Appeal details
Counselvise Citation
[2019] 115 COUNSELVISE.COM (IT) 9576 (ITAT-CUTTACK)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 year(s) 10 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
23-09-2019
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
DB
Assessment Year
2012-2013
Appeal Filed On
13-09-2017
Judgement Text
P A G E 1 | 5 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE SHRI CHANDRA MOHAN GARG , JUDICIAL MEMBER AND LAXMI PRASAD SAHU, ACCOUNTANT MEMBER M.A.NO.32/CTK/2017 (IN ITA NO . 185 /CTK/201 5) ASSESSMENT YEAR : 201 2 - 2013 M/S. OCL INDIA LTD., ADMINISTRATIVE BUILDING, AT/PO: RAJGANGPUR, DIST: SUNDARGARH. VS. DDIT (INTL. TAXATION), BHUBANESWAR. PAN/GIR NO. AAACO 1354 J (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI SOUMIN ADAK/ASHISH PODDAR , AR REVENUE BY : SHRI SUBHENDU DUTTA, DR DATE OF HEARING : 1 9 / 0 8 / 201 9 DATE OF PRONOUNCEMENT : 23 / 0 9 / 201 9 O R D E R PER C.M.GARG,JM BY WAY OF THIS MISCELLANEOUS APPLICATION , THE ASSESSEE APPLICANT DRAWS OUR ATTENTION TO AN INADVERTENT MISTAKE SAID TO HAVE COMMITTED IN TRIBUNALS ORDER DATED 7.7.2017 IN ITA NO. 185 /CTK/201 5. 2. THE MAIN CONTENTION OF LD A.R. IS THAT IN THE TRIBUNAL ORDER, IT WAS HELD THAT THE APPELLANT - ASSESS EE IN DEFAULT FOR NON - DEDUCTION OF TAX AT SOURCE U/S.195 OF THE INCOME TAX ACT, IN RESPECT OF EXPORT COMMISSION PAID M.A.NO.32/CTK/2017 (IN ITA NO.185/CTK/2015) ASSESSMENT YEAR : 2012 - 2013 P A G E 2 | 5 TO INTERNATIONAL LINK CORPORATION AND THEREBY IMPOSED DEMAND OF RS.14,21,589/ - INCLUDING INTEREST OF RS.2,75,127/ - . LD A.R. SUBMITTED THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY ORDER OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. TOSHOKU LTD, 125 ITR 525 (SC), WHEREIN, IT WAS HELD THAT IN CASE OF BUSINESS, OF WHICH ALL THE OPERATIONS ARE NOT CARRIED OUT IN INDIA, THE IN COME OF THE BUSINESS DEEMED TO ACCRUE OR ARISE IN INDIA SHALL BE ONLY SUCH PART OF THE INCOME AS IS REASONABLY ATTRIBUTABLE TO THE OPERATIONS CARRIED OUT IN INDIA. LD A.R. SUBMITTED THAT THE TRIBUNAL WAS NOT CORRECT IN DISMISSING THE GROUNDS OF THE ASSES SEE BY APPLYING THE RATIO OF THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. HAVELLS INDIA LTD., 352 ITR 376 (DEL). THEREFORE, IT IS REQUESTED TO PASS AN APPROPRIATE ORDER RECTIFYING THE AFORESAID INADVERTENT ERROR. 3. REPLYING TO ABOVE, L D D.R. SUPPORTING THE ORDER OF THE TRIBUNAL, SUBMITTED THAT AS PER LETTER DATED 21.11.2011 WRITTEN BY THE ASSESSEE TO MR JAGDISH KATARA, FACTS REVEAL THAT SHRI JAGDISH KATARA HAS BEEN APPOINTED AS AN AGENT , ON NON - EXCLUSIVE BASIS, FOR PROMOTING EXPORT OF O CLS REFRACTORIES TO IRAN FOR STEEL & NON - FERROUS INDUSTRIES AND COMMISSION @ 12% OF F.O,B VALUE OF EXPORTS AGAINST ALL ORDER RECEIVED DIRECTLY OR INDIRECTLY FROM IRAN OR FOR USE IN IRAN WAS AGREED TO BE PAID TO J.K.KATARA. LD D.R. VEHEMENTLY POINTED OUT THAT THERE IS NO IOTA OF EVIDENCE WHICH REVEALS THAT THE ASSESSEE HAS PAID COMMISSION TO M/S. INTERNATIONAL LINK CORPORATION, IRAN, WHICH DOES NOT ATTRACT PROVISIONS OF SECTION 195 OF THE ACT. LD D.R SUBMITTED THAT FOR APPLYING THE PROPOSITION OF HONBLE SUPREME COURT IN THE M.A.NO.32/CTK/2017 (IN ITA NO.185/CTK/2015) ASSESSMENT YEAR : 2012 - 2013 P A G E 3 | 5 CASE OF TOSHOKU LTD (SUPRA), IT IS THE DUTY OF THE ASSESSEE TO ESTABLISH THAT ALL THE OPERATIONS WERE NOT CARRIED OUT IN INDIA AND THE INCOME OF BUSINESS DEEMED TO ACCRUE OR ARISE IN INDIA SHALL BE ONLY SUCH PART OF THE INCOME AS IS REASONABLY ATTRIBUTABLE TO THE OPERATIONS CARRIED OUT IN INDIA LD D.R. SUBMITTED THAT IN THE PRESENT CASE, ORDER OF THE DEPARTMENTAL AUTHORITIES AS WELL AS THE TRIBUNAL CLEARLY NOTED THAT THE EXPORTS ARE FROM INDIA AND EXPORTS PROCEEDS ARE RECEIVED FROM F OREIGN COUNTRY AFTER REALIZATION FROM BUYERS AND AGENT IS PAID COMMISSION ON FIXED PERCENTAGE . THEREFORE, THE TRIBUNAL IS RIGHT IN PLACING RELIANCE ON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF HAVELLS INDIA LTD (SUPRA). 4. ON CAREFUL CONSIDERATION OF THE RIVAL SUBMISSIONS, WE ARE OF THE VIEW THAT THE ASSESSEE IS ENGAGED IN BUSINESS OF MANUFACTURING AND DEALING IN CEMENT AND REFRACTORY PRODUCTS . FOR THE SALE OF CEMENT OUTSIDE INDIA, IT ENGAGES PERSONS TO CARRY OUT THE SALES OPERATION. ON A QUERY FROM THE BENCH TO PRODUCE THE AGREEMENT, LD A.R. WAS NOT IN A POSITION TO SUBMIT ANY INFORMATION AND FURTHER CONTENTS OF THE LETTER DATED 21.11.2011 COULD NOT GIVE COMPLETE PICTURE OF RENDERING SERVICES. AS PER CLAUSE 2 OF THE APPOINTMENT LETTE R, IT WAS MENTIONED THAT THE AGENT WILL PERFORM SUCH OTHER DUTIES AS MAY BE ENTRUSTED FROM TIME TO TIME IN REGARD TO COLLECTION OF MARKET INTELLIGENCE REPORT, GENERATING ENQUIRIES, ACTIVITIES RELATING TO EXECUTING OF THE ORDER. IN THESE CIRCUMSTANCES, IN THE TRIBUNAL ORDER, RELIANCE WAS PLACED ON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF HAVELLS INDIA LTD (SUPRA), WHEREIN, IT WAS HELD THAT THE EXPORT ACTIVITY M.A.NO.32/CTK/2017 (IN ITA NO.185/CTK/2015) ASSESSMENT YEAR : 2012 - 2013 P A G E 4 | 5 HAVING TAKEN PLACE OR HAVING BEEN FULFILLED IN INDIA, THE SOURCE OF INCOME WAS LOCA TED IN INDIA AND NOT OUTSIDE. MERE FACT THAT THE EXPORT PROCEEDS EMANATED FROM PERSONS SITUATED INDIA DID NOT CONSTITUTE THEM AS THE SOURCE OF INCOME. IN THESE FACTS, WE A R E OF THE CONSIDERED VIEW THAT THE PROPOSITION RENDERED BY HONBLE SUPREME COURT IN THE CASE OF TOSHOKU LTD (SUPRA) CANNOT BE APPLIED IN FAVOUR OF THE ASSESSEE AS IN THE PRESENT CASE, THE ASSESSEE HAS NOT ESTABLISHED THAT ALL THE OPERATIONS ARE NOT CARRIED OUT IN INDIA. IN VIEW OF THE FOREGOING DISCUSSIONS, WE REACHED TO A CONCLUSION TH AT THERE IS NO APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL, WHICH REQUIRES RECTIFICATION U/S.254(2) OF THE ACT. WE HOLD THAT BY WAY OF THIS PETITION, THE ASSESSEE WANTS TO REVIEW THE ORDER OF THE TRIBUNAL IN THE GARB OF RECTIFICATION, WHICH IS NOT PERM ISSIBLE AS PER SECTION 254(2) OF THE ACT. THUS, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS DISMISSED. 5. IN THE RESULT, M.A. FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON 23 / 0 9 /201 9 . SD/ - SD/ - (LAXMI PRASAD SAHU) ( CHANDRA MOHAN GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER CUTTACK; DATED 23 / 0 9 /20 9 B.K.PARIDA, SPS M.A.NO.32/CTK/2017 (IN ITA NO.185/CTK/2015) ASSESSMENT YEAR : 2012 - 2013 P A G E 5 | 5 COPY OF THE ORDER FORWARDED TO : BY ORDER SR . PVT. S ECRETARY ITAT, CUTTACK Y 1. THE APPELLANT : M/S. OCL INDIA LTD., ADMINISTRATIVE BUILDING, AT/PO: RAJGANGPUR, DIST: SUNDARGARH. 2. THE RESPONDENT. DDIT (INTL. TAXATION), BHUBANESWAR. 3. THE CIT(A) - 1 , BHUBANESWAR 4. PR.CIT - 1 , BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//
