NTUC INCOME INSURANCE CO OPERATIVE LTD, MUMBAI V. DDIT (IT) 4(2), MUMBAI

ITA 4443/MUM/2015

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 0222 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 4 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2005-2006
• Appeal Filed On: 24-07-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: AGAINST TH E DATED PASSED
• Keywords: Business income; Permanent establishment; Difference of opinion; Capital Gains
• Section: 271(1)(c); 234B; 201; 274; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI RAJESH KUMAR, AM AND SHRI AMARJIT SINGH, JM / I .T.A. NO. 4443 / MUM/ 201 5 ( / ASSESSMENT YEAR: 20 05 - 06 ) NTUC INCOME INSURANCE CO - OPERATIVE LTD. C/O, BSR & CO. LLP, 5 TH FLOOR, LODHA EXCELUS, APOLO MILLS COMPOUND, NM JOSHI MARG, MAHALAKSHMI, MUMBAI - 400011 . / VS. DCIT, (INTERNATIONAL TAXATION) - 4(2) MUMBAI. ./ ./ PAN/GIR NO. : AACCN 1839 K ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 21 / 1 2 / 20 20 /DATE OF PRONOUNCEMENT: 21 / 1 2 / 20 20 / O R D E R PER AMARJIT SINGH, JM: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER DATED 30 . 0 3 .201 5 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS), 55 MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)]. RELEVANT TO THE A.Y. 2005 - 06 . 2. THE ASSESSEE HAS R AISED THE FOLLOWING GROUNDS.: - I. ON FACTS AND THE CIRCUMSTANCES OF THE EASE, AND IN LAW, THE LEARNED CIT(A) ERRED IN UPHOLDING THE ACTION OF THE LEARNED AO IN ASSESSING THE INCOME OF THE APPELLANT AT RS. 104,430,416/ - AND RAISING A TAX DEMAND OF RS.21,6I 8,036 INCLUDING INTEREST OF RS.10,699,836 UNDER SECTION 23413 OF THE ACT RELYING ON BASIS WITHOUT APPRECIATING THE FACTS OF THE APPELLANT'S CASE. AS SESSEE BY : SHRI TANG HUI SIM REVENUE BY: SHRI PRATAP SINGH (DR) ITA NO. 4443 /M/201 5 A.Y.20 05 - 06 2 2. ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE, AND IN LAW, THE LEARNED CIT(A) ERRED IN UPHOLDING THE ACTIO N OF THE LEARNED AO IN IGNORING THE EXTENT, VOLUME AND FREQUENCY OF TRANSACTIONS AND THE APPELLANT'S ACTIVITIES IN INDIA BASED ON WHICH IT CALL CONCLUDED THAT THE INCOME OF THE APPELLANT IS IN NATURE OF 'BUSINESS INCOME' NOT TAXABLE IN INDIA IN THE ABSENCE OF THE PERMANENT ESTABLISHMENT IN INDIA UNDER ARTICLE 7 OF THE DOUBLE TAXATION AVOIDANCE AGREEMENT BETWEEN INDIAN AND SINGAPORE AND INSTEAD CLASSIFIED SUCL1 INCOME AS CAPITAL GAINS' RELYING ON INCORRECT BASIS. 3. ON FACTS AND THE CIRCUMSTANCES OF THE CASE , AND IN LAW, THE LEARNED CIT(A) ERRED UPHOLDING THE ACTION OF THE LEARNED AO OF HARSHLY CHARGING INTEREST UNDER SECTION 234B OF THE ACT AFTER HAVING CONCLUDED THAT THE EARLIER OFFICER HAD, OIL OWN, INCORRECTLY APPLIED ARTICLE 13(4) OF THE TAX TREATY WITHO UT ANY DEFAULT ON THE PART OF THE APPELLANT DURING THE COURSE OF TAX ASSESSMENT. 4. ON FACTS AND THE CIRCUMSTANCES OF THE CASE, AND IN LAW, THE LEARNED CIT(A) ERRED UPHOLDING THE ACTION OF THE LEARNED AO BY INITIATING PENALTY PROCEEDINGS UNDER SECTION 274 R.S.W. 271(1)(C) OF THE ACT UPON A CLEAR DIFFERENCE OF OPINION WITHOUT APPRECIATING THAT RELEVANT COMPUTATIONS AND DISCLOSURES WERE DULY MADE IN THE RETURN OF INCOME BY RELYING ON SEVERAL JUDICIAL PRECEDENTS ISSUED ON THE SUBJECT OF FII TAXATION AND SUPPOR TING APPELLANTS CASE AT THAT POINT IN TIME. THE APPELLANT CRAVES LEAVE TO ADD TO, OR ALTER, BY DELETION, SUBSTITUTION, MODIFICATION OR OTHERWISE, THE ABOVE GROUNDS OF APPEAL, EITHER BEFORE OR DURING THE HEARING OF THE APPEAL . 3 . THE ASSESSEE HAS RAISED T HE ADDITIONAL GROUNDS.: - 1. THE A PPELLANT SUBMITS THAT RE - ASSESSMENT PROCEEDINGS WERE WITHOUT JURISDICTION, INVALID, BAD IN LAW AND THEREFORE, IN ANY EVENT THE ENTIRE RE - ASSESSMENT ITA NO. 4443 /M/201 5 A.Y.20 05 - 06 3 PROCEEDINGS OUGHT TO BE STRUCK DOWN AS INVALID AND B ED IN LAW . 4. WHEN THIS APPEAL WAS CALLED OUT FOR HEARING, THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT HE HAS FILED THE NECESSARY DECLARATION UNDER DIRECT TAX VIVAD SE VISHWAS ACT, 2020 (ACT 3 OF 2020) AND IS AWAITING FOR FINAL RESOLUTION OF THE MATTER UNDER THE SAID SCHEME. HE SUBMITTED THAT UPON COMPLETION OF THE NECESSARY FORMALITIES, HE WILL WITHDRAW THE APPEAL. IN RESPONSE TO THE SUGGESTION FROM THE BENCH, HE FAIRLY ACCEPTED THAT HE HAS NO OBJECTION TO THE APPEAL BEING DISMISSED AS WITHDRAWN AS LONG AS HIS RIGHT FOR REVIVAL OF THE APPEAL ARE PROTECTED, IN THE EVENT OF, FOR SOME UNFORTUNATE REASON, THE MATTER BEING NOT SETTLED UNDER THE VIVAD SE VISHWAS SCHEME. 5 . THE LD. DR ALSO DID NOT OBJECT TO DISGRACE SO SUGGESTED. 6 . IN VIEW OF THE ABOVE, WE DISMISS THE APPEA L AS WITHDRAWN, SUBJECT TO BE RIDER THAT IN THE UNLIKELY EVENT OF MATTER NOT BEING RESOLVED UNDER THE VIVAD SE VISHWAS SCHEME , THE ASSESSEE SHALL HAVE LIBERTY TO APPROACH THE TRIBUNAL FOR RESTORATION OF HIS APPEAL. 7 . IN THE RESULT, THE APPEAL IS DISMISSED AS WITHDRAWN SUBJECT TO THE OBSERVATION ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 21 / 1 2 /2020 SD/ - SD/ - ( RAJESH KUMAR ) (AMARJIT SINGH) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED : 21 / 12 / 2020 V IJAY PAL SINGH ( SR.PS ) ITA NO. 4443 /M/201 5 A.Y.20 05 - 06 4 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / /(DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI