HANJIN SHIPPING COMPANY LTD, MUMBAI V. DCIT (IT) RG 2(2)(2), MUMBAI

ITA 1538/MUM/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 3038 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2013-2014
• Appeal Filed On: 06-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUNITA BILLA
• Keywords: Presumptive income; Double taxation relief; Advance ruling
• Section: 143(3)

Judgement Text

H IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO. 1538 / MUM/ 2017 ( / ASSESSMENT YEAR : 2013 - 14 ) HANJIN SHIPPING COMPANY LTD. C/O. HANJIN SHIPPING INDIA P. LTD., (AGENT OF HANJIN SHIPPING CO. LTD. ) , 402 VEDANTA, 779 MAKWANA ROAD, OFF ANDHERI KURLA ROAD, MAROL VILLAGE, ANDHERI(E), MUMBAI 400059 / V. DCIT (IT) RG 2( 2)(2) MUMBAI ./ PAN : AA A CH 3759 G ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY: NONE REVENUE BY : MS. SUNITA BILLA, DR / DATE OF HEARING : 14.08.2018 / DATE OF PRONOUNCEMENT : 28 . 08.2018 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER THIS APPEAL, FILED BY THE ASSESSEE , BEING ITA NO. 1538/MUM/2017, IS DIRECTED AGAINST ASSESSMENT ORDER DATED 31.01.2017 PASSED BY THE LEARNED ASSESSING OFFICER (HEREINAFTER CALLED THE AO) U/S 143(3) I.T.A. NO.1538/MUM/2017 2 R.W.S. 144C(13) OF THE INCOME - TAX ACT,1961 (HEREINAFTER CALLED THE ACT) IN PURSUANCE OF DIRECTION S DATED 29.11.2016 ISSUED BY LEARNED D IS PUTE R ESOLUTION P ANEL - 1(WZ), MUMBAI (HEREINAFTER CALLED THE DRP ), FOR ASSESSMENT YEAR 2013 - 14 . 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN THE MEMO OF APPEAL FILED WITH THE INCOME - TAX APPELLATE TRIBUNAL, MUMBAI (HEREINAFTER CALLED THE TRIBUNAL ) READ AS UNDER: - THE APPELLANT APPEALS AGAIN ST THE IMPUGNED ORDER DATED 31ST JANUARY, 2017 PASSED BY THE DEPUTY COMMISSIONER OF INCOME TAX (IT) - 2(2)(2) MUMBAI (RECEIVED BY THE APPELLANT ON 2ND FEBRUARY, 2017) UNDER SECTION 143(3) R.W.S. 144C(13) OF TH E INCOME TAX ACT, 1961 (THE ACT) ON THE FOLLOWING AMONGST OTHER GROUNDS EACH OF WHICH IS IN THE ALTERNATIVE AND WITHOUT PREJUDICE TO ANY OTHERS: 1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED ASSESSING OFFICER HAS ERRED IN PROPOSING AND THE HON'BLE DISPUTE RESOLUTION PANEL (DRP) HAS ERRED IN CONFIRMING/UPHOLDING THE ADDITIONS OF RS.352,540,620/ - BEING THE AMOUNT OF SERVICE TAX TO THE TOTAL REVENUE FOR THE COMPUTATION OF PROFIT UNDER SECTION 44B OF THE INCOME TAX ACT, 1961 (T HE ACT). 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED ASSESSING OFFICER AND THE HON'BLE DISPUTE RESOLUTION PANEL (DRP) HAVE ERRED IN NOT FOLLOWING THE ORDER OF INCOME TAX APPELLATE TRIBUNAL (ITAT) IN ASSESSEE'S OWN CASE F OR A.Y.2007 - 08 ORDER DATED 31ST OCT, 2012 AND A.Y.2008 - 09 ORDER DATED 22N D OCT, 2013 BOTH UPHELD IN FAVOR OF ASSESSEE RELATING TO THE SAME ISSUE. THE APPELLANT CRAVES LEAVE TO ALTER, AMEND AND / OR ADD ANY OTHER GROUND OF APPEAL. 3. THE ASSESSEE IS A COMPANY INCORPORATED AND REGISTERED IN SEOUL, KOREA . THE ASSESSEE IS ENGAGED IN THE BUSINESS OF GLOBAL MARITIME CONTAINER TRANSPORTATION. THE ASSESSEE HAS CHOSEN TO BE TAX ED U/S. 44B OF THE ACT WITH RESPECT TO ITS INCOME FROM OPERATION OF SHIP ON PRESUMPTIVE BASIS READ WITH ARTICLE 9 OF THE DTAA BETWEEN INDIA AND KOREA. THE SHORT SOLITARY QUESTION WHICH AROSE IN THIS APPEAL IS WHETHER SERVICE TAX OF RS. 35,25,40,620/ - COLLECTED BY THE ASSESSEE AND PAID TO GOVERNMENT DURING THE RELEVANT PERIO D IS TO BE INCLUDED IN I.T.A. NO.1538/MUM/2017 3 THE TURNOVER WHILE COMPUTING PRESUMPTIVE INCOME U/S 44B OF THE 1961 ACT FROM OPERATION OF SHIPS . THE ASSESSEE COLLECTED SAID AMOUNT OF RS. 35,25,40,620/ - TOWARDS SERVICE TAX WHICH IS STATED TO BE DEPOSITED WITH GOVERNMENT TREASURY AN D THE ASSESSEE EXCLUDED SAID SUM FROM THE AGGREGATE AMOUNT RECEIVED FROM THE BUSINESS OF OPERATIONS OF SHIPS WHILE COMPUTING PRESUMPTIVE TAX U/S 44B OF THE 1961 ACT. THE LEARNED DRP WAS OF THE VIEW THAT THIS SERVICE TAX COMPONENT OF RS. 35.25 CRORE IS TO BE INCLUDED IN THE GROSS RE CEIPTS FOR THE PURPOSE OF PRESUMPTIVE TA XATION AS PER THE PROVISION OF S ECTION 44B OF THE ACT. 4. THE LEARNED DRP WHILE ISSUING DIRECTIONS U/S. 144C(5 ) OF THE 1961 ACT NOTED THAT TRIBUNAL IN ASSESSEE S OWN CASE FOR AY 2007 - 08 AN D 2008 - 09 IN ITA NO. 8 672/MUM/2010 AND ITA NO. 7010/MUM/2011 RESPECTIVELY HAS HELD IN FAVOUR OF THE ASSESSEE BUT SINCE R EVENUE H AS NOT ACCEPTED AFORESAID DECISION (S) OF THE T RIBUNAL AND AN APPEAL HAS BEEN FILED WITH HONBLE BOMBAY HIGH COURT WHICH IS PENDING FOR DISPOSAL, THE ADDITIONS WERE CONFIRMED BY LEARNED DRP VIDE DIRECTIONS DATED 29.11.2016 ISSUED U/S 144C(5) OF THE 1961 ACT WHICH LATER CULMINATED INTO AN ASSESSMENT ORDER DATED 31.01.2017 PASS ED BY THE AO UNDER 143(3) R.W.S 144C(13) O F THE 1961 ACT . 5. AGGRIEVED, T HE ASSESSEE HAS COME IN AN APPEAL BEFORE THE TRIBUNAL AND NONE APPEARED ON BEHALF OF THE ASSESSEE. THE LD. DR BROUGHT TO OUR NOTICE DIRECTIONS ISSUED BY LEARNED DRP DATED 29.11.2016 U/S 144C(5) OF THE 1961 ACT WHEREIN THERE IS REFERENCE TO THE ORDER OF THE TRIBUNAL IN ASSESSEE S OWN CASE IN ITA NO. 8 672/MUM/2010 AND 7010/MUM/2011 FOR AY 2007 - 08 AND 2008 - 09 RESPECTIVELY WHEREIN THE ISSUE WAS DECIDED BY TRIBUNAL IN FAVOUR OF THE ASSESSEE BY HOLDING THAT SERVICE TAX SHALL NO T FORM PART OF THE GROSS RECEIPTS WHICH ARE TO BE CONSIDERED FOR COMPUTING PRESUMPTIVE TAX U/S 44B OF THE 1961 ACT . I.T.A. NO.1538/MUM/2017 4 6. WE HAVE HEARD CONTENTION OF THE LD. DR AND PERUSED THE MATERIAL ON RECORD INCLUDING ORDERS OF THE TRIBUNAL IN ASSESSEES OWN CASE IN I TA NO. 8 672/MUM/2010 AND 7070/MUM/2011 FOR AY 2007 - 08 AND 2008 - 09 RESPECTIVELY WHEREIN THE TRIBUNAL DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY HOLDING THAT SERVICE TAX COMPONENT WHICH IS COLLECTED BY THE ASSESSEE FROM ITS CLIENT FOR DEPOSIT WITH GOVER NMENT SHALL NOT FORM PART OF GROSS RECEIPT FOR COMPUTING PRESUMPTIVE TAX U/S 44B OF THE 1961 ACT. WE HAVE ALSO NOTED THAT TRIBUNAL IN ASSESSEES OWN CASE FOR AY 2010 - 11 IN ITA NO. 5277 /MUM/2014 VIDE ORDERS DATED 13.05.2016 HAS AGAIN DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE . THUS, WE HAVE OBSERVED THAT TRIBUNAL IN ASSESSEE S OWN CASE FOR PRECEDING YEARS HAS TAKEN A C ONSISTENT VIEW THAT SERVICE TAX SHALL BE INCLUDED IN THE GROSS TURNOVER WHILE COMPUTING PRESUMPTIVE INCOME U/S. 44B OF THE ACT. THE ORDER OF THE TRIBUNAL FOR AY 2010 - 11 IN ITA NO. 5277/MUM2014 VIDE ORDERS DATED 1 3.05.2016 IS REPRODUCED HEREUNDER: - THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER DATED 24.06.2013 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAF TER REFERRED TO AS THE CIT(A)] RELEVANT TO ASSESSMENT YEAR 2010 - 11. 2. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 10 ('CIT( A) - 10') HAS GROSSLY ERRED IN CONFIRMING THE ACTIONS OF THE ASSESSING OFFICER OF MAKING ADDITION OF RS.11,34,14,190/ - BEING THE AMOUNT OF SERVICE TAX TO THE TOTAL REVENUE FOR THE COMPUTATION OF PROFIT UNDER SECTION 44B OF THE INCOME - TAX ACT, 1961 ('THE ACT' ). 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) - 10 HAS LEGALLY ERRED IN NOT FOLLOWING THE ORDER OF INCOME TAX APPELLATE TRIBUNAL (ITAT) IN APPELLANTS OWN CASE FOR A.Y.2008 - 09 AND A.Y.2007 - 08. 3. ON THE FACTS AND IN THE CIRC UMSTANCES OF THE CASE, THE LEARNED CIT(A) - 10 HAS LEGALLY ERRED IN NOT GRANTING REASONABLE AND ADEQUATE OPPORTUNITY TO THE APPELLANT TO PRESENT ITS CASE BEFORE PASSING THE ORDER AND THE SAID ORDER IS BEING PASSED IN VIOLATION OF PRINCIPLE OF NATURAL JUSTI CE IS LIABLE TO BE QUASHED. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR WITHDRAW ALL OR ANY OF THE GROUNDS OF PA HEREIN AND TO SUBMIT SUCH STATEMENTS, DOCUMENTS AND PAPERS AS MAY BE CONSIDERED NECESSARY EITHER AT OR BEFORE THE APPEAL HEARING. I.T.A. NO.1538/MUM/2017 5 3 . THE FACTS IN BRIEF ARE THAT THE ASSESSEE COMPANY IS A FOREIGN COMPANY INCORPORATED UNDER THE LAW OF KOREA. THE ASSESSEE HAS OPTED THAT ITS INCOME FROM OPERATION OF SHIPPING BE TAXED UNDER SECTION 44B OF THE INCOME TAX ACT ON PRESUMPTIVE BASIS AT THE RATE OF 7.5% OF THE AGGREGATE AMOUNT AS PER THE PROVISIONS OF SECTION 44B OF THE ACT READ WITH ARTICLE 9 OF THE DTAA BETWEEN INDIA AND KOREA. THE CONTROVERSY INVOLVED IN THIS APPEAL IS AS TO WHETHER THE SERVICE TAX COLLECTED DURING THE YEAR SHOULD BE A PART OF THE GROSS RECEIPTS FOR THE PURPOSE OF THE COMPUTATION OF INCOME OR THE GROSS RECEIPTS ARE TO BE TAKEN EXCLUSIVE OF SALES TAX RECEIPTS. THE ASSESSING OFFICER (HEREINAFTER REFERRED TO AS THE AO) WHILE RELYING UPON THE AUTHORITY OF ADVANCE RULING (AAR) IN TH E CASE OF SIEM OFFSHORE INC REPORTED IN (2011) 337 ITR 027 OBSERVED THAT THE GROSS RECEIPTS SHOULD BE TAKEN INCLUSIVE OF THE SERVICE TAX FOR THE PURPOSE OF COMPUTATION OF INCOME OF THE ASSESSEE UNDER SECTION 44B OF THE ACT. WHILE HOLDING SO, THE AO ALSO RELIED UPON THE DECISION OF THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF DDIT (INTERNATIONAL TAXATION) VS. TECHNIP OFFSHORE CONTRACTING BE ITA NO.4613/DEL/2007 VIDE ORDER DATED 16.01.09 WHEREIN THE DELHI TRIBUNAL HAS HELD THAT SINCE THE SERVICE TAX COL LECTED BY THE ASSESSEE WAS DIRECTLY IN CONNECTION WITH THE SERVICES AND FACILITIES AS SPELT OUT IN SECTION 44BB(2), HENCE, THE AMOUNT OF SERVICE TAX COLLECTED BY THE ASSESSEE IS TO BE INCLUDED IN THE TOTAL RECEIPTS FOR DETERMINING THE PRESUMPTIVE PROFIT UN DER SECTION 44BB. 4. BEING AGGRIEVED BY THE ABOVE ACTION OF THE AO, THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A), RELYING UPON THE DECISION OF THE CO - ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF M/S. CHINA SHIP CONTAINER LINES (HONG KONG) COMPANY LTD. IN ITA NO.8516/M/10 DATED 23.08.13, UPHELD THE ACTION OF THE AO IN INCLUDING THE SERVICE TAX RECEIPT IN THE GROSS RECEIPTS TAKEN FOR COMPUTING THE PRESUMPTIVE PROFITS OF THE ASSESSEE. BEING AGGRIEVED, THE ASSESSEE HAS COME IN APPEAL BEFORE US. 5. AT THE OUTSET, THE LD. A.R. OF THE ASSESSEE HAS STATED THAT THE VERY ISSUE HAS ALREADY BEEN DEALT WITH AND DECIDED BY THE TRIBUNAL IN THE EARLIER ASSESSMENT YEARS IN THE OWN CASE OF THE ASSESSEE. HE, IN THIS RESPECT, HAS RELIED UPON THE DECISIONS OF THE TRIBUNAL IN THE OWN CASE OF THE ASSESSEE FOR A.Y. 2007 - 08 AND 2008 - 09 AND FURTHER UPON THE ASSESSMENT ORDER FOR A.Y. 2012 - 13 WHEREIN THE AO, WHILE GIVING EFFECT TO THE DIRECTIONS OF THE DRP, HAS NOT INCLUDED THE SERVICE TAX IN THE GROSS INCOME OF THE ASSESSEE FOR T HE PURPOSE OF CALCULATION OF PRESUMPTIVE PROFITS UNDER SECTION 44B OF THE ACT. THE COPY OF THE DRP DIRECTIONS DATED 24.11.15 FOR A.Y. 2012 - 13 HAVE ALSO BEEN PLACED ON FILE. THE ASSESSEE HAS ALSO RELIED UPON THE DECISION OF THE HONBLE DELHI HIGH COURT IN T HE CASE OF DIT VS. MITCHELL DRILLING INTERNATIONAL PVT. LTD. (2015) 62 TAXMAN.COM 24 (DELHI). ON THE OTHER HAND, THE LD. D.R. HAS RELIED UPON THE FINDING OF THE LOWER AUTHORITIES. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND HAVE ALSO GONE THROUGH THE RECORDS. WE FIND THAT THE CO - ORDINATE BENCH OF THE TRIBUNAL IN THE OWN CASE OF THE ASSESSEE IN EARLIER ASSESSMENT YEAR A.Y. 2007 - 08 VIDE ORDER DATED 31.10.12 HAS OBSERVED THAT THE DECISION OF THE DELHI BENCH OF THE ITAT IN THE CASE OF TECHNIP OFFSHORE CON TRACTING BE (SUPRA) HAS ALREADY BEEN CONSIDERED BY THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF ISLAMIC REPUBLIC OF IRAN SHIPPING LINES VS. DY. DIRECTOR OF INCOME TAX 11 TAXMAN.COM 349 WHEREIN IT HAS BEEN HELD THAT THE SERVICE TAX SINCE HAS BEEN COLL ECTED BY THE ASSESSEE ON BEHALF OF THE GOVERNMENT WHICH IS A STATUTORY LIABILITY AND DOES NOT INVOLVE ANY ELEMENT OF PROFITS AND ACCORDINGLY THE SAME CANNOT BE INCLUDED IN THE TOTAL RECEIPTS FOR DETERMINING THE PRESUMPTIVE INCOME. THE CO - I.T.A. NO.1538/MUM/2017 6 ORDINATE BENCH OF THE TRIBUNAL, THUS, IN THE OWN CASE OF THE ASSESSEE HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. FOLLOWING THE SAID DECISION, THE CO - ORDINATE BENCH OF THE TRIBUNAL, IN THE OWN CASE OF THE ASSESSEE FOR A.Y. 2008 - 09, HAS AGAIN OBSERVED THAT THE ISSUE IS COVERED IN THE ASSESSEES OWN CASE FOR A.Y. 2007 - 08 AND THUS HAS UPHELD THE ORDER OF THE LD. CIT(A) HOLDING THAT THE SERVICE TAX SINCE IS A STATUTORY LIABILITY AND DOES NOT INVOLVE AN ELEMENT OF PROFIT AND THE SAME BEING COLLECTED BY THE SERVICE PROVIDER F ROM HIS CUSTOMERS ON BEHALF OF THE GOVERNMENT, ACCORDINGLY CANNOT BE INCLUDED IN THE TOTAL RECEIPTS FOR DETERMINING THE PRESUMPTIVE INCOME UNDER SECTION 44B OF THE ACT. SIMILAR VIEW HAS BEEN TAKEN BY THE DRP IN THE OWN CASE OF THE ASSESSEE FOR A.Y. 2012 - 1 3. THE CO - ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF ISLAMIC REPUBLIC OF IRAN SHIPPING LINES VS. DY.DIT ITA NO.4877/M/2014 FOR A.Y. 2010 - 11 VIDE ORDER DATED 17.02.16 HAS OBSERVED THAT THOUGH THE CO - ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF M/S. CH INA SHIP CONTAINER LINES (HONG KONG) COMPANY LTD. (SUPRA) HAS DECIDED THE ISSUE IN FAVOUR OF THE REVENUE, HOWEVER, THE HONBLE DELHI HIGH COURT, WHICH IS A HIGHER AUTHORITY, IN THE CASE OF DIT VS. MITCHELL DRILLING INTERNATIONAL PVT. LTD. (SUPRA) HAS DE CIDE THE ISSUE IN FAVOUR OF THE ASSESSEE. THE CO - ORDINATE BENCH OF THE TRIBUNAL HAS FURTHER OBSERVED THAT SINCE THE ISSUE UNDER CONSIDERATION HAS ALREADY BEEN DECIDED IN THE OWN CASE OF THE ASSESSEE AND FURTHER THAT THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF MARUBENI CORPORATION VS. DCIT (2014) 44 TAXMAN.COM 22 (MUM.) HAS HELD THAT AS A MATTER OF PRECEDENT THE TRIBUNAL IS BOUND TO FOLLOW THE DECISION RENDERED BY THE TRIBUNAL IN THE OWN CASE OF THE ASSESSEE IN EARLIER YEAR, UNLESS, THERE IS A CHANGE I N LAW, CHANGE IN FACTS AND CIRCUMSTANCES OF THE CASE OR THE SAME IS CONTRARY TO THE DECISION RENDERED BY A JURISDICTIONAL HIGH COURT OR APEX COURT. IN THE ABSENCE OF ANY OF SUCH CIRCUMSTANCES, THE EARLIER DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE HAS TO BE APPLIED. IN VIEW OF THE RATIO OF LAW LAID DOWN BY THE CO - ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF MARUBENI CORPORATION VS. DCIT (SUPRA) WHICH HAS BEEN FURTHER FOLLOWED BY THE TRIBUNAL IN THE CASE OF ISLAMIC REPUBLIC OF IRAN SHIPPING LINES F OR A.Y. 2010 - 11 (SUPRA) AND IN THE LIGHT OF DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF DIT VS. MITCHELL DRILLING INTERNATIONAL PVT. LTD. (SUPRA), WE HOLD THAT SERVICE TAX COLLECTED BY THE ASSESSEE AND PAID TO THE GOVERNMENT ACCOUNT HAVING NO PROFIT ELEMENT, CANNOT BE INCLUDED IN THE GROSS RECEIPTS FOR COMPUTATION OF INCOME UNDER SECTION 44B OF THE ACT. THIS ISSUE IS ACCORDINGLY DECIDED IN FAVOUR OF THE ASSESSEE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS HEREBY ALLOWED. R ESPECTFUL LY FOLLOWING THE AFORESAID ORDER S OF THE TRIBUNAL IN ASSESSE S S OWN CASE FOR AY 2010 - 11 WHICH HAS ELABORATELY DISCUSSED THE ISSUE IN LENGTH , WE ALLOW THE APPEAL OF THE ASSESSEE BY HOLDING THAT THE SERVICE TAX COLLECTED BY THE ASSESSEE AND PAID TO THE GOVE RNMENT ACCOUNT HAVING NO PROFIT ELEMENT , CANNOT BE INCLUDED IN THE GROSS RECEIPTS FROM OPERATION OF SHIPS FOR COMPUTATION OF INCOME U/S 44B OF THE 1961 ACT . MERELY BECAUSE THE R EVENUE HAS FILED AN APPEAL BEFORE THE HONBLE BOMBAY HIGH COURT IS NOT SUFF ICIENT FOR US TO TAKEN A DIFFERENT VIEW AS NO JUDGMENT OF THE HONBLE HIGH COURT / HONBLE I.T.A. NO.1538/MUM/2017 7 APEX COURT HOLDING IN FAVOU R OF R EVENUE HAS BEEN BROUGHT ON RECORD BY LEARNED DR . THIS ISSUE IS ACCORDINGLY DECIDED IN FAVOUR OF THE ASSESSEE. WE ORDER ACCORDINGLY. 8. IN THE RESULT, T HE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 8 . 08.2018 2 8 . 08.2018 S D / - S D / - ( SAKTIJIT DEY ) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 2 8 . 08.2018 NISHANT VERMA SR. PRIVATE SECRETARY COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) CONCERNED, MUMBAI 4. THE CIT - CONCERNED, MUMBAI 5. THE DR BENCH, 6. MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI