M/s. Pearl Logistic & EX-IM Corporation as Agent of M.V. Winterset, Bhavnagar V. The Income Tax Officer, International Taxation, RAJKOT-GUJARAT

ITA 312/RJT/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2244 (ITAT-RAJKOT)
• Duration Of Justice: 2 year(s) 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 14-03-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 23-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C S ANJARIA
• Assessee Lawyers: ANKIT GOKANI
• Keywords: Double taxation relief; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BEN CH, RAJKOT [CONDUCTED THROUGH E-COURT AT AHMEDABAD] (BEFORE SHRI ANIL CHATURVEDI, A.M. & SHRI S. S. GOD ARA, J.M.) ( , , ) ITA NO. 312/RJT/2013 (ASSESSMENT YEAR: 2011-12) M/S. PEARL LOGISTICS & EX- IM CORPORATION 207, NIRMAL PLAZA, ABOVE ALLAHABAD BANK, OPP. SHANESHWER FLAT, BHAVNAGAR VS. INCOME-TAX OFFICER, INTERNATIONAL TAXATION, RAJKOT (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ANKIT GOKANI, C.A. RESPONDENT BY : SHRI C. S. ANJARIA, D.R. DATE OF HEARING : 14-03-201 6 DATE OF PRONOUNCEMENT : 17 -03-2016 ( )/ ORDER PER ANIL CHATURVEDI, ACCOUNTANT MEMBER THESE APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER OF CIT(A), GANDHINAGAR, DATED 15.05.2013 FOR A.Y. 2011-12. 2. THE FACTS AS CULLED OUT FROM THE MATERIAL ON REC ORD ARE AS UNDER. ITA NO 312/RJT/2013 . A.Y. 2011-12 2 3. ASSESSEE FILED RETURN ON 21.04.2010 FOR BEING FR EIGHT BENEFICIARY OF M/S. MOHAR SHIPPING CORPORATION PVT. LTD., SINGAPORE WIT HOUT PAYING FREIGHT TAX AND CLAIMED DTAA BENEFIT FOR THE COUNTRY OF SINGAPORE. NOTICE WAS ISSUED U/S.172(5) OF THE ACT AND AFTER CONSIDERING THE SUB MISSIONS OF ASSESSEE, ASSESSMENT WAS FRAMED ON 26.12.2011 U/S.172(4) OF T HE ACT BY DENYING THE DTAA CLAIM AND THE TOTAL TAXABLE INCOME WAS DETERMI NED AT RS.3,52,640/-. AGGRIEVED BY THE ORDER OF A.O, ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) WHO VIDE ORDER DATED 15.05.2013 (IN APPEAL NO.: CIT (A) GNR/186/INTL.TAXN./2011-12) DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF LD. CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS:- 1. LD AO HAS ERRED IN LAW AS WELL AS ON FACTS IN A SSESSING APPELLANT U/S.172(4) OF THE IT ACT ON FREIGHT OF RS.3,52,640/- DENYING BENE FITS OF INDIA SINGAPORE DTAA AND HONBLE CIT(A) ALSO ERRED IN CONFIRMING TH E SAME. 2. LEARNED CIT(A) HAS ERRED IN LAW AS WELL AS ON F ACTS IN DENYING THE BENEFIT OF ARTICLE 8 OF THE DTAA TO THE FREIGHT BENEFICIARY ON THE BASIS THAT THE FUNDS ARE NOT REMITTED TO SINGAPORE AND APPLYING ARTICLE 24 T HOUGH THE CONDITIONS OF ARTICLE 24 DO NOT APPLY. 3. LEARNED CIT(A) HAS ERRED IN LAW AS WELL AS ON FA CTS IN HOLDING THAT THE FREIGHT BENEFICIARY HAS NOT ADHERED TO ALL THE CONDITIONS O F SINGAPORE INCOME-TAX ACT (SITA), WHICH HAVE TO BE FULFILLED FOR THE INCOME T O BE EXEMPT. 4. AT THE OUTSET BEFORE US, LD. A.R. SUBMITTED THAT ASSESSEE COULD NOT FURNISH COPY OF CHARTER PARTY AGREEMENT, COPY OF FREIGHT I NVOICES AND COPY OF BANK ADVICE SHOWING REMITTANCE MADE IN SINGAPORE BEFORE THE A.O. AND ALSO DURING APPELLATE PROCEEDINGS AS THE ASSESSEE WAS NOT IN PO SSESSION OF THESE DOCUMENTS AS ITA NO 312/RJT/2013 . A.Y. 2011-12 3 IT WAS ONLY AN AGENT AND CARRIED ON SHIPPING BUSINE SS ON OCCASIONAL BASIS. HE FURTHER SUBMITTED THAT ASSESSEE HAS NOW RECEIVED AL L THESE DOCUMENTS AND PRAYED FOR ITS ADMISSIONS AS ADDITIONAL EVIDENCE. HE FURT HER SUBMITTED THAT THESE ADDITIONAL EVIDENCES WERE IMPORTANT AND NECESSARY F OR DECIDING THE CONTROVERSY INVOLVED IN THE PRESENT GROUND. HE THEREFORE FAIRL Y SUBMITTED THAT THESE ADDITIONAL EVIDENCES BE ADMITTED AND THE MATTER MAY BE REMITTE D BACK TO CIT(A) FOR DECIDING THE ISSUE AFRESH IN THE LIGHT OF ADDITIONA L EVIDENCE. LD. D.R. ON THE OTHER HAND OBJECTED TO THE FURNISHING OF ADDITIONAL EVIDE NCES FILED BEFORE THE TRIBUNAL. HE SUBMITTED THAT SUFFICIENT OPPORTUNITY WAS GRANTE D TO THE ASSESSEE TO FILE THE EVIDENCES IN SUPPORT OF ITS CONTENTION BUT THOSE EV IDENCES WERE NOT FILED BEFORE THE LOWER AUTHORITIES. HE THUS OPPOSED THE SUBMISSI ON OF ADDITIONAL EVIDENCE. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. BEFORE US, ON BEHALF OF ASSESSEE AN APPLICATION HAS BEEN MADE FOR ADMISSION OF ADDITIONAL EVIDENCE AND IT IS SUBMITTED THAT THESE EVIDENCES WOULD BE MATERIAL AND WOULD HELP IN DECIDING THE ISSUE. CONSIDERING THE F ACT THAT THE ADDITIONAL EVIDENCES WOULD HELP IN DECIDING THE ISSUE THE SAME ARE ADMITTED. HOWEVER, SINCE THESE EVIDENCES WERE NOT AVAILABLE BEFORE LOWER AUT HORITIES, WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE AND FAIR PLAY, THE ISSUES RAISED IN THE APPEAL NEEDS TO BE CONSIDERED AFRESH IN THE LIGHT OF ADDITIONAL EVI DENCES SUBMITTED BY THE ASSESSEE. WE THEREFORE REMIT THE ISSUE TO THE FILE OF LD. CIT(A) TO DECIDE THE ISSUE ITA NO 312/RJT/2013 . A.Y. 2011-12 4 AFRESH AFTER CONSIDERING THE SUBMISSIONS OF THE ASS ESSEE AND IN ACCORDANCE WITH LAW. NEEDLESS TO STATE THAT LD. CIT(A) SHALL GRAN T ADEQUATE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. WE FURTHER DIRECT THE ASSESSE E TO CO-OPERATE BY FURNISHING PROMPTLY THE DETAILS CALLED FOR BY THE AUTHORITIES. THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 17/03/2016 (S. S. GODARA) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED. 17/03/2016 S K SINHA COPY OF THE ORDER FORWARDED TO:- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT, RAJKOT