DELMAS FRANCE, V. ASST DIT (IT) RG 1(2),

MA 88/MUM/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3503 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: L
• Assessment Year: 2001-2002
• Appeal Filed On: 01-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAKESH KUMAR AGARWAL
• Keywords: Transfer pricing; Double taxation relief

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL L BENCH, MUMBAI . , , , BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI N.K. BILLAIYA, A CCOUNTANT M EMBER M.A. NO. 88/MUM/2015 (ARISING OUT OF I .T.A. NO. 1955/MUM/2011 ( / ASSESSMENT YEAR : 2001 - 02 DELMAS FRANCE, C/O CMA CGM AGENCIES (INDIA) PVT. LTD., HAMILTON HOUSE, 8,J.N. HEREDIA MARG, BALLARD ESTATE, MUMBAI - 400 038 / VS. THE ASSTT. DIRECTOR OF INCOME TAX,(INTERNATIONAL TAXATION) - 1(2), 1 ST FLOOR, SCINDIA HOUSE, BALLARD ESTATE, MUMBAI - 400 038 ./ ./ PAN/GIR NO. : AABCD 6672P ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY: SHRI F ARROKH IRANI / RESPONDENT BY : SHRI RAKESH KUMAR AGARWAL / DATE OF HEARING : 04.09.2015 / DATE OF PRONOUNCEMENT : 04.09.2015 / O R D E R PER N.K. BILLAIYA, AM: THIS MISCELLANEOUS APPLICATION BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE TRIBUNAL IN ITA NO. 1955/MUM/2011 DATED 19.11.2014. M.A. NO. 88/M/2015 2 2. WITH THIS MISCELLANEOUS APPLICATION, THE ASSESSEE HAS SHOWN ITS APPREHENSION THAT WHILE GIVING EFFECT TO THE ORDER OF THE TRIBUNAL, THE REVENUE AUTHORITY MAY (A) CONSTRUE THE ORDER OF THE TRIBUNAL AS A CONCLUSIVE FINDING THAT THE ACTIVITIES OF BFSSL ARE DEVOTED WHOLLY OR ALMOST WHOLLY ON BEHALF OF THE APPLICANT OR (B) MAY CONSTRUE THE ORDER OF THE TRIBUNAL AS LIMITING THE ORDER OF REMAND ONLY TO THE EXAMINATION OF THE ARMS LENGTH CONDITION PROVIDED IN THE SECOND SENTENCE OF ARTICLE 5(6) OF THE INDO FRENCH DTAA. 3. THE LD. COUNSEL FOR THE ASS ESSEE POINTED OUT THE C AUSE FOR THE APPREHENSION REFERRING TO PARA - 6 AT PAGE - 7 OF THE ORDER OF THE TRIBUNAL WHEREIN THE TRIBUNAL HAS SET ASIDE THE MATTER TO THE FILE OF THE AO WITH THE DIRECTION TO EXAMINE THE TRANSACTIONS AT ARMS LENGTH PRICE AND DECIDE THE ISSUE AFRESH IN THE LIGHT OF THE PROVISIONS OF ARTICLE 5(6) OF INDO FRENCH DTAA. 3.1. IT IS THE SAY OF THE LD. COUNSEL THAT VIDE GROUND NO. 2 OF THE APPEAL, THE ASSESSEE HAS TAKEN A SPECIFIC GROUND CLAIMING THAT BFSSL WAS ACTING IN THE ORDINARY COURS E OF ITS BUSINESS AND RENDER SIMILAR SERVICE TO OTHER FOREIGN SHIPPING LINE BESIDES THE APPELLANT. 4. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE COULD NOT ADD ANYTHING. 5. WE HAVE CAREFULLY PERUSED THE ORDER OF THE TRIBUNAL. WHILE DECIDING THE I SSUE, THE TRIBUNAL HAS FOLLOWED THE FINDINGS GIVEN IN THE ASSESSMENT YEAR 2006 - 07 BY THE TRIBUNAL IN ITA NO. 9001/MUM/2010 AND AFTER FOLLOWING THE ORDER OF THE CO - ORDINATE BENCH, THE TRIBUNAL HAS DIRECTED THE AO TO DECIDE THE ISSUE AFRESH IN THE LIGHT OF T HE PROVISIONS OF ARTICLE 5(6) OF THE INDO FRENCH DTAA. WE FIND FORCE IN THE M.A. NO. 88/M/2015 3 APPREHENSION OF THE ASSESSEE. WE, THEREFORE MODIFY THE DIRECTIONS GIVEN AT PARA - 6 ON PAGE - 7 OF THE IMPUGNED ORDER OF THE TRIBUNAL. THE DIRECTIONS SHOULD BE READ AS UNDER: W E TH EREFORE RESTORE THIS ISSUE TO THE FILES OF THE AO TO EXAMINE WHETHER THE TRANSACTIONS BETWEEN THE AGENT AND THE ASSESSEE ARE AT ARMS LENGTH PRICE AND DECIDE THE ISSUE AFRESH IN THE LIGHT OF THE PROVISIONS OF ARTICLE 5(5) AND 5(6) OF INDO FRENCH DTAA . THIS MODIFICATION IN THE DIRECTION IS QUA GROUND NO. 2 OF THE APPEAL. 6. IN THE RESULT, THE M.A. FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH SEPTEMBER, 2015 SD/ - SD/ - ( D.MANMOHAN ) (N.K. B ILLAIYA) /VICE PRESIDENT / ACCOUNTANT MEMBER MUMBAI ; DATED : 4 TH SEPTEMBER, 2015 . . ./ RJ , SR. PS M.A. NO. 88/M/2015 4 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI