ACIT, CHENNAI V. M/s. Sical Logistics Ltd., CHENNAI

MA 130/CHNY/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9319 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-10-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 22-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHAJI P JACOB IRS A DDL
• Assessee Lawyers: S SATHIYANAR AYANAN
• Keywords: Recovery proceedings

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI BEFORE DR. O.K. NARAYANAN, VICE-PRESIDENT AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER M.A.NO.130/MDS/2012 (IN I.T.A.NO.920/MDS/2010) ASSESSMENT YEAR : 2005-06 THE ASSISTANT COMMISSIONER OF INCOME-TAX, COMPANY CIRCLE-V(1), CHENNAI. VS. M/S. SICAL LOGISTICS LTD., 73-ARMENIAN STREET, CHENNAI 600 001. PAN AAACS 3789B. (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI SHAJI P. JACOB, IRS, A DDL. CIT RESPONDENT BY : SHRI S.SATHIYANARAYANAN, A DVOCATE DATE OF HEARING : 5 TH OCTOBER, 2012 DATE OF PRONOUNCEMENT : 11 TH OCTOBER, 2012 O R D E R PER DR. O.K. NARAYANAN, VICE-PRESIDENT THIS MISCELLANEOUS PETITION IS FILED BY THE REVENUE . IT IS A RECTIFICATION PETITION. IT IS FILED IN THE CONTEXT OF THE ORDER OF THE TRIBUNAL DATED 17 TH APRIL, 2012 PASSED IN ITA NO.920/MDS/2010. MA 130/12 :- 2 -: THE APPEAL WAS FILED BY THE ASSESSEE AND IT RELATED TO THE ASSESSMENT YEAR 2005-06. 2. NOW, THE PRAYER OF THE REVENUE IS THAT THERE IS A MISTAKE APPARENT FROM THE RECORD AS REFLECTED IN THE ORDER OF THE TRIBUNAL AND THAT MAY BE RECTIFIED. THE MISTAKE POINTED OUT BY THE REVENUE IS THAT AS PER GROUND NOS. 10.1 AND 10.2, R AISED BY THE REVENUE THE CHARTER HIRE CHARGES PAID BY THE ASSESS EE TO FOREIGN SHIPPING COMPANIES ARE COVERED UNDER ROYALTY AND THE SHIPS ARE EQUIPMENTS AND THEREFORE, THE PROVISIONS OF SEC.195 ARE VERY MUCH APPLICABLE. IT IS THE CASE OF THE REVENUE THA T THIS VIEW WAS TAKEN BY THE CHENNAI BENCH, ITAT IN THE CASE OF M/S . POOMPUHAR SHIPPING CORPORATION LTD. IN THE ORDER DATED 23.6.2 006 IN ITA NOS.2841 & 2842/MDS/2005 AND THEREFORE, THE SAID D ECISION OF THE CO-ORDINATE BENCH SHOULD HAVE BEEN ADOPTED BY T HE TRIBUNAL WHILE DISPOSING OF THE GROUNDS. IT IS THE CASE OF THE REVENUE THAT AS THE ABOVE SAID DECISION WAS VERY MUCH AVAILABLE BEFORE THE TRIBUNAL WHILE PASSING THE IMPUGNED ORDER, NOT FOLL OWING THE ORDER OF THE CO-ORDINATE BENCH IS A MISTAKE APPARENT FROM THE RECORD, AS HELD BY THE HONBLE MADRAS HIGH COURT IN THE CAS E OF CIT VS. L.G.RAMAMURTHY (110 ITR 453). MA 130/12 :- 3 -: 3. IN THE IMPUGNED ORDER, WHAT WAS CONSIDERED BY TH E TRIBUNAL, IS NOT THE LEGAL PROPOSITION, WHETHER SEC . 195 WOULD APPLY TO ASSESSEE COMING UNDER THE PURVIEW OF SEC.1 72. THE QUESTION CONSIDERED BY THE TRIBUNAL IS WHETHER A DI SALLOWANCE WAS CALLED FOR UNDER SEC.40(A)(I) FOR THE REASON OF NON-COMPLIANCE OF SEC.195, WHEN THE NON-RESIDENT CHARTERER HAS ALR EADY PAID THE TAX DUE ON THE NON-RESIDENT, BY COMPLYING WITH THE PROVISIONS OF SEC.172. THEREFORE, THE SHORT QUESTION CONSIDERED BY THE TRIBUNAL IS THAT WHEN THE TAX LIABILITY ARISING OUT OF THE S HIPMENT ENTERTAINED BY A NON-RESIDENT IS ALREADY SATISFIED, WHETHER THE RE WAS ANY REQUIREMENT OF EXAMINING THE NON-COMPLIANCE OF SEC. 195 OR NOT. 4. IN THE PRESENT CASE, THE NON-RESIDENT HAS ALREAD Y PAID THE TAX AS PROVIDED UNDER SEC.172(1). SEC. 172 PROVIDE S FOR LEVY AND RECOVERY OF TAX IN THE CASE OF SHIPPING BUSINESS OF NON-RESIDENTS. THIS SPECIAL PROVISION IS BROUGHT UNDER CHAPTER XV DEALING WITH LIABILITY IN SPECIAL CASES. SIMILAR PROVISIONS A RE PROVIDED IN THE ACT TO DEAL WITH SPECIAL CIRCUMSTANCES ARISING OUT OF THE TRANSACTIONS ENTERED INTO BETWEEN THE PARTIES. SEC .172 NOT ONLY APPLIES TO THE LEVY OF TAX BUT ALSO TO THE RECOVERY OF TAX. IN THE MA 130/12 :- 4 -: PRESENT CASE, TAX HAS BEEN RECOVERED AS PER SEC.172 . IT IS IN THE ABOVE BACKGROUND THAT THE TRIBUNAL HAS HELD THAT SE C.195 DOES NOT APPLY TO THE ASSESSEES CASE. IT IS NOT A CASE , WHERE THE TRIBUNAL HAS FAILED TO FOLLOW THE DECISION OF THE C O-ORDINATE BENCH RENDERED IN THE CASE OF M/S. POOMPUHAR SHIPPING COR PORATION LTD. 5. IT IS FURTHER TO BE OBSERVED THAT THE ISSUES RAI SED BY THE COMMISSIONER IN THE IMPUGNED REVISION ORDER HAVE AL READY BEEN ADJUDICATED BY ITAT, CHENNAI D BENCH IN ITS COMM ON ORDER DATED 4.10.2011 PASSED IN ITA NOS.1206/MDS/2011 AND 779/MDS/2011, AS FAR AS THE ASSESSMENT YEAR 2007-08 IS CONCERNED. IN THAT WAY, ON MERIT ALSO, THE POST FA CTO SITUATION REVEALS THAT THE ISSUES CONSIDERED BY THE COMMISSIO NER HAVE ALREADY BEEN DECIDED BY THE TRIBUNAL IN FAVOUR OF T HE ASSESSEE. 6. THEREFORE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT THERE IS NO ERROR APPARENT FROM THE RECOR D OF THE CASE AS FAR AS THE ORDER OF THE TRIBUNAL IS CONCERNED, EITH ER ON FACTS OR IN LAW. 7. THIS MISCELLANEOUS PETITION IS ACCORDINGLY, DISM ISSED. MA 130/12 :- 5 -: ORDER PRONOUNCED ON THURSDAY, THE 11 TH OF OCTOBER, 2012 AT CHENNAI. SD/- SD/- (CHALLA NAGENDRA PRASAD) (DR .O.K.NARAYANAN) JUDICIAL MEMBER VICE-PRESIDENT CHENNAI, DATED THE 11 TH OCTOBER, 2012 MPO* COPY TO : APPELLANT/RESPONDENT/CIT/CIT(A)/DR