ADIT, Dehradun V. M/s. Seacore Offshore Dubai LLC, Dehradun

ITA 6394/DEL/2012

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3547 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 1 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 07-06-2017
• Assessment Year: 2004-2005
• Appeal Filed On: 26-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GAURAV DUDEJA
• Keywords: Period of limitation; Condonation of delay
• Section: 234B

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL, DELHI BENCH G, NEW DELHI BEFORE : SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA NO. 6394/DEL./2012 ASSESSMENT YEAR: 2004-05 ADIT (INTL. TAXATION), DEHRADUN. (APPELLANT) VS. SEACORE OFFSHORE DUBAI LLC, (FORMERLY KNOWN AS SEABULK OFFSHORE DUBAI LLC), C/O NANGIA & CO. 75/7, RAIPUR ROAD, DEHRADUN. PAN- AAGCS3112G (RESPONDENT) APPELLANT BY SHRI GAURAV DUDEJA, SR. DR RESPONDENT BY SHRI AMIT ARORA, C.A. ORDER PER L.P. SAHU, A.M.: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-II, DEHRADUN DATED 12.10.2012 FOR THE ASSESSMENT YEAR 2 004-05 ON THE FOLLOWING GROUNDS : 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN HOLDING THAT RECEIPTS OF ASSESSEE AS A SUB CONTRACTOR FOR RENTAL OF VESSELS IS NOT ROYALTY U/S 9(1)(VI) OF THE ACT. 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN HOLDING THAT THE RECEIPTS ON ACCOUNT OF HI RE OF VESSEL 'MV SEABULK DATE OF HEARING 30.11.2017 DATE OF PRONOUNCEMENT 01 .02.2018 ITA NO. 6394/DEL./2012 2 HERCULES' TO ARCADIA AND 'MV SEABULK MANROE' TO PGS WAS NOT IN THE NATURE OF ROYALTY U/S 9(1)(VI) OF THE I.T. ACT, 1961 AND ELIGIBLE FOR 44BB. 3. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT (A) HAS ERRED IN NOT APPRECIATING THE FINDING GIVEN BY THE AO WHO HAD HELD THAT THE ROYALTY RECEIVED BY THE ASSESSEE WHICH IS A NON -RESIDENT COMPANY FROM ANOTHER NON-RESIDENT COMPANY WAS CORRECTLY ESTIMATE D @ 25% OF GROSS RECEIPTS AS PER THE REQUIREMENTS OF RULE 10 OF THE INCOME TAX RULES, 1962, IN THE ABSENCE OF BOOKS OF ACCOUNTS AND TAXED ACCOR DINGLY. 4. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE THE CIT (A) HAS ERRED IN IGNORING THE DISTINCT SCHEME OF TAXATION O F FTS/ROYALTY AND HOLDING THAT THE INCOME OF THE ASSESSEE WAS TAXABLE UNDER THE PRESUMPTIVE PROVISIONS OF SEC. 44BB, DISREGARDING T HE INSERTION OF PROVISO IN SECTION 44BB/44DA/115A AND THE RATIONALE BEHIND THE INTRODUCTION OF SAID CLARIFICATORY PROVISO'S IN THE FINANCE BILL 20 10. 5. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE, THE CIT(A) HAS ERRED IN HOLDING THAT RETROSPECTIVELY CANNOT BE REA D INTO THE AMENDMENTS OF FINANCE ACT, 2010 INSERTING PROVISO TO SECTION 4 4BB/44DA/115A EVEN THOUGH THESE WERE CLARIFICATORY AND THEIR APPLICATI ON HAS TO BE READ INTO ACT AS PER HON'BLE SUPREME COURT DECISION IN THE CA SE OF SEDCO FOREX INTERNATIONAL DRILLING VS. CIT AND OTHERS. 6. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN HOLDING THAT INTEREST U/S 234B WAS NOT CHA RGEABLE IN THIS CASE BY RELYING UPON THE DECISION OF HON'BLE UTTARAKHAND HI GH COURT IN THE CASE OF MAERSK (334 1TR 79) WHERE AS THE DEPARTMENT HAS CONT ESTED THE ISSUE AND HAS FILED SLP BEFORE THE APEX COURT AGAINST IN THE CASE OF JACOBS CIVIL INCORPORATED/ MITSUBISHI INVOLVING SIMILAR ISSUE . 2. THE REGISTRY HAS REPORTED THAT THIS APPEAL OF THE R EVENUE IS TIME BARRED BY TWO DAYS. THE DEFECT SO POINTED OUT APPEARS TO H AVE BEEN COMMUNICATED TO THE APPELLANT. WE, HOWEVER, FIND THAT THE REVENUE H AS NEITHER FILED ANY APPLICATION FOR CONDONATION OF DELAY NOR HAS ASSIGN ED ANY REASON FOR THIS ITA NO. 6394/DEL./2012 3 NOMINAL DELAY DURING THE COURSE OF HEARING. WE ARE, THEREFORE, INCLINED TO DISMISS THIS APPEAL AS BARRED BY LIMITATION WITH LI BERTY TO THE DEPARTMENT TO GET THIS ORDER RECALLED, IF THE DEFECT, POINTED OUT ABOVE, IS REMOVED BY ASSIGNING THE REASON WHICH PREVENTED TO FILE THE AP PEAL WITHIN THE PERIOD OF LIMITATION. WE ORDER ACCORDINGLY. 3. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 1 ST FEBRUARY, 2018. SD/- SD/- (H.S. SIDHU) (L.P. SAHU) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 01.02.2018 *AKS* COPY OF ORDER FORWARDED TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES, NEW DELHI