The ITO, (International Taxation), GANDHIDHAM V. M/s. Sea Trade Shipping, GANDHIDHAM

ITA 420/RJT/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2352 (ITAT-RAJKOT)
• Duration Of Justice: 4 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 30-12-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 03-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K CHAKRAVARTY
• Keywords: Double taxation relief; Audit objection; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH, RAJKOT [CONDUCTED THROUGH E-COURT AT AHMEDABAD] BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ ITA NO. 420/RJT/2011 ASSESSMENT YEAR : 2008-09 INCOME TAX OFFICER (INTERNATIONAL TAXATION), GANDHIDHAM VS M/S. SEA TRADE SHIPPING, DEEPAK COMPLEX, 1 ST FLOOR, NO.05, WARD-12/B, GANDHIDHAM-KUTCH AGENT OF : M.V. FREE ENVOY / (APPELLANT) / (RESPONDENT) REVENUE BY : SHRI V.K. CHAKRAVARTY, DR ASSESSEE(S) BY : NONE / DATE OF HEARING : 30/12/2015 / DATE OF PRONOUNCEMENT: 13/01/2016 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER:- THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE OR DER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), GANDH INAGAR, AHMEDABAD DATED 04.08.2011 FOR ASSESSMENT YEAR 2008- 09, ON THE FOLLOWING GROUNDS:- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DE LETING THE PENALTY LEVIED ON THE CONCEALMENT OF FREIGHT TAX PA YABLE U/S 172(3) OF THE ACT. 2. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS THAT T HERE WAS NO CONCEALMENT BY THE ASSESSEE THOUGH THE ASSESSEE HAD INTENTIONALLY CLAIMED RELIEF OF DTAA TREATY BETWEEN INDIA AND SINGAPORE, EVEN WHEN THE SHIP HAD NOT OPERATED IN INTERNATIONAL TRAFFIC. 3. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS THAT H AD FAILED TO APPRECIATE THE FINDINGS OF THE LD. CIT(A) IN THE ORDER NO ITA NO. 420/RJT/2011 ITO VS. M/S. SEA TRADE SHIPPING. AY 2008-09 2 CIT(A)/GNR/39/LNTL.TAXN/2009-10 DATED 15.12.2009 WHEREIN, THE LD. CIT(A) HAD UPHELD THE ORDER OF THE ASSESSING OFFICER SHOWING THAT THE SHIP HAD EARNED INCOME FRO M INDIAN TERRITORY WHERE THE BENEFIT OF DTAA WAS NOT AVAILAB LE, AND AS SUCH THE PRINCIPAL HAD CONCEALED THE FREIGHT TAX PA YABLE IN INDIA FOR THE PARTICULAR VOYAGE OF VESSEL. 4. THE LD CIT(A) HAS ERRED IN LAW AND ON FACTS AND INTERPRETATION ON CONCEALMENT 1981 AII-HC - MOHAMMA D IBRAHIM AZIMULLAH V/Z. CIT HAD HELD THAT 'THE DICTI ONARY MEANING OF THE WORD CONCEALMENT IS TO HIDE, TO KEEP SECRET [131 ITR 680]. 5. THE LD CIT(A) HAS ERRED IN LAW AND ON FACTS AND INTERPRETATION ON CONCEALMENT 2000 KER-HC - PC JO SEPH AND BROTHERS V/Z CIT HAD HELD THAT 'CONCEALMENT CAN BE SAID TO BE IN LAW THE INTENTIONAL SUPPRESSION OF TRUTH O R FACT KNOWN TO THE INJURY OR PREJUDICE OF ANOTHER [158 CTR 104, 243 ITR 818, 108 TAXMAN 253] 6. THE LD CIT(A) HAS ERRED IN LAW AND ON FACTS AND INTERPRETATION ON CONCEALMENT - 2004 - SC K C BUILD ERS V/Z ASSISTANT CIT HAD HELD THAT 'CONCEALMENT INHERENTLY CARRIES WITH IT THE ELEMENT OF THE MENS REA [186 CTR 721, 2 65 ITR 562, 135 TAXMAN 461]. 7. ON THE FADS AND CIRCUMSTANCES OF THE CASE LD CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE A.O. 8. IT IS THEREFORE, PRAYED THAT ME ORDER OF THE LD CIT (A) MAY BE SET-ASIDE AND THAT OF THE ASSESSING OFFICER BE REST ORED LO THE ABOVE EXTENT. 2. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL PLACED BEFORE ME. WE FIND THAT PRIMA-FACIE THIS APPEAL OF THE REVENUE IS NOT MAINTAINABLE IN VIEW OF CBDT CIRCULAR NO. 21/2015 IN F.NO.279/MISC. 142/2007-ITJ (PT) DATE D 10 TH DECEMBER 2015, VIDE WHICH IT HAS BEEN PROVIDED THAT IF THE TAX EFFECT BY VIRTUE OF THE COMMISSIONER OF INCOME-TAX (APPEALS) S ORDER IS BELOW RS.10,00,000/-, THEN THAT ORDER WOULD NOT BE CHAL LENGED BEFORE THE TRIBUNAL IN FURTHER APPEAL. THE BOARD HAS PROVIDED ITA NO. 420/RJT/2011 ITO VS. M/S. SEA TRADE SHIPPING. AY 2008-09 3 EXEMPTIONS AT CLAUSE (8) OF THE INSTRUCTIONS WHEREIN IT H AS BEEN PROVIDED THAT THESE INSTRUCTIONS WILL NOT BE APPLICABLE , IF VIRES OF ANY PROVISIONS HAS BEEN QUASHED BY IMPUGNED ORDER OR AD DITION WAS MADE ON SOME AUDIT OBJECTIONS OR THE ADDITION RELATES TO UNDISCLOSED FOREIGN ASSETS/BANK ACCOUNTS, ETC. WE FIND THAT THE P RESENT CASE DOES NOT FALL WITHIN THE EXEMPTION CLAUSE AND THE TAX IS LESS THAN RS.10,00,000/-. THEREFORE, THE PRESENT APPEAL IS NO T MAINTAINABLE AND HENCE DISMISSED. 3. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DI SMISSED IN LIMINE . ORDER PRONOUNCED IN THE COURT ON 13 TH JANUARY, 2016 AT AHMEDABAD. SD/- SD/- (ANIL CHATURVEDI) ACCOUNTANT MEMBER (KUL BHARAT) JUDICIAL MEMBER AHMEDABAD; DATED 13/01/2016 *BIJU T. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! / CONCERNED CIT 4. ! ( ) / THE CIT(A) 5. $%&'' , , / DR, ITAT, AHMEDABAD 6. &,-. / GUARD FILE. / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) ' #$%, / ITAT, AHMEDABAD