ACIT, CHENNAI V. Buharia Holdings P. Ltd., CHENNAI

MA 247/CHNY/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7503 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-01-2012
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 24-10-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: DR MRS ANITA SUMANTH

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL CHENNAI C BENCH, CHENNAI. BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER & SHRI N.S. SAINI, ACCOUNTANT MEMBER M.P. NO. 247/MDS/2011 [IN I.T.A. NO. 356/MDS/2010] ASSESSMENT YEAR: 2005-06 THE ASSISTANT COMMISSIONER OF INCOME TAX, COMPANY CIRCLE I (2), CHENNAI 600 006. VS. BUHARIA HOLDINGS P. LTD., 7 TH FLOOR, NO. 4, MOORES ROAD, CHENNAI 600 034. [PAN: AAACB2679M] (APPELLANT) (RESPONDENT) REVENUE BY : SHRI SHAJI P. JACOB, SR. DR ASSESSEE BY : DR. (MRS.) ANITA SUMANTH, ADVOCATE DATE OF HEARING : 1 3 . 0 1.201 2 DATE OF PRONOUNCEMENT : 20.01.2012 ORDER PER N.S. SAINI, ACCOUNTANT MEMBER THIS MISCELLANEOUS PETITION HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF THE TRIBUNAL DATED 13.05.2011 IN I.T.A. NO . 356/MDS/2010 IN ASSESSMENT YEAR 2005-06. 2. AT THE TIME OF HEARING, THE LD. DR SHRI SHAJI P . JACOB, SR. DR REPRESENTED ON BEHALF OF THE REVENUE, SUBMITTED THA T THERE IS A TYPOGRAPHICAL ERROR IN THE FIRST PARAGRAPH OF THE O RDER OF THE TRIBUNAL, WHEREIN, INADVERTENTLY, IT HAS BEEN STATED THAT THI S IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), CHENN AI I, BUT, IN FACT, THIS IS AN M.P. NO. 247 M.P. NO. 247 M.P. NO. 247 M.P. NO. 247/M/11 /M/11 /M/11 /M/11 2 APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF T HE LD. CIT, CHENNAI I, CHENNAI. HE HAS SUBMITTED THAT THIS TYPOGRAPHICAL E RROR MAY BE RECTIFIED. 3. THE LD. DR FURTHER SUBMITTED THAT THE OTHER MIS TAKE AS STATED IN PARA 4 OF THE MP FILED BY THE REVENUE IS THAT THE TRIBUNAL HAS NOT ANSWERED THE ISSUE OF ELIGIBILITY OF THE ASSESSEE, WHO HOLDS A P ART-OWNERSHIP OF THE SHIP (I.E. 20%) TO TONNAGE TAX SCHEME UNDER SECTION 115V D OF THE INCOME TAX ACT, 1961. HE HAS VERY FAIRLY SUBMITTED THAT THIS I SSUE HAS BEEN CONSIDERED AND DECIDED BY THE TRIBUNAL IN PARA 9 PAGE 18 OF TH E ORDER OF THE TRIBUNAL. THEREFORE, HE SUBMITTED THAT HE WAS RELYING ON THE GROUND OF MP. 4. THE LD. AR, DR. (MRS.) ANITA SUMANTH, REPRESENT ED ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE ISSUE OF ELIGIBILITY OF THE ASSESSEE TO TONNAGE TAX SCHEME UNDER SECTION 115VD OF THE ACT, WHERE TH E ASSESSEE IS A PART- OWNER DOES NOT ARISE OUT OF THE ORDER OF THE LD. CI T. SHE REFERRED TO PAGE 3 OF THE ORDER OF THE LD. CIT AND STATED THAT THE LD. CIT HAS STATED AS FOLLOWS: ON THE MERITS OF THE CASE, IT IS SEEN THAT THE ASS ESSING OFFICER HAS NOT CONSIDERED THE ISSUE WHETHER A PART OWNERSH IP OF A SHIP COULD BE CONSIDERED AS OWNING AT LEAST ONE QUALIFYING SHIP (EMPHASIS SUPPLIED) UNDER CLAUSE (C) OF SECTION 115 VC.. 5. REGARDING THE FIRST MISTAKE POINTED OUT BY THE LD. DR, WE FIND THAT THERE HAS BEEN AN INADVERTENT TYPOGRAPHICAL ERROR M ENTIONED IN PARA 1 PAGE 1 OF THE ORDER OF THE TRIBUNAL THAT THIS IS AN APP EAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) CHENNAI I.. W E RECTIFY THIS MISTAKE AND M.P. NO. 247 M.P. NO. 247 M.P. NO. 247 M.P. NO. 247/M/11 /M/11 /M/11 /M/11 3 IN ITS PLACE THE FOLLOWING SHALL BE SUBSTITUTED: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE LD. CIT CHENNAI I 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND MATERIAL AVAILABLE ON RECORD. THE ONLY OTHER MISTAKE POINTED OUT IN THE MISCELLANEOUS PETITION IS THAT T HE TRIBUNAL HAS NOT ANSWERED THE ISSUE OF ELIGIBILITY OF THE ASSESSEE, WHO HOLDS A PART-OWNERSHIP OF THE SHIP (I.E. 20%) TO TONNAGE TAX SCHEME UNDER SECTION 115VD OF THE INCOME TAX ACT, 1961. THE LD. DR HAS VERY FAIRLY CO NCEDED THAT THE ISSUE OF ELIGIBILITY OF THE ASSESSEE, WHO HOLDS A PART- OWNE RSHIP OF THE SHIP (I.E. 20%) TO TONNAGE TAX SCHEME UNDER CLAUSE (C) OF SECTION 1 15VC HAS BEEN CONSIDERED AND DECIDED BY THE TRIBUNAL AT PARA 9 PA GE 18 OF THE TRIBUNALS ORDER DATED 13.05.2011 PASSED IN I.T.A. NO. 356/MDS /2010 IN ASSESSMENT YEAR 2005-06. THE SAID PARA 9 AT PAGE 18 READS AS F OLLOWS: 9. SEC.115VC ENVISAGES THAT A QUALIFYING COMPANY OWNS AT LEAST ONE QUALIFYING SHIP. THIS HAS BEEN ENACTED WI TH REFERENCE TO THE FACT THAT SUCH QUALIFYING COMPANY MAY OPERAT E OTHER QUALIFYING SHIP BY CHARTERING THE QUALIFYING SHIPS. WE FIND THAT THE STRESS IS ON OWNING OF A QUALIFYING SHIP AND HAS NO T BEEN PROVIDED THAT IT SHOULD FULLY OWN A QUALIFYING SHIP AND ON PARTLY OWNING A QUALIFYING SHIP THE ASSESSEE WILL NOT BE A QUALIFYING COMPANY. 7. THAT BEING SO, THE MISCELLANEOUS PETITION WITH REGARD TO SECOND MISTAKE POINTED OUT IN THE ORDER OF THE TRIBUNAL BY THE REVENUE IS DISMISSED. 8. IN THE RESULT, THE MISCELLANEOUS PETITION OF TH E REVENUE IS PARTLY M.P. NO. 247 M.P. NO. 247 M.P. NO. 247 M.P. NO. 247/M/11 /M/11 /M/11 /M/11 4 ALLOWED. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 20.01.2012. SD/- SD/- (HARI OM MARATHA) JUDICIAL MEMBER (N.S.SAINI) ACCOUNTANT MEMBER CHENNAI, DATED, THE 20.01.2012 VM/- TO: THE ASSESSEE//A.O./CIT(A)/CIT/D.R.