ORIENT OVERSEAS CONTAINER LINE LTD, MUMBAI V. DDIT (IT) 4(2), MUMBAI

ITA 1880/MUM/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3959 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-07-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 25-07-2013
• Assessment Year: 2010-2011
• Appeal Filed On: 08-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A C TEJPAL
• Assessee Lawyers: K K VED
• Section: 234B; 154; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH , MUMBAI , !!' !!' !!' !!' , , # # # # BEFORE SHRI RAJENDRA SINGH, AM, AND SHRI SAN JAY GARG, JM /. I.T.A. NO.1880/MUM/2013 ( $' $' $' $' %' %' %' %' / ASSESSMENT YEAR: 20010-11) /. I.T.A. NO.7693/MUM/2011 ( $' $' $' $' %' %' %' %' / ASSESSMENT YEAR: 2009-10) M/S. ORIENT OVERSEAS CONTAINER LTD., C C/O. OOCL (INDIA) PVT. LTD., ICC CHAMBERS, 5 TH FLOOR, SAKI VIHAR ROAD, MUMBAI :-400 072. $ $ $ $ / VS. THE DEPUTY DIRECTOR OF INCOME TAX(INTERNATIONAL TAXATION)-4(2), MUMBAI . & /. ' /. PAN/GIR NO. :AAACO5679E ( &( / APPELLANT ) : ( )*&( / RESPONDENT ) &( + / APPELLANT BY : SHRI K.K. VED )*&( + / RESPONDENT BY : SHRI A.C. TEJPAL, $ - / DATE OF HEARING : 25. 07. 2013 /0% - /DATE OF PRONOUNCEMENT : 25 .07. 2013 1 / O R D E R PER :RAJENDRA SINGH (AM) THESE APPEAL BY THE ASSESSEE IS DIRE CTED AGAINST THE ORDERS DATED 26.08.2011 AND 28.12.2012 OF CIT(A) MUMBAI, FOR THE ASSESSMENT YE AR 2009-10 AND 2010-11. THE ONLY DISPUTE RAISED IN THIS APPEAL IS REGARDING LEVY OF INTEREST U/S 234 B OF THE IT ACT. 2 1880 M 2013 AND 7693 M 2011, ORIENT OVERSEAS CONTAINER LINE LTD. VS. DDIT 2. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS A NON RESIDENT COMPANY INCORPORATED IN HONG KONG. IT IS ENGAGED IN THE BUSINESS OF OPERATI ON OF SHIPS IN INTERNATIONAL TRAFFIC. THE CASE OF THE ASSESSEE WAS GOVERNED BY THE PROVISIONS OF SECTION 44B AND SECTION 172 OF THE INCOME TAX ACT. THE ASSESSEE HAD EXERCISED THE OPTI ON ALLOWED TO IT U/S 172(7) OF THE ACT AND FILED THE RETURN OF INCOME U/S. 139 (1) ON 25.09.20 09. THE AO IN THE ASSESSMENT LEVIED INTEREST U/S 234B ON ACCOUNT OF SHORT FALL IN PAYME NT OF ADVANCE TAX. THE ASSESSEE DISPUTED THE DECISION OF THE AO AND SUBMITTED BEFORE THE CIT (A) THAT IN VIEW OF THE DECISION SPECIAL BENCH OF TRIBUNAL IN CASE OF ACIT VS NORASIA LINES (MALTA) LTD. (292 ITR 31), THE PROVISIONS OF SECTION 234B AND 234C WERE NOT APPLI CABLE IN CASE OF NON-RESIDENT ENGAGED IN THE SHIPPING BUSINESS, WHO EXERCISED OF SAME ALLOWE D U/S 172(7). CIT(A), HOWEVER, NOTED THAT THE ASSESSEE HAD ALREADY FILED APPLICATION U/ S 154 BEFORE THE AO. HE THEREFORE, DIRECTED THE AO TO DISPOSE OF THE APPLICATION U/S 15A WITHOU T GIVING ANY DECISION ON THE ISSUE RAISED IN APPEAL. AGGRIEVED BY DECISION OF THE CIT(A), TH E ASSESSEE IS IN APPEAL BEFORE TRIBUNAL. 3. BEFORE US, THE LEARNED AR FOR THE ASSESSEE SUBMI TTED THAT ISSUE WAS COVERED BY THE DECISION OF TRIBUNAL IN CASE OF ORINET OVERSEAS CON TAINER LINE LTD VS. THE ADDITIONAL DIRECTOR OF INCOME TAX, ITA 7089/MUM/2010. ON THE OTHER HAND, LEARNED DR PLACED RELIANCE ON THE ORDER OF THE AO. 4. WE HAVE PERUSED THE RECORDS AND CONSIDERED THE M ATERIAL CAREFULLY. THE DISPUTE IS REGARDING LEVY OF INTEREST U/S 234B ON ACCOUNT OF S HORT FALL IN PAYMENT OF ADVANCE TAX IN CASE OF THE ASSESSEE WHO IS A NON-RESIDENT ENGAGED IN TH E BUSINESS OF OPERATION OF SHIPS IN INTERNATIONAL TRAFFIC. WE FIND THAT THIS ISSUE HAS ALREADY BEEN CONSIDERED BY THE TRIBUNAL IN CASE OF ORIENT OVERSEAS CONTAINER LINE LTD.(SUPRA). THE TRIBUNAL REFERRED TO JUDGMENT OF THE HONBLE HIGH BOMBAY HIGH COURT IN CASE OF NGC NETWO RK ASIA LLC[2009]313 ITR 187(BOMBAY), IN WHICH IT WAS HELD THAT WHEN A DUTY IS CAST UPON PAYER TO PAY TAX AT SOURCE, ON ITS FAILURE TO DO SO, NO INTEREST CAN BE IMPOSED UPON PAYEE ASSESSEE U/S 234B. TRIBUNAL, THEREFORE, DIRECTING THE AO TO DELETE THE LEVY OF I NTEREST U/S 234 B AND 234C. THE FACTS IN THE PRESENT CASE ARE IDENTICAL AND, THEREFORE, FOLLOWIN G THE DECISION OF THE TRIBUNAL IN THE CASE OF 3 1880 M 2013 AND 7693 M 2011, ORIENT OVERSEAS CONTAINER LINE LTD. VS. DDIT ORIENT OVERSEAS CONTAINER LINE LTD(SUPRA), WE DIREC T THE AO TO DELETE THE LEVY INTEREST U/S 234 B. 5. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED. -3 $'- 444 5-4 - 6 4 ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH DAY OF JULY, 2013. . 1 /0% $3 25.07.2013 0 ! SD/- SD/- ( SANJAY GARG ) ( RAJENDRA SINGH ) /JUDICIAL MEMBER 4 / ACCOUNTANT MEMBER MUMBAI: $4 DATED : 25. 07.2013 $ . /. PRAMOD KUMAR, PS 1 1 1 1 )- )- )- )- 9%- 9%- 9%- 9%- / COPY OF THE ORDER FORWARDED TO : 1. &( / THE APPELLANT 2. )*&( / THE RESPONDENT 3. : ) ( / THE CIT(A) 4. : / CIT - CONCERNED 5. ;! )-$ , , / DR, ITAT, MUMBAI 6. !<' = / GUARD FILE 1$ 1$ 1$ 1$ / BY ORDER, > >> > / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI.