FOSECO INTERNATIONAL LTD, MUMBAI V. DCIT (iT) CIR 2(3)(1), MUMBAI

ITA 5706/MUM/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0057 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 22-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJAT MITTAL
• Assessee Lawyers: SANJIV M SHAH
• Keywords: Double taxation relief; Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) & SHRI PAWAN SINGH (JM) I.T.A. NO. 5706 /MUM/20 16 (ASSESSMENT YEAR 20 12 - 13 ) FOSECO INTERNATIONAL LTD. C/O. SHARP AND TANNNAN RAVINDRA ANNEXE, 194 CHURCHGATE RECLAMATI ON DINSHAW VACHHA ROAD MUMBAI - 400 020. PAN : AABCF6399K V S . DCIT (INT. TAXATION) CIRCLE 2(3)(1) AIR INDIA BUILDING NARIMAN POINT MUMBAI - 400 021. ( APPELLANT ) ( RESPONDENT ) A SSESSEE BY SHRI SANJIV M. SHAH DEPARTMENT BY S HRI RAJAT MITTAL DATE OF HEARING 28 . 0 2 . 201 8 DATE OF PRONOUNCEMENT 28 . 0 2 . 201 8 O R D E R PER B.R. BASKARAN (AM) : - THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 21.6.2015 PASSED BY THE LEARNED CIT(A) - 56, MUMBAI AND IT RELATES TO A.Y. 2012 - 13. THE ONLY ISSUE URGED IN THIS APPEAL IS WHETHER THE LEARNED CIT(A) WAS JUSTIFIED IN UPHOLDING THE ACTION OF THE ASSESSING OFFICER IN NOT ADMITTING THE CLAIM PUT FORTH BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 2. LEARNED AR SUBMITTED THAT THE ASSE SSEE ERRONEOUSLY OFFERED INCOME AT HIGHER RATE OF 15.45% AS PER DTAA ENTERED BETWEEN INDIA AND U K . HOWEVER, WITHHOLDING THE TAX APPLICABLE ON THE SAID INCOME UNDER THE PROVISIONS OF S ECTION 115A(1)(B) OF THE INCOME TAX ACT IS 10.506% . A CCORDINGLY THE ASSE SSEE PUT FORTH A CLAIM BEFORE THE ASSESSING OFFICER TO APPLY PROVISIONS OF SECTION 115A(1)(B) OF THE ACT , AS IT IS MORE BENEFICIAL TO THE ASSESSEE. THE ASSESSING OFFICER REFUSED TO ADMIT SAID CLAIM BY FOLLOWING THE DECISION RENDERED BY HON'BLE SUPREME COUR T IN THE CASE OF GOETZ INDIA LTD. VS. CIT (2006) 157 TAXMAN 1. THE LEARNED CIT(A) ALSO UPHOLD THE SAME. FOSECO INTERNATIONAL LTD. 2 3. L EARNED AR SUBMITTED THAT THE DECISION RENDERED BY HON'BLE SUPREME COURT IN THE CASE OF GOETZ INDIA LTD. (SUPRA) DOES NOT IMP INGE ON THE POWER OF TH E INCOME TAX APPELLATE TRIBUNAL. HE SUBMITTED THAT THE ASSESSEE IS MA KING A CLAIM AS PER THE PROVISIONS OF THE ACT . A CCORDINGLY THE LEARNED AR SUBMITTED THAT THE TRIBUNAL MAY BE PLEASED TO ADMIT THE CLAIM OF THE ASSESSEE AND RESTORE THE SAME TO THE FILE OF THE ASSESSING OFFICER FOR ADJUDICATING THE ISSUE AFRESH. 4. WE HEARD LEARNED DR AND PERUSED THE RECORD. WE NOTICED THAT THE AS SESSEE IS PLEADING THAT ITS INCOME SHOULD BE ASSESSED AS PER PROVISIONS OF SECTION 115A(1)(B) OF THE ACT AS IT IS MORE BENEFI CIAL TO IT THAN THE RATE PRESCRIBED UNDER DTAA. ACCORDING TO LD A.R, THE ASSESSEE IS MAKING THE CLAIM IN ACCORDANCE WITH LAW . HENCE WE ADMIT THIS CLAIM OF THE ASSESSEE . SINCE THE CLAIM OF THE ASSESSEE HAS NOT BEEN EXAMINED BY THE AO, WE RESTORE THE SAM E TO THE FILE OF THE ASSESSING OFFICER IN ORDER TO EXAMINE THE CLAIM OF THE ASSESSEE . AFTER AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD, THE AO MAY TAKE APPROPRIATE DECISION IN ACCORDANCE WITH LAW. 5. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS TREA TED AS ALLOWED. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 2 8 . 0 2 .201 8 . SD/ - SD/ - (PAWAN SINGH ) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 2 8 / 0 2 / 20 1 8 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// SENIOR P RIVATE S ECRETARY PS ITAT, MUMBAI