M/s. SBS Marine Ltd., Aberdeen V. ADIT, Dehradun

ITA 4415/DEL/2012

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6724 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 5 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 16-06-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 16-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUJ ARORA CIT INTT
• Keywords: Application of stay; Revised return
• Section: 234B; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D, NEW DELHI BEFORE SH. N. K.SAINI, ACCOUNTANT MEMBER AND SMT. BEENA A. PILLAI, JUDICIAL MEMBER I.T.A. NO. 4415/DEL/2012 (ASSESSMENT YEAR 2004-05); I.T.A. NO. 4416/DEL/2012 (ASSESSMENT YEAR 2009-10) AND I.T.A. NO. 6762/DEL/2013 (ASSESSMENT YEAR 2010-11) ALOGWITH SA NO. 302/DEL/2014 & MA NO. 179/DEL/2014 SBS MARINE LTD. NOW KNOWN AS VIKING SUPPLY SHIPS LTD., OLD STONEYWOOD CHURCH, BHANKHEAD ROAD, BUCKSBURN, ABERDEEN GIR/PAN : AAICS2595R (APPELLANT) VS. ADIT (INTERNATIONAL TAXATION) DEHRADUN (RESPONDENT) SBS MARINE LTD. OLD STONEYWOOD CHURCH, BHANKHEAD ROAD, BUCKSBURN, ABERDEEN GIR/PAN : AAICS2595R (APPELLANT) VS. ADIT (INTERNATIONAL TAXATION) DEHRADUN (RESPONDENT) VIKING SUPPLY SHIPS LTD. (FORMALLY KNOWN AS SBS MARINE LTD.) OLD STONEYWOOD CHURCH, BHANKHEAD ROAD, BUCKSBURN, ABERDEEN GIR/PAN : AAICS2595R (APPELLANT) VS. ADIT (INTERNATIONAL TAXATION) DEHRADUN (RESPONDENT) ITA NO. 4415-4416/DEL/2012, 6762/DEL/2013 PAGE 2 OF 13 APPELLANT BY : SH. ROHIT TIWARI, MS. SHRUTI KHIMTA, CAS. RESPONDENT BY : SH. ANUJ ARORA, CIT (INTT.) DR. DATE OF HEARING : 02.02.2017 DATE OF PRONOUNCEMENT: 10.02.2017 ORDER PER BENCH: 1. T HE PRESENT APPEALS HAVE BEEN FILED BY ASSESSEE AGAI NST THE FINAL ASSESSMENT ORDER PASSED BY LD.AO PURSUANT TO DRP DIRECTION, THE DETAILS OF WHICH ARE AS UNDER: S. NO . ASST. YR IMPUGNED ORDER DATED 1. 2004 - 05 19. 07 . 2012 2. 2009 - 10 19 . 07 . 2012 3. 2010 - 11 20.11. 2013 2. IT HAS BEEN SUBMITTED BY LD. AR THAT ASSESSEE WAS FORMERLY KNOWN AS SBS MARINE LTD. AT THE OUTSET LD. AR SUBMITTED THAT ISSUES ARE COVERED BY DECISION OF HONBLE UTTARAKHAND HIGH COURT IN ASSESSEES OWN CASE VIDE ORDER DATED 06.08.2015. WE ARE THEREFORE, INCLINED TO DIS POSE OF ALL THESE APPEALS BY WAY OF A COMMON ORDER FOR THE SAKE OF CONVENIENCE. ITA NO. 4415/DEL/2012 (ASSESSMENT YEAR 2004-05) ITA NO. 4415-4416/DEL/2012, 6762/DEL/2013 PAGE 3 OF 13 3. THE GROUNDS RAISED BY THE ASSESSEE FOR THE YEAR UN DER CONSIDERATION ARE AS UNDER: GROUND NO. 1 ON THE FACTS, IN LAW AND IN THE CIRCUMSTANCES OF TH E CASE, THE DISPUTE RESOLUTION PANEL ('DRP')/ASST. DIRECTOR OF INCOME TAX, INTERNATIONAL TAXATION, DEHRADUN ('ASSESSING OFFICER') HAS ERRED IN UPHOLDI NG THE VALIDITY OF RE-OPENING OF THE ASSESSMENT AND ASSUMING JURISDICTION UNDER SECTION 147 READ WITH SECTION 148 OF THE INCOME-TAX ACT, 1961 ('THE ACT') . YOUR APPELLANT PRAYS THAT THE ORDER PASSED UNDER SECTION 143(3} / 147 READ WITH SECTION 144C OF THE ACT IS BAD IN LAW AND MERITS TO BE QUASHED. GROUND NO. 2 ON THE FACTS, IN LAW AND IN THE CIRCUMSTANCES OF TH E CASE, THE DRP/ASSESSING OFFICER ERRED IN HOLDING TH AT THE INCOME ARISING TO THE APPELLANT FROM RENDERING OF MARINE LOGISTIC SERVICES CANNOT BE COMPUTED BY APPLYING THE PROVISIONS OF SECTION 44BB OF THE ACT AND THAT THE SERVICES PROVIDED BY THE APPELLANT IS NOT COVERED BY SECTION 44BB OF THE ACT. GROUND NO. 3 ON THE FACTS, IN LAW AND IN THE CIRCUMSTANCES OF TH E CASE, THE LEARNED DRP/ASSESSING OFFICER ERRED IN ASSESSING THE INCOME EARNED BY THE APPELLANT AS FEE S FOR TECHNICAL SERVICES/ROYALTY AS PER THE PROVISION S OF SECTION 9(1)(VII)/9(1)(VI)OF THE ACT. ITA NO. 4415-4416/DEL/2012, 6762/DEL/2013 PAGE 4 OF 13 GROUND NO. 4 ON THE FACTS, IN LAW AND IN CIRCUMSTANCES OF THE CA SE, THE LEARNED DRP/ASSESSING OFFICER ERRED IN ESTIMATI NG THE INCOME OF THE APPELLANT ON AD HOC BASIS AT 25% OF THE GROSS RECEIPTS AND ASSESSING THE INCOME EARNED BY THE APPELLANT UNDER SECTION 44DA OF THE ACT. GROUND NO. 5 ON THE FACTS, IN LAW AND IN CIRCUMSTANCES OF THE CA SE, THE LEARNED ASSESSING OFFICER ERRED IN LEVYING INTE REST UNDER SECTION 234B OF THE ACT. GROUND NO. 6 ON THE FACTS, IN LAW AND IN CIRCUMSTANCES OF THE CA SE, THE LEARNED ASSESSING OFFICER ERRED IN LEVYING INTE REST UNDER SECTION 234D OF THE ACT. 4. INSOFAR AS GROUND NO. 1 IS CONCERNED, NO ARGUMENT HAS BEEN ADVANCED BY LD. AR AS THE ISSUE HAS BEEN DECID ED IN FAVOUR OF ASSESSEE BY HONBLE HIGH COURT ON MERITS. WE ARE THEREFORE, INCLINED NOT TO ADJUDICATE UPON THIS ISS UE AT THIS STAGE. GROUND NO. 2 5. LD. AR HAS SUBMITTED THAT THIS ISSUE HAS BEEN CONSIDERED BY HONBLE UTTARAKHAND HIGH COURT AS UNDER: 4. IN THE LIGHT OF THE JUDGMENT OF THE HONBLE APEX COURT IN CIVIL APPEAL NO. 731 OF 2007 AND CONNECTED CASES (OIL & NATURAL GAS CORPORATION LIMITED VS. COMMISSIONER OF INCOME TAX & ANOTHER), THE SUBSTANTIAL QUESTIONS OF LAW RELATING TO THE ITA NO. 4415-4416/DEL/2012, 6762/DEL/2013 PAGE 5 OF 13 ASSESSABILITY OF THE AMOUNTS UNDER SECTION 44BB HAV E TO BE ANSWERED AGAINST THE APPELLANT/REVENUE. ACCORDINGLY, WE ANSWER THE SAID QUESTIONS OF LAW AGAINST THE REVENUE IN THE LIGHT OF THE AFORESAID JUDGMENT OF THE HONBLE APEX COURT. 6. ON THE CONTRARY, LD. DR SUPPORTED THE ORDER PASSED BY THE ASSESSING OFFICER. 7. WE HAVE PERUSED THE SUBMISSIONS ADVANCED BY BOTH T HE SIDES IN THE LIGHT OF RECORDS PLACED BEFORE US AND THE DECISION OF HONBLE UTTARAKHAND HIGH COURT. IT IS OBSERVED T HAT THE FACTS AND CIRCUMSTANCES ARE SIMILAR AND LD. DR HAS NOT BROUGHT ON RECORD ANY DISTINGUISHING MATERIALS. RE SPECTFULLY FOLLOWING HONBLE UTTARAKHAND HIGH COURT WE ALLOW T HIS GROUND RAISED BY THE ASSESSEE. GROUND NO. 3, 4 AND 6 8. AS WE HAVE DECIDED GROUND NO. 2 IN FAVOUR OF ASSES SEE, THESE GROUNDS BECOME PURELY ACADEMIC IN NATURE. WE ARE, THEREFORE, NOT INCLINED TO ADJUDICATE UPON THEM. GROUND NO. 5 9. IT HAS BEEN SUBMITTED BY LD. AR THAT HONBLE HIGH COURT IN ASSESSEES OWN CASE HAS HELD AS UNDER: IN RELATION TO THE SUBSTANTIAL QUESTIONS OF LAW REL ATING TO SECTION 234B, WE REMIT THE MATTER BACK TO THE ASSESSING OFFICER TO CONSIDER WHETHER THERE IS ANY ITA NO. 4415-4416/DEL/2012, 6762/DEL/2013 PAGE 6 OF 13 LIABILITY UNDER SECTION 234B ON THE BASIS THAT THE AMOUNTS IN QUESTION WOULD FALL TO BE ASSESSED UNDER SECTION 44BB OF THE ACT. 10. RESPECTFULLY FOLLOWING THE SAME WE SET ASIDE THIS ISSUE BACK TO THE FILE OF LD. AO FOR RECONSIDERATION AS P ER THE DIRECTIONS OF UNDOABLE HIGH COURT HEREINABOVE. IN T HE RESULT THIS GROUND RAISED BY THE ASSESSEE STANDS ALLOWED F OR STATISTICAL PURPOSES. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE STAN DS ALLOWED. ITA.4416/DEL/2012 (ASSESSMENT YEAR 2009-10) 11. GROUNDS RAISED BY ASSESSEE FOR THE YEAR UNDER CONSIDERATION ARE AS UNDER: GROUND NO. 1 ON THE FACTS, IN LAW AND IN THE CIRCUMSTANCES OF TH E CASE, THE LEARNED DISPUTE RESOLUTION PANEL ('DRP')/ASST. DIRECTOR OF INCOME TAX, INTERNATIONAL TAXATION, DEHRADUN ('ASSESSING OFFICER') ERRED IN HOLDING THAT THE INCOME ARISING TO THE APPELLANT FR OM RENDERING OF MARINE LOGISTIC SERVICES CANNOT BE COMPUTED BY APPLYING THE PROVISIONS OF SECTION 44BB OF THE ACT AND THAT THE SERVICES PROVIDED BY THE APPELLANT IS NOT COVERED BY SECTION 44BB OF THE ACT . GROUND NO. 2 ON THE FACTS, IN LAW AND IN CIRCUMSTANCES OF THE CASE, THE LEARNED DRP/ ASSESSING OFFICER ERRED IN ITA NO. 4415-4416/DEL/2012, 6762/DEL/2013 PAGE 7 OF 13 ASSESSING THE INCOME EARNED BY THE APPELLANT AS FEES FOR TECHNICAL SERVICES / ROYALTY AS PER THE PROVISIONS OF SECTION 9(1)(VII)/9(1)(VI) OF THE ACT . GROUND NO. 3 ON THE FACTS, IN LAW AND IN CIRCUMSTANCES OF THE CASE, THE LEARNED DRP/ASSESSING OFFICER ERRED IN ESTIMATING THE INCOME OF THE APPELLANT ON AD HOC BASIS AT 25% OF THE GROSS RECEIPTS AND ASSESSING TH E INCOME EARNED BY THE APPELLANT UNDER SECTION 44DA OF THE ACT. GROUND NO. 4 ON THE FACTS, IN LAW AND IN CIRCUMSTANCES OF THE CASE, THE LEARNED DRP / ASSESSING OFFICER ERRED IN NOT ACCEPTING THE REVISED COMPUTATION OF INCOME SUBMITTED BY THE APPELLANT DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS. GROUND NO. 5 ON THE FACTS, IN LAW AND IN CIRCUMSTANCES OF THE CASE, THE LEARNED ASSESSING OFFICER ERRED IN LEVYIN G INTEREST UNDER SECTION 234A OF THE ACT. GROUND NO. 6 ON THE FACTS, IN LAW AND IN CIRCUMSTANCES OF THE CASE, THE LEARNED ASSESSING OFFICER ERRED IN LEVYIN G INTEREST UNDER SECTION 234B OF THE ACT. GROUND NO. 1 12. THIS ISSUE HAS ON ALREADY BEEN CONSIDERED BY US FO R ASSESSMENT YEAR 2004-05 IN GROUND NO. 2 ABOVE. FOLL OWING ITA NO. 4415-4416/DEL/2012, 6762/DEL/2013 PAGE 8 OF 13 THE SAME WE ARE INCLINED TO ALLOW THIS GROUND OF AP PEAL RAISED BY THE ASSESSEE. GROUND NO. 2 13. AS WE HAVE DECIDED GROUND NO. 1 IN FAVOUR OF ASSES SEE, THESE GROUNDS BECOME PURELY ACADEMIC IN NATURE. WE ARE, THEREFORE, NOT INCLINED TO ADJUDICATE UPON THEM. GROUND NO. 3 14. LD. AR SUBMITTED THAT THE ASSESSING OFFICER REJECT ED THE REVISED COMPUTATION OF INCOME THAT WAS SUBMITTED DU RING THE COURSE OF ASSESSMENT PROCEEDINGS. IT IS SUBMITTED T HAT IT WAS BROUGHT TO THE KNOWLEDGE OF THE ASSESSING OFFICER T HAT ASSESSEE HAD INADVERTENTLY OFFERED AND INCOME FROM INVOICE NUMBER A80196 TWICE WHILE PREPARING THE COMPUTATION OF INCOME. DRP DEALT WITH THE ISSUE AS UNDER: 5. THIS OBJECTION RELATES TO REJECTION OF A REVISE D COMPUTATION OF INCOME SUBMITTED BY THE ASSESSEE DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS. IT IS STATED THAT THE ASSESSEE NOTICED A MISTAKE IN THE COMPUTATION OF INCOME MADE BY IT AT THE TIME OF FIL ING OF RETURN AND SOUGHT TO FILE A REVISED COMPUTATION OF INCOME DURING THE ASSESSMENT PROCEEDINGS BEFORE THE A. O. THE A. O HOWEVER REJECTED THE CLAIM RELYING ON T HE DECISION OF THE SUPREME COURT IN THE CASE OF GOETZE (INDIA) [284 ITR 323 SC]. IT HAS BEEN SUBMITTED THA T THE ITA NO. 4415-4416/DEL/2012, 6762/DEL/2013 PAGE 9 OF 13 ASSESSEES CASE IS NOT COVERED BY THE ABOVE DECISIO N. THE SUBMISSIONS HAVE BEEN CONSIDERED BY THIS PANEL. HOWEVER A PERUSAL OF THE ORDER OF THE SUPREME COURT LEAVES NO DOUBT THAT AFTER A RETURN OF INCOME HAS B EEN FILED A FURTHER DEDUCTION CAN BE CLAIMED ONLY BY WA Y OF FILING A REVISED RETURN OF INCOME. IN VIEW OF THIS THE OBJECTION MADE BY THE ASSESSEE ON THIS POINT IS REJ ECTED. 15. LD. AR SUBMITTED THAT THE DECISION OF HONBLE SUPR EME COURT IN THE CASE OF GOETZ INDIA LTD (SUPRA) RELIED UPON BY DRP ARE ON A DIFFERENT FACT AND REISSUE THEREIN CAN NOT BE APPLIED TO THE FACTS OF THE PRESENT CASE. 16. ON THE CONTRARY, LD. DR SUPPORTED THE ORDERS PASSE D BY THE AUTHORITIES BELOW. 17. WE HAVE PERUSED THE SUBMISSIONS ADVANCED BY BOTH T HE SIDES IN THE LIGHT OF THE DECISIONS RELIED UPON BY THEM. 18. IT IS OBSERVED FROM THE RECORDS PLACED BEFORE US T HAT ASSESSEE HAD RECTIFIED A FACTUAL MISTAKE IN THE COM PUTATION OF INCOME, WHILE THE ASSESSMENT PROCEEDINGS WERE PENDI NG. WHEREAS IN THE CASE BEFORE HONBLE SUPREME COURT IN GOETZ INDIA LTD., (SUPRA) THE QUESTION THAT AROSE WAS, WHETHER A CLAIM COULD BE RAISED OTHER THAN BY FILING REVISED RETURN. WE AGREE WITH LD. AR THAT THE DECISION OF HONBLE SUPR EME COURT IN GOETZ INDIA LTD., ( SUPRA ) CANNOT BE APPLIED TO THE FACTS OF THE PRESENT CASE. IN ORDER TO SAFEGUARD THE INTERES T OF THE ITA NO. 4415-4416/DEL/2012, 6762/DEL/2013 PAGE 10 OF 13 REVENUE WE ARE INCLINED TO SET ASIDE THIS ISSUE TO LD. AO FOR DUE VERIFICATION OF FACTS AND TO CONSIDER THE CLAIM OF ASSESSEE AS PER LAW. ACCORDINGLY THIS GROUND RAISED BY THE ASSESSEE STAN DS STATISTICALLY ALLOWED. ITA NO. 6762/DEL/2013 (ASSESSMENT YEAR 2010-11) 19. GROUNDS RAISED BY THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION ARE AS UNDER: GROUND NO.1 ON THE FACTS, IN LAW AND IN THE CIRCUMSTANCES OF T HE CASE, THE LEARNED DISPUTE RESOLUTION PANEL ('DRP')/ ASST. DIRECTOR OF INCOME TAX, INTERNATIONAL TAXATIO N, DEHRADUN ('ASSESSING OFFICER') ERRED IN HOLDING THA T THE INCOME ARISING TO THE APPELLANT FROM RENDERING OF MARINE LOGISTIC SERVICES CANNOT BE COMPUTED BY APPLYING THE PROVISIONS OF SECTION 4466 OF THE ACT AND THAT THE SERVICES PROVIDED BY THE APPELLANT IS NOT COVERED BY SECTION 44BB OF THE ACT. GROUND NO. 2 ON THE FACTS, IN LAW AND IN CIRCUMSTANCES OF THE CA SE, THE LEARNED DRP/ ASSESSING OFFICER ERRED IN ASSESSI NG THE INCOME EARNED BY THE APPELLANT AS FEES FOR TECHNICAL SERVICES / ROYALTY AS PER THE PROVISIONS OF SECTION 9(I)(VII) / 9(I)(VI) OF THE ACT. GROUNDNO.3 ON THE FACTS, IN LAW AND IN CIRCUMSTANCES OF THE CA SE, THE LEARNED DRP/ASSESSING OFFICER ERRED IN ESTIMATI NG ITA NO. 4415-4416/DEL/2012, 6762/DEL/2013 PAGE 11 OF 13 THE INCOME OF THE APPELLANT ON AD HOC BASIS AT 25% OF THE GROSS RECEIPTS AND ASSESSING THE INCOME EARNED BY THE APPELLANT UNDER SECTION 44DA OF THE ACT. GROUND NO. 4 ON THE FACTS, IN LAW AND IN CIRCUMSTANCES OF THE CA SE, THE LEARNED ASSESSING OFFICER ERRED IN LEVYING INTE REST UNDER SECTION 234A OF THE ACT. GROUND NO. 5 ON THE FACTS, IN LAW AND IN CIRCUMSTANCES OF THE CA SE, THE LEARNED ASSESSING OFFICER ERRED IN LEVYING INTEREST UNDER SECTION 234B OF THE ACT. GROUND NO. 6 ON THE FACTS, IN LAW AND IN CIRCUMSTANCES OF THE CASE, THE LEARNED ASSESSING OFFICER ERRED IN NOT GRANTING CREDIT FOR TAX DEDUCTED AT SOURCE (TDS) AMOUNTING T O RS. 18,644,379. GROUND NO. 7 ON THE FACTS, IN LAW AND IN CIRCUMSTANCES OF THE CA SE, THE LEARNED ASSESSING OFFICER ERRED IN LEVYING INTE REST UNDER SECTION 234D OF THE ACT. GROUND NO. 1 20. THIS ISSUE HAS ALREADY BEEN CONSIDERED BY US FOR ASSESSMENT YEAR 2004-05 IN GROUND NO. 2 AND GROUND NO. 1 FOR ASSESSMENT YEAR 2009-10 ABOVE. FOLLOWING THE SA ME WE ARE INCLINED TO ALLOW THIS GROUND OF APPEAL RAISED BY THE ASSESSEE. ITA NO. 4415-4416/DEL/2012, 6762/DEL/2013 PAGE 12 OF 13 GROUND NO. 2 AND 3 21. AS WE HAVE DECIDED GROUND NO. 1 IN FAVOUR OF ASSES SEE, THESE GROUNDS BECOME PURELY ACADEMIC IN NATURE. WE ARE, THEREFORE, NOT INCLINED TO ADJUDICATE UPON THEM. GROUND NO. 4 AND 5 22. THIS ISSUE HAS BEEN CONSIDERED BY US FOR ASSESSMEN T YEAR 2004-05 IN GROUND NO. 6 ABOVE. FOLLOWING THE S AME WE ARE INCLINED TO SET ASIDE THESE GROUNDS TO ASSESSIN G OFFICER. ACCORDINGLY THESE GROUNDS RAISED BY THE ASSESSEE ST ANDS ALLOWED FOR STATISTICAL PURPOSES. GROUND NO. 6 AND 7 23. IT HAS BEEN SUBMITTED BY LD. AR THAT ASSESSEE HAS PREFERRED RECTIFICATION APPLICATION BEFORE ASSESSIN G OFFICER ALONG WITH THE ORIGINAL TDS CERTIFICATE AND IS PEND ING. 24. WE ARE, THEREFORE, NOT INCLINED TO ADJUDICATE THIS ISSUE. THE ASSESSING OFFICER IS DIRECTED TO PASS NECESSARY ORDERS AFTER DUE VERIFICATION OF FACTS AS PER LAW. 25. IT IS OBSERVED FROM RECORDS PLACED BEFORE US THAT ASSESSEE HAS PREFERRED A STAY APPLICATION AND A MISCELLANEOUS APPLICATION FOR THIS YEAR UNDER CONSI DERATION BEING SA NO. 302/DEL/2014 & MA NO. 179/DEL/14. AS W E HAVE DISPOSED OFF THE APPEAL IN THE ABOVE PARAGRAPH S, THE ITA NO. 4415-4416/DEL/2012, 6762/DEL/2013 PAGE 13 OF 13 STAY AND MISCELLANEOUS APPLICATIONS BECOME INFRUCTO US. ACCORDINGLY THE SAME IS DISMISSED. IN THE RESULT APPEAL FILED BY THE ASSESSEE FOR ALL THE YEARS UNDER CONSIDERATION STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH FEBRUARY, 2017. SD/- SD/- (N. K. SAINI) (BEENA A. PILLAI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 10.02.2017 @M!T COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI)