M/s Auckland Shipping Ltd, Bhubaneswar V. Assistant Director of IT, Bhubaneswar

ITA 242/CTK/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4353 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2011
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 17-06-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 15-06-2010
• Court: TRIBUNAL
• Department Lawyers: PARAMITA TRIPATHY
• Assessee Lawyers: S NAYAK ARS; J JAIN

Judgement Text

IN THE INCME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE : HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER, AND HONBLE SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER. ITA NO. 242/CTK/2010 (ASSESSMENT YEAR 2003 - 04) M/S.AUCKLAND SHIPPING LTD., UK, C/O.J. M.BAXI &CO., AS AGENTS 48, BADAPADIA, THAKUR LANE, OPPOSITE BUS STAND, PARADIP PORT 754 142 PAN: AAAFJ 5198 E VERSUS ASST.DIRECTOR OF INCOME - TAX (INTERNATIONAL TAXATION), BHUBANESWAR. (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI J.JAIN AND S.NAYAK, ARS FOR THE RESPONDENT SMT. PARAMITA TRIPATHY, DR ORDER SHRI K.K.GUPTA, ACCOUNTANT MEMBER : THIS APPEAL BY THE ASSESSEE AGITATES THE ACTION OF THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) NOT ADMITTING THE APPEAL PREFERRED BY THE ASSESSEE AGAINST ORDER OF THE ASSESSING OFFICER U/S.172(4) OF THE INCOME - TAX ACT,1961. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS. 1.1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - I, BHUBANESWAR HAS ERRED IN HOLDING THAT NO APPEAL IS MAINTAINABLE UNDER SECTION 246A AGAINST AN ORDER PASSED UNDER SECTION 172(4). 1.2. THE APPELLANT CONTENDS THAT THE ASSESSMENT MADE U/S. 172(4) IS BAD IN LAW AS THE TIME LIMIT FOR COMPLETING THE REASSESSMENT ON THE APPELL ANT, AS A REPRESENTATIVE ASSESSEE, HAS ALSO EXPIRED ON 31 - 3 - 2006. 1.3. THE CIT(A) HAS ALSO ERRED IN HOLDING THAT THE ORDER UNDER SECTION 172(4) IS A SURMMARY OR ADHOC OR ROUGH AND READY ASSESSMENT FOR WHICH THE APPELLANT HAS NOT BEEN CONFERRED WITH RIGHT TO OBJECT. 1.4. THE APPELLANT FURTHER CONTENDS THAT THE ORDER UNDER SECTION 172(4) IS A COMPLETE CODE IN ITSELF AND NOT ADHOC DETERMINATION OF TAX PAYABLE ON PROVISIONAL BASIS HENCE THE RELIANCE OF CIT(A) ON THE DECISION OF MUMBAI HIGH COURT IN THE CASE OF CIT VS. GARWARE NYLONS LTD., (1995) REPORTED IN 212 ITR 242 IS INCORRECT. 1.5. THE APPELLANT FURTHER CONTENDS THAT THE CIT(A) HAS ERRED IN NOT APPRECIATING THE FACT THAT ALL THE DOCUMENTS CALLED FOR [AS STATED IN THE BODY OF THE ORDER UNDER SECTIO N 172(4) WERE ALREADY FILED BEFORE THE INCOME TAX OFFICER, PARADIP WARD ON 7 TH JULY 2003 (AND THE SAME WERE ALSO FILED BEFORE THE CIT(A) ON 29 TH JANUARY 2010) AND THE SAME WERE IGNORED BY THE ADIT AND A ITA NO.242/CTK/2010 2 WRONG PRESUMPTION WAS REACHED THAT THE FOREIGN SHIP OWNER WAS A RESIDENT OF SWITZERLAND AND NOT UK. 1.6. THE APPELLANT CONTENDS THAT THE ASSESSMENT WAS MADE ON IT AS A REPRESENTATIVE ASSESSEE THAT TOO AFTER A PERIOD OF 6.25 YEARS (APPROX. MORE THAN 2281 DAYS) FROM THE DATE OF DEPARTURE OF THE VESSEL (FROM INDIA ON 14.8.2002), HENCE IT IS TIME BARRED. 1 .7 . THE APPELLANT CONTENDS THAT THE GROUNDS OF APPEAL REPRODUCED BY THE CIT(A) IN THE BODY OF HIS ORDER DATED 30.3.20 10 ARE INCORRECT . T HE APPELLANT CONTENDS THAT THE GROUNDS OF APPEAL [HEREINAFTER REFERRED TO AS GOA] REPRODUCED BY THE CIT(A) IN THE BODY OF HIS ORDER DATED 30.3.2010 ARE INCORRECT AND NOT IN LINE WITH THE GOA AS PER FORM NO. 35 WHICH IS ATTACHED WITH THESE APPEAL PAPERS. 1 .8 THE APPELLANT THEREFORE PR AYS YOUR HONOUR TO DECIDE THE CASE ON MERITS SO AS TO MEET THE ENDS OF JUSTICE . 3. AT THE OUTSET THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUE HAS BEEN DELIBERATED BY THE HONBLE SUPREME COURT IN THE CASE OF UNNION OF INDIA & ORS., VS. ARABIANEXPRESSLINE & ANR. DATED9THNOVEMBER, 1 995, WHEN ON THE BASIS OF A WRIT PETITION BEFORE HONBLE GUJARAT HIGH COURT, THE ORDER U/S.172(4) WAS RESTORED TO THE FILE OF THE CIT(A) FOR CONSIDERATION ON MERITS WHICH INCIDENTALLY WAS ALSO SUPPORTED BY DECISION OF ITAT, CHENNAI C BENCH IN THE CASE OF I TO(INTERNATIONAL TAXATION) VS. MSC AGENCY (INDIA) (P) LTD (2011 54 DTR (CHENNAI)(TRIB) 331, WHICH COPY IS BEING FURNISHED. THEREFORE, THE APPEAL FILED BEFORE THE LEARNED CIT(A) AGAINST THE ORDER PASSED U/S.172(4) IS MAINTAINABLE WHICH MAY KINDLY BE DIRECTE D TO BE CONSIDERED BY THE LEARNED CIT(A) ON MERITS. 4. HAVING HEARD BOTH THE PARTIES AND GOING THROUGH THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW AND ALSO THE DECISIONS RELIED ON BY THE LEARNED COUNSEL OF THE ASSESSEE, WE FIND THAT IN THE CASE OF UNION O F INDIA & ORS V. ABABIAN EXPRESS LINE & ANR. IN CIVIL APPEAL NO.10328 OF 1995 ORDER DT.9.11.1995 (COPY PLACED ON RECORD), THE CIT(A) DISMISSED THE ASSESSEES APPEAL HOLDING THAT THE APPEAL WAS NOT MAINTAINABLE IN LAW, INASMUCH AS AN ORDER U/S.172(4) IS NOT APPEALABLE UNDER SECTION 246. HONBLE SUPREME COURT OBSERVED THAT CLAUSE (A) OF SECTION 246(1) IS CLEARLY ATTRACTED AND AN APPEAL ITA NO.242/CTK/2010 3 LIKES AGAINST AN ORDER PASSED U/S.172(4). IN THE CASE OF ITO (INTERNATIONAL TAXATION) VS. MSC AGENCY (INDIA) (P) LTD., REPORT ED IN (2011) 54 DTR (CHENNAI)(TRIB) 331, THE ITAT, CHENNAI C BENCH, IN WHICH THE AUTHOR OF THIS ORDER IS ONE OF THE MEMBERS , HAS HELD ON SIMILAR CIRCUMSTANCES AS IN THE PRESENT CASE, THAT AS THE ASSESSEE HAS CHALLENGED THE AMOUNT OF TAX DETERMINED UNDER TH E PROVISIONS OF SECTION 172(4), THE CIT(A) WAS RIGHT IN ADMITTING AND ADJUDICATING THE APPEAL FILED BY THE ASSESSEE. IN VIEW OF THE ABOVE JUDICIAL PRONOUNCEMENT, WE ARE OF THE CONSIDERED VIEW THAT THE LEARNED CIT(A) IN THE PRESENT CASE IS NOT JUSTIFIED IN NOT ENTERTAINING THE APPEAL OF THE ASSESSEE FILED AGAINST SECTION 172(4). WE SET ASIDE THE SAID ORDER OF THE LEARNED CIT(A) AND DIRECT HIM TO DECIDE THE APPEAL FILED BY THE ASSESSEE BEFORE HIM ON MERITS. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLO WED. PRONOUNCED IN OPEN COURT ON DT. 30 TH JUNE, 2011 SD/ - SD/ - (K.S.S.PRASAD RAO) JUDICIAL MEMBER (K.K.GUPTA) ACCOUNTANT MEMBER DATE: 30 TH JUNE, 2011 H.K.PADHEE, SENIOR PRIVATE SECRETARY. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT: M/S.AUCKLAND SHIPPING LTD., UK, C/O.J.M.BAXI &CO., AS AGENTS 48, BADAPADIA, THAKUR LANE, OPPOSITE BUS STAND, PARADIP PORT 754 142 2. THE RESPONDENT: 3. THE CIT, 4. THE CIT(A), 5. THE DR, CUTTACK 6. GUA RD FILE (IN DUPLICATE) TRUE COPY, BY ORDER, SENIOR PRIVATE SECRETARY.