME FROM INLAND CR UISE OPERATIONS, AND, IN THE ABSENCE OF DETAILS OF EXPEN SES HAVING BEEN FURNISHED TO THE ASSESSING OFFICER, CON CLUDED THAT PROFITS OF THE ASSESSEE , IN RESPECT OF INDIAN CRUISE OPERATIONS, CAN BE ESTIMATED @ 25% OF GROSS RECEIPT S ON WHICH 41.82% TAX WAS APPLIED. AGGRIEVED, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A) WHO HELD THAT THE PROVISIONS OF SECTION 44 B ARE APPLICABLE ON THE FACTS OF THIS CASE, AND, ACCORDINGLY, TAX @ 41.82 I S TO BE LEVIED ON 7.5% OF THE AMOUNT RECEIVED OR RECEIVABLE FOR SUCH CRUISE OPERATIONS. THE ASSESSING OFFICER IS AG GRIEVED OF THE RELIEF SO GRANTED BY THE CIT(A) AND IS IN AP PEAL BEFORE US. AS EVIDENT FROM THESE FACTS, THE SHORT P OINT OF DISPUTE IS THE MANNER IN WHICH THE INCOME FROM THES E OPERATIONS IS TO BE TAXED ON GROSS BASIS UNDER TH E PROVISIONS OF SECTION 44B OF THE ACT, WHICH PROVIDE S THAT 7.5% OF PASSAGE COSTS ARE TO BE TREATED AS INCOME, OR ON NET BASIS AS PER THE PROVISIONS OF THE INDIAN INCOM E TAX ACT. 4. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTUAL MATR IX OF THE CASE AS ALSO THE APPLICABLE LEGAL POSITION. SUPERSTAR LIBRA LTD.. ITA NO.1482/MUM/2016 5 5. THE ISSUE IN APPEAL IS NO LONGER RES INTEGRA. WE FIND THAT THE ASSESSING OFFICERS GRIEVANCES AGAINST THE FINDINGS OF THE CIT(A), IN THE COURSE OF ASCERTAINM ENT OF TAX WITHHOLDING LIABILITY FROM REMITTANCE OF CRUISE PACKAGE BY ASSESSEES INDIA BASED AGENT TO THE ASSESSEE, HA VE BEEN REJECTED BY A COORDINATE BENCH OF THIS TRIBUNA L. WHILE DOING SO, THE COORDINATE BENCH, VIDE ORDER DA TED 1ST JULY 2009 ,HAS HELD AS FOLLOWS: 5. ON A CAREFUL CONSIDERATION OF THE FACTS AND CIRC UMSTANCES OF THE CASE AND ON PERUSAL OF RECORDS WE HOLD AS FO LLOWS: 5.1 THE FIRST APPELLATE AUTHORITY AFTER CONSIDERING THE DETAILED ARGUMENTS OF THE ASSESSEE, HAS AT PARAGRAPH 2.8 ON PAGE 7 OBSERVED AS FOLLOWS: 2.8 PRE-REQUISITE CONDITIONS FOR APPLICATION OF SE CTION 44B ARE THAT THE ASSESSEE SHOULD BE A NON-RESIDENT AND SHOULD BE ENGAGED IN THE OPERATION OF SHIPS. THE AR HAS MENTI ONED THAT THE SUPERSTAR LIBRA SHIP IS OWNED BY SSRL AN D IS BEING OPERATED BY THEM. ACCORDINGLY THE FIRST TWO C ONDITIONS AS MENTIONED IN SE.44B(1) ARE SATISFIED BY SSRL, WH ICH ARE THAT A NON-RESIDENT COMPANY ENGAGED IN THE BUSINESS OF OPERATION OF SHIPS. THE AO HAS NOT DISPUTED THIS FA CT. REGARDING THE ISSUE OF CARRIAGE OF PASSENGERS, I HA VE EXAMINED THE ARGUMENT OF THE AO. IT IS INCORRECT TO HOLD THAT IN CASE OF ROUND TRIP EITHER BY TRAIN, SHIP OR AIRL INE WHERE THE PASSENGERS BOARD THE TRAIN, SHIP OR AIRCRAFT AT ONC E PLACE AND AFTER THE JOURNEY DISEMBARK AT THE SAME PLACE, THER E IS NO TRANSPORTATION INVOLVED. IT IS THEREFORE INCORRECT TO SAY THAT WHEN SSRL CARRIES PASSENGERS FROM MUMBAI TO LAKSHADWEEP OR AGAIN BRING THEM BACK TO MUMBAI, IT IS NOT CARRYING PASSENGERS. ON THE CONTRARY, THE SHIP IS C ARRYING PASSENGERS TO AND FROM MUMBAI TO LAKSHDWEEP AND RET URN TO MUMBAI. THE AR HAS EXPLAINED THAT BESIDES OFFERI NG RETURN TRIP CRUISES, SSRL IS ALSO OFFERING ONE WAY CRUISE FROM MUMBAI TO GOA ON VARIOUS DATES IN THE MONTH OF DECE MBER 2006 TO MAY 2007. FURTHER, IF AT ALL ROUND TRIP SHI P CRUISE IS TAKEN BY A PASSENGER SUCH PASSENGER IS ENTITLED TO DISEMBARK FROM THE SHIP AT INTERVENING PORTS. THERE IS NO RES TRICTION THAT SUCH PASSENGER OF ROUND TRIP SHIP CRUISE WILL DISEM BARK AT MUMBAI ONLY. AO IS THEREFORE NOT RIGHT IN HOLDING T HAT THERE IS NO CARRIAGE OF PASSENGERS, MERELY BECAUSE AS PER SOME OF THE CRUISE PROGRAMMES, PASSENGERS ARE PICKED UP FRO M MUMBAI AND AFTER THE CRUISE DISEMBARK AT MUMBAI. I AGREE WITH THE ARGUMENTS OF THE AR THAT IN SUCH CASES OF TO AND FRO JOURNEY, TWO CARRIAGES ARE INVOLVED OF CARRYING PAS SENGERS SUPERSTAR LIBRA LTD.. ITA NO.1482/MUM/2016 6 FROM STATION A TO B AND FROM B TO A. IT IS THEREFOR E HELD THAT THE SSRL IS ENGAGED IN THE CARRIAGE OF PASSENGERS. FINDINGS OF THE AO IN THIS REGARD ARE INCORRECT. 5.2 LATER, AT PARAGRAPH 2.10, THE FIRST APPELLATE A UTHORITY HAS OBSERVED AS FOLLOWS:- 2.10 I HAVE EXAMINED THE PAPERS FILED BY AR. VARIO US INTERNATIONAL AIRLINES ARE ALSO OFFERING ONBOARD ENTERTAINMENT AND OTHER FACILITIES FOR THE COMFORT OF THE PASSENGERS. SIMILARLY, SSRL HAS OFFERED VARIOUS TYP ES OF ENTERTAINMENTS, MEALS AND OTHER FACILITIES FOR THE USE OF ITS PASSENGERS TO PROVIDE THEM COMFORTABLE JOURNEY. IN MY VIEW IN THE ABSENCE OF ANY SEPARATE CHARGE FOR THESE SER VICES, IT IS TO BE HELD THAT THE PROVISION OF MEAL AND OTHER ENT ERTAINMENT, WHILE ON CRUSE, IS ONLY INCIDENTAL TO THE MAIN BUSI NESS ACTIVITY OF THE CRUISE. 5.3 FURTHER AT PARAGRAPH 2.14 HE OBSERVED AS FOLLOW S: 2.14 AR HAS ESTABLISHED BY THE BOOKING SLIPS THAT SSRL IS CHARGING THE PASSENGERS FOR THE CRUISE PAYMENT IN T HE FORM OF CABIN CHARGES AND FARE CHARGES WHICH ARE ALL REL ATED WITH THE TRANSPORTATION. THERE IS NO SEPARATE CHARGE FOR THE MEAL OR ENTERTAINMENT. IT IS TRUE THAT SOME OF THE ENTER TAINMENT PROGRAMMES ON THE BOARD MAY HAVE TO BE PAID BY THE PASSENGERS. NEVERTHELESS THE FACT REMAINS THAT SUCH ACTIVITIES ON BOARD ARE INCIDENTAL TO THE BUSINESS OF OPERATIO N OF SHIPS. ACCORDINGLY, IT IS HELD THAT THE SSRL, A COMPANY OR GANIZED IN BERMUDA, ENGAGED IN THE BUSINESS OF OPERATION OF SHIPS IS ENTITLED TO BE ASSESSED AS PER SECTION 44B. DIRECTI ON OF THE AO TO ESTIMATE THE INCOME AT 25% IS DELETED. THE AO IS DIRECTED TO ESTIMATE THE INCOME AT 7.5% OF THE GROS S CRUISE FARE RECEIPT AND DEDUCT TAX U/S.195 AT THE APPROPRI ATE TAX RATE ON SUCH INCOME. APPEAL ON GROUND NO.1 TO 8 IS ALLOW ED. 5.4 WE FULLY AGREE WITH THESE FINDINGS. THE INTERPR ETATION SOUGHT TO BE PLACED BY THE LEARNED AO IN HIS ORDER U/S.195 ON THE TERM CARRIAGE IS IMPROPER AND IS AGAINST THE SPIRIT OF THE SECTION. TO STATE THAT THE TERM IS NOT DEFINED BY THE ACT, AND THAT CARRYING MEANS TAKING OR TRANSPORTING FROM ONE PLACE TO ANOTHER, FROM ONE PORT TO ANOTHER IS A VER Y NARROW INTERPRETATION. THE FINDINGS OF THE CIT(A) IS IN LI NE WITH THE CIRCULAR OF THE CBDT NO.763 DATED 18.2.1996 WHEREAS PARAGRAPH 26.1 SECTION 44B IS DISCUSSED. IT HAS CLA RIFIED THAT THE AMOUNT PAID OR PAYABLE, ETC ON ACCOUNT OF CARRI AGE SHALL INCLUDE ANY CHARGES BY WAY OF DEMURRAGES OR HANDLIN G, ETC, SUPERSTAR LIBRA LTD.. ITA NO.1482/MUM/2016 7 OR BY WHATEVER NAME CALLED AND ANY OTHER CHARGES OF SIMILAR NATURE AND THAT SECTION 44B APPLIES TO THE SAME. SI MILARLY IN CIRCULAR NO.169 DT.23.6.1975 AT PARAGRAPHS 37 AND 3 8, IT IS PROVIDED THAT NEW SECTION 44B OVERRIDES PROVISIONS OF SECTION 28 TO 43B AND IT EXPLAINS THAT UNDER THE EXISTING L AW, TAXABLE PROFITS ON FOREIGN BUSINESS ENTERPRISES ARE DETERMI NED BY SUITABLY APPORTIONING THEIR GLOBAL PROFITS BETWEEN THEIR INDIAN BUSINESS AND FOREIGN BUSINESS OR ON THE BASI S OF VOYAGE ACCOUNTS. AS THERE ARE CERTAIN DIFFICULTIES AND COMPLICATIONS IN THIS ISSUE, WITH A VIEW OF SIMPLIF YING AND RATIONALIZING IN SUCH CASES, THE FINANCE ACT HAS MA DE A SPECIAL PROVISION IN THE FORM OF SECTION 44B OF THE ACT FOR COMPUTING PROFITS AND GAINS FROM SHIPPING BUSINESS IN THE CASE OF NON-RESIDENCE. SUITABLE AMENDMENTS WERE ALS O MADE IN SECTION 172 OF THE ACT. A PLAIN READING OF SECTI ON 44B SHOWS THAT FOR THE SECTION TO BE ATTRACTED, THE ASS ESSEE SHOULD BE A NON-RESIDENT AND SHOULD BE IN THE BUSINESS OF OPERATING OF SHIPS. AS THESE ESSENTIAL CONDITIONS HAVE TO BE FULFILLED IN THIS CASE, WE ARE OF THE HUMBLE OPINION THAT THE OR DER OF THE FIRST APPELLATE AUTHORITY HAS TO BE UPHELD. 6. THE VIEW SO TAKEN BY THE COORDINATE BENCH HAS NO W BEEN CONFIRMED BY HONBLE BOMBAY HIGH COURT AS WELL . REJECTING THE APPEAL FILED BY THE COMMISSIONER, AGA INST THE ORDER OF THE TRIBUNAL, THEIR LORDSHIPS HAVE, VI DE JUDGMENT DATED 1ST JULY 2011, INTER ALIA OBSERVED A S FOLLOWS: PERUSAL OF THE ORDER PASSED BY THE TRIBUNAL SHOWS T HAT IN THE PRESENT CASE, THE CRUISE CONDUCTED BY THE ASSESSEE CONSISTS OF TAKING THE PASSENGERS FROM MUMBAI TO VARIOUS PLACES AND BACK. THE TRIBUNAL HAS RECORDED A FINDING OF FACT T HAT THE ASSESSEE IS ALSO OFFERING ONE WAY CRUISE. THERE WAS NO RESTRICTION THAT A PASSENGER TAKING ROUND TRIP SHIP CRUISE SHOULD DISEMBARK AT MUMBAI ONLY. THE TRIBUNAL HAS H ELD THAT MERELY BECAUSE SOME ENTERTAINMENT PROGRAMMES W ERE MADE AVAILABLE ON THE BOARD THE CRUISE AND THE PASS ENGERS WERE REQUIRED TO PAY ADDITIONAL AMOUNT IN RESPECT T HEREOF, IT CANNOT BE SAID THAT THE ASSESSEE WAS NOT ENGAGED IN THE SHIPPING BUSINESS INVOLVING CARRIAGE OF PASSENGERS FROM MUMBAI AND BACK. THE TRIBUNAL HAS HELD THAT THE BUS INESS CARRIED ON BY THE ASSESSEE AS AGENT OF THE NON-RESI DENT CONSTITUTES SHIPPING BUSINESS AS CONTEMPLATED UNDER SECTION 44B OF THE ACT. 7. WE ARE IN RESPECTFUL AGREEMENT WITH THE CONCLUSI ONS SO ARRIVED AT THE COORDINATE BENCH, WHICH NOW STAND SUPERSTAR LIBRA LTD.. ITA NO.1482/MUM/2016 8 APPROVED BY HONBLE JURISDICTIONAL HIGH COURT. ONCE TAX WITHHOLDING LIABILITY IN RESPECT OF THE RELATED REM ITTANCES TO THE ASSESSEE STANDS QUASHED ON THE GROUND THAT S UCH A VICARIOUS LIABILITY DOES NOT SURVIVE BECAUSE THE AS SESSEE DID NOT HAVE PRINCIPAL LIABILITY TO TAX IN INDIA, T HIS ROUND OF PROCEEDINGS, IN ASSESSEES OWN CASE, IS ONLY A PARA LLEL, AND SOMEWHAT SUPERFLUOUS, EXERCISE, WHICH MUST MEET THE SAME FATE. WE, THEREFORE, HOLD THAT THE ASSESSE E DID NOT HAVE ANY TAX LIABILITY IN INDIA. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSING OFFICER IS DISMISSED. PRONOUNCED IN THE OPEN COURT TODAY ON_22ND DAY OF JULY, 2011. 2.2. WE ALSO FIND THAT THE AFORESAID ORDER OF THE TRIBUNAL WAS CARRIED IN APPEAL BEFORE THE HON'BLE H IGH COURT, WHEREIN, VIDE ORDER DATED 07/08/2014 (ITA NO .451 OF 2011), IT WAS HELD AS UNDER:- ' 1. WE HAVE PASSED BY THE ITAT, MUMBAI DATED 22ND JULY 2011 IN ITA NO.3944/MUM/2010 FOR THE A.Y. 2006-07. 2. WE FIND THAT THE TRIBUNAL IN THIS CASE HAS CONSIDER ED THE ASSESSEES GRIEVANCE WHILE CHALLENGING THE ORDER DA TED 24TH FEBRUARY, 2010 PASSED BY THE CIT(APPEALS). THE QUESTION PROJECTED AS SUBSTANTIAL QUESTION OF ALW A T PAGE-6 OF THE PAPER BOOK WAS ALSO RAISED IN THE CASE OF ST AR CRUISES (INDIA) PVT.LTD. AND IN RELATION TO THAT AN ORDER HAS BEEN PASSED ON 1ST JULY 2011 IN THREE INCOME TAX APPEALS BEARING NOS.485, 486 AND 683 OF 2010. THESE WERE APPEALS BROUGHT BY THE REVENUE. THE ASSESSEE BEFORE US IS A BERMUDA BASED COMPANY. IT IS ENGAGED IN THE BUSINESS INTER ALIA OF OPERATING SHIP CRUISE IN INDIA. THERE IS NO DISPUTE ABOUT THE TAXABILITY OF ITS INC OME ABOUT THESE CRUISE OPERATIONS IN INDIA. THE CRUISE SHIPS ARE OPERATED IN INDIAN WATERS AND THE RELATED BUSINESS IS CONDUCTED IN INDIA. THE ASSESSING OFFICER RELIED UP ON HIS OWN OBSERVATIONS IN PROCEEDINGS REGARDING ASCERTAIN MENT OF TAX LIABILITY BY THE AGENT OF THE ASSESSEE AND H ELD THAT SUPERSTAR LIBRA LTD.. ITA NO.1482/MUM/2016 9 PROVISIONS OF SECTION 448 OF THE ACT DO NOT APPLY T O THE ASSESSEE. THE TAX IS TO BE LEVIED ON NORMAL RATES A ND ON NET BASIS. THE ASSESSING OFFICER TOOK THE VIEW THAT THE CRUISE SHIPS DO NOT TRANSPORT PEOPLE FROM ONE PLACE TO ANOTHER BUT THE CRUISES ARE MEANT FOR ENTERTAINMENT AND THE JOURNEY AND THE PLACE OF DISEMBARKATION IS THE SAME AS THE PLACE OF EMBARKATION. THAT IS HOW HE PROCEEDED AND HIS ORDER CAME TO BE REVERSED BY THE CIT (APPEALS). THE REVENUE BROUGHT AN APPEAL TO THE TRIBUNAL HEAD BOT H THE SIDES AND CONCLUDED THAT THE ISSUE IS NO LONGER RES INTEGRA. THE TRIBUNAL'S COORDINATE BENCH DECISION RENDERED O N 1' JULY 2009 HAS BEEN REFERRED EXTENSIVELY IN PARAGRAP H 5 OF THE IMPUGNED ORDER. AGAINST THAT VIEW, APPEALS WERE BROUGHT TO THIS COURT AND THEY HAVE BEEN DECIDED ON 1' JULY 2011 AGAINST THE REVENUE AND IN FAVOUR OF THE ASSESSEE. 3. WE DO NOT FIND THAT THE PRESENT APPEAL RAISES ANY D IFFERENT QUESTION OTHER THAN DEALT WITH BY THE TRIBUNAL EARL IER AS ALSO THIS COURT. IN FACT, THE TRIBUNAL HAS FOLLOWED THE VIEW TAKEN BY THIS COURT. IT HAS CONCLUDED THE MATTER IN TERMS OF THE JUDGMENT OF THIS COURT AS IS CLEAR FROM PARA GRAPH 7 OF THE IMPUGNED ORDER. 4. AS A RESULT OF THE ABOVE DISCUSSION, THE PRESENT AP PEAL IS NOTHING BUT AN ATTEMPT TO SEEK RE-APPRECIATION AND REAPPRAISAL OF THE SAME FACTUAL POSITION. THE APPEA L DOES NOT RAISE ANY SUBSTANTIAL QUESTION OF LAW. IT IS AC CORDINGLY DISMISSED. NO COSTS. 2.3. WE FIND THAT ON THE ISSUE IN HAND A DETAILED DELIBERATION HAS ALREADY BEEN MADE BY THE TRIBUNAL AND ON APPEAL BY THE REVENUE, THE STAND TAKEN BY THE TRIBU NAL WAS AFFIRMED. THE HON'BLE HIGH COURT VIDE ORDER DATED 07/08/2014 APPROVED THE DECISION OF THE TRIBUNAL AN D ALSO CONSIDERED THE ORDERS OF THE TRIBUNAL FOR DIFFERENT ASSESSMENT YEARS. NO CONTRARY DECISION WAS BROUGHT TO OUR SUPERSTAR LIBRA LTD.. ITA NO.1482/MUM/2016 10 NOTICE BY EITHER SIDE AND MORE SPECIFICALLY THE REV ENUE. IT IS FURTHER NOTED THAT ORDER OF THE TRIBUNAL FOR ASSESS MENT YEAR 2007-08 WAS ALSO CARRIED IN APPEAL BEFORE THE HON'B LE HIGH COURT, WHEREIN, VIDE ORDER IN ITA NO.1786/2013 DATE D 10/08/2015 ON IDENTICAL ISSUE, DISMISSED THE APPEAL OF THE REVENUE. FOLLOWING THE AFORESAID DECISION OF THE TR IBUNAL AND FROM HON'BLE HIGH COURT, WE FIND NO INFIRMITY I N THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL ), IT IS UPHELD, RESULTING INTO DISMISSAL OF APPEAL OF THE R EVENUE. FINALLY, THE APPEAL OF THE REVENUE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 24/05/2018. SD/- SD/- ( N.K. PRADHAN ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER & MUMBAI; * DATED : 24/05/2018 F{X~{T? P.S / +' SUPERSTAR LIBRA LTD.. ITA NO.1482/MUM/2016 11 %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ,-./ / THE APPELLANT 2. 0./ / THE RESPONDENT. 3. 1 1 & 2% ( ,- ) / THE CIT, MUMBAI. 4. 1 1 & 2% / CIT(A)- , MUMBAI 5. 4'5 % , 1 ,-( , 6 , & / DR, ITAT, MUMBAI 6. 7# 8 / GUARD FILE. / BY ORDER, / (DY./ASSTT. REGISTRAR) , & / ITAT, MUMBAI,