IAL Shipping Agencies(Kochi) Ltd, Cochin V. ACIT, Ernakulam

MA 84/COCH/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9665 (ITAT-COCHIN)
• Duration Of Justice: 2 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-12-2012
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2002-2003
• Appeal Filed On: 24-09-2012
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Assessee Lawyers: RAM GOPAL SHARMA
• Keywords: Double taxation relief

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI N.R.S.GANESAN, JM AND B.R.BASKAR AN, AM M.P. NO. 84/COCH/2012 (ARSG. OUT OF I.T.A. NO. 79/COCH/2011 ASSESSMENT YEAR : 2002-03 M/S. I.A.L. SHIPPING AGENCIES (KOCHI) LTD., 6 TH FLOOR, METRO PLAZA, MARKET ROAD, COCHIN-14. [PAN:AAACI 5752Q] VS. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-1(2), ERNAKULAM. (ASSESSEE-APPELLANT) (REVENUE- RESPONDENT) ASSESSEE BY SHRI RAM GOPAL SHARMA, REVENUE BY SMT. S. VIJAYAPRABHA, JR. DR DATE OF HEARING 07/12//2012 DATE OF PRONOUNCEMENT 14/12/2012 O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE ASSESSEE HAS MOVED THIS MISCELLANEOUS PET ITION WITH A REQUEST TO RECALL THE ORDER DATED 20-07-2012 PASSED BY THIS TRIBUNAL ON T HE APPEAL PREFERRED BY THE REVENUE FOR THE ASSESSMENT YEAR 2002-03. 2. THE LD. COUNSEL APPEARING FOR THE ASSESSEE SUBM ITTED THAT THE ASSESSEE IS ELIGIBLE FOR EXEMPTION FROM INCOME TAX AS PER THE P ROVISIONS OF DTAA ENTERED BETWEEN INDIA AND UK AND FURTHER, THE DECISION RENDERED BY THE MUMBAI BENCH OF THE ITAT IN THE CASE OF M/S. IAL SHIPPING AGENCIES (MUMBAI) LTD . IN I.T.A. NO. 3910/MUM./2005 SHALL SQUARELY APPLY TO THE FACTS OF THE INSTANT CA SE. ACCORDINGLY, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER H IMSELF HAS OBSERVED IN THE ASSESSMENT ORDER THAT THE ASSESSEE HAS SUBMITTED TH E DETAILS THAT WERE CALLED FOR BY HIM. HENCE THERE WAS NO NECESSITY FOR THE TRIBUNAL TO SET ASIDE THE MATTER AGAIN TO THE FILE OF THE ASSESSING OFFICER. M.P.NO.84 /COCH/2012 2 3. ON THE CONTRARY, THE LD. DR DREW OUR ATTENTION T O PARA 7 OF THE IMPUGNED ORDER PASSED BY THE TRIBUNAL; WHEREIN THE TRIBUNAL HAS SP ECIFICALLY OBSERVED THAT THE COUNSEL FOR THE ASSESSEE COULD NOT FURNISH THE NECESSARY DE TAILS TO SHOW THAT THERE EXISTED A PARITY OF FACTS BETWEEN THE ASSESSEE-COMPANY AND M/ S. IAL SHIPPING AGENCIES (MUMBAI) LTD, I.E., THE CASE DECIDED BY THE MUMBAI TRIBUNAL. THE LD. DR FURTHER SUBMITTED THAT THE TRIBUNAL HAS TAKEN A CONSCIOUS D ECISION TO RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER SINCE THE FACT S SURROUNDING THE VARIOUS ISSUES UNDER DISPUTE WAS NOT CLEARLY BROUGHT OUT EITHER BY THE A SSESSING OFFICER OR BY THE ASSESSEE. ACCORDINGLY, THE LD. DR SUBMITTED THAT THE REQUEST MADE BY THE ASSESSEE BY FILING VARIOUS DOCUMENTS IN THIS MISCELLANEOUS APPLICATION WOULD LEAD TO A REVIEW OF THE ORDER ALREADY PASSED, WHICH THE TRIBUNAL IS NOT ENTITLED TO DO UNDER THE PROVISIONS OF SEC. 254(2) OF THE ACT. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ASSESSEE HAS FILED THE MISCELLANEOUS PETITION, WHICH RUNS INTO 1 3 PAGES. IN THE SAID PETITION, THE ASSESSEE HAS GIVEN DETAILS RELATING TO THE ASSESSEE -COMPANY, PROVISIONS OF DTAA AND HAS GIVEN ITS COMMENTS, IN THE FORM OF REPLY, TO CE RTAIN OBSERVATIONS MADE BY THE TRIBUNAL. BESIDES THE ABOVE, THE ASSESSEE HAS ATTA CHED VARIOUS DOCUMENTS, RUNNING INTO 50 PAGES. APPARENTLY, THE ASSESSEE HAS NOT PO INTED OUT ANY MISTAKE IN THE ORDER PASSED BY THE TRIBUNAL. INSTEAD, IT APPEARS THAT TH E ASSESSEE HAS TRIED TO SUBSTANTIATE ITS STAND THAT IT IS ELIGIBLE FOR EXEMPTION AS PER THE PROVISIONS OF DTAA BY FILING VARIOUS DOCUMENTS BEFORE THE TRIBUNAL. 5. IN PARAGRAPH 4 OF THE ORDER PASSED BY THE T RIBUNAL, IT IS CLEARLY MENTIONED THAT THE FACTS SURROUNDING THE VARIOUS ISSUES UNDER CONS IDERATION HAVE NOT BEEN CLEARLY BROUGHT OUT EITHER BY THE ASSESSING OFFICER OR BY T HE ASSESSEE. AS POINTED OUT BY THE LD. DR, THE LD. COUNSEL THEN APPEARING ON BEHALF OF THE ASSESSEE COULD NOT FURNISH ANY DETAIL TO SHOW THAT THERE EXISTED A PARITY OF FACTS BETWEEN THE ASSESSEE-COMPANY AND M/S. IAL SHIPPING AGENCIES (MUMBAI) LTD., IN WHOSE CASE THE MUMBAI TRIBUNAL HAD RENDERED ITS DECISION. IT WAS FURTHER NOTICED THAT THE LD. CIT(A) HAS GRANTED RELIEF WITHOUT DISCUSSING ANYTHING ABOUT THE PROVISIONS OF DTAA. UNDER THESE CIRCUMSTANCES, M.P.NO.84 /COCH/2012 3 THE TRIBUNAL WAS CONSTRAINED TO RESTORE ALL THE ISS UES TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO FRAME THE ASSESSMENT DE NOVA IN ACCORDANCE WITH LAW. THE ASSESSEE WAS ALSO DIRECTED TO CO-OPERATE WITH THE A SSESSING OFFICER BY FILING ALL THE DETAILS THAT MAY BE CALLED FOR BY HIM. 6. THE POWER VESTED WITH THE TRIBUNAL UNDER THE PRO VISIONS OF SEC. 254(2) OF THE ACT IS LIMITED, I.E., THE TRIBUNAL MAY AMEND ANY OR DER PASSED BY IT UNDER SEC. 254(1) WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT FROM RE CORD. THE TRIBUNAL IS NOT ENTITLED TO REVIEW ITS ORDER UNDER THE GARB OF RECTIFICATION. IN OUR VIEW, THE REQUEST MADE BY THE ASSESSEE VIDE THIS MISCELLANEOUS PETITION WOULD LE AD THE TRIBUNAL TO REVIEW ITS OWN ORDER, WHICH IT IS NOT ENTITLED TO DO UNDER THE PRO VISIONS OF SEC. 254(2) OF THE ACT. ACCORDINGLY, WE REJECT THE MISCELLANEOUS PETITION F ILED BY THE ASSESSEE. 6. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS DISMISSED. PRONOUNCED ACCORDINGLY O N 14-12-2012 SD/- SD/- (N.R.S.GANESAN) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 14TH DECEMBER, 2012 GJ COPY TO: 1.M/S. I.A.L. SHIPPING AGENCIES (KOCHI) LTD., 6 TH FLOOR, METRO PLAZA, MARKET ROAD, COCHIN-14 2.THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE- 1(2), ERNAKULAM. 3.THE COMMISSIONER OF INCOME-TAX(APPEALS)-II, KOCHI . 4.THE COMMISSIONER OF INCOME-TAX, KOCHI. 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. BY ORDER (AS SISTANT REGISTRAR) I.T.A.T, COCHIN M.P.NO.84 /COCH/2012 4