ACIT, CHENNAI V. VS & B Containers Pvt. Ltd., CHENNAI

MA 94/CHNY/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 5077 (ITAT-CHENNAI)
• Duration Of Justice: 8 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-12-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 25-11-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 07-04-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R DURAIPANDIAN
• Assessee Lawyers: S SRIDHAR
• Keywords: Double taxation relief

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI ... , . !'# ! , % !& BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER '' / M.P. NO.94/MDS/2016 (IN I.T.A. NO.1279/MDS/2013) ( )( / ASSESSMENT YEAR : 2008-09 THE ASSISTANT COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 3(2), CHENNAI - 600 034. V. M/S VS & B CONTAINERS PVT. LTD., OLD NO.50, NEW NO.8, Y BLOCK, 9 TH STREET, ANNANAGAR, CHENNAI - 600 040. PAN : AAACV 3633 K (+,( /PETITIONER) (+-,./ RESPONDENT) +,( 0 1 /PETITIONER BY : SHRI R. DURAI PANDIAN, JCIT +-,. 0 1 / RESPONDENT BY : SHRI S. SRIDHAR, ADVOCATE 2 0 3% / DATE OF HEARING : 25.11.2016 4') 0 3% / DATE OF PRONOUNCEMENT : 08.12.2016 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THE REVENUE HAS FILED THE PRESENT MISCELLANEOUS P ETITION ON THE GROUND THAT THERE IS AN ERROR IN THE ORDER OF T HIS TRIBUNAL DATED 15.10.2015. 2 M.P. NO.94/MDS/16 2. SHRI R. DURAI PANDIAN, THE LD. DEPARTMENTAL REPR ESENTATIVE, SUBMITTED THAT FOR THE ASSESSMENT YEAR 2008-09, THI S TRIBUNAL CONFIRMED THE ORDER OF THE CIT(APPEALS) BY FOLLOWIN G ITS ORDER FOR THE ASSESSMENT YEAR 2003-04. FOR THE ASSESSMENT YEAR 2 003-04, THE PAYMENT WAS MADE TO M/S CRONO CONTAINERS LTD., UK. IN FACT, FOR THE ASSESSMENT YEAR 2008-09, THE ASSESSING OFFICER HIMSELF ALLOWED THE CLAIM OF THE ASSESSEE. THE ISSUE ARISE S FOR CONSIDERATION IS IN RESPECT OF PAYMENT MADE TO OTHE R PARTIES SUCH AS M/S ABC CONTAINERS PVT. LTD., COLOMBO AND OTHERS . IN RESPECT OF PAYMENT MADE TO M/S ABC CONTAINERS PVT. LTD., CO LOMBO, THIS TRIBUNAL FOUND THAT THE COPY OF THE AGREEMENT ENTER ED INTO BETWEEN THE ASSESSEE AND M/S ABC CONTAINERS PVT. LTD., COLO MBO WAS NOT FURNISHED BEFORE THE LOWER AUTHORITIES OR BEFORE TH IS TRIBUNAL. ACCORDINGLY, THE MATTER WAS REMITTED BACK TO THE FI LE OF THE ASSESSING OFFICER FOR RECONSIDERATION. THEREFORE, FOR THE ASSESSMENT YEAR 2008-09 ALSO THE MATTER NEEDS TO BE SENT BACK TO THE ASSESSING OFFICER. 3. WE HAVE HEARD SHRI S. SRIDHAR, THE LD.COUNSEL FO R THE ASSESSEE, ALSO. THE LD.COUNSEL FOR THE ASSESSEE SU BMITTED THAT IN RESPECT OF M/S CRONO CONTAINERS LTD., UK, NO DISALL OWANCE WAS MADE BY THE ASSESSING OFFICER AS SUBMITTED BY THE L D. D.R. IN 3 M.P. NO.94/MDS/16 RESPECT OF PAYMENT MADE TO M/S ABC CONTAINERS PVT. LTD., FOR THE ASSESSMENT YEAR 2003-04, THE MATTER WAS REMITTED BA CK TO THE FILE OF THE ASSESSING OFFICER FOR RECONSIDERATION. THER EFORE, THE LD.COUNSEL SUBMITTED THAT FOR THE ASSESSMENT YEAR 2 008-09, THE MATTER MAY BE REMITTED BACK TO THE FILE OF THE ASSE SSING OFFICER. 4. WE HAVE CONSIDERED THE SUBMISSIONS ON EITHER SID E AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS RIGHTLY SUBMITTED BY THE LD. D.R., THIS TRIBUNAL BY FOLLOWI NG ITS ORDER FOR THE ASSESSMENT YEAR 2003-04, CONFIRMED THE ORDER OF THE CIT(APPEALS). THE FACT REMAINS THAT NO DISALLOWANCE WAS MADE IN R ESPECT OF PAYMENT MADE TO M/S CRONO CONTAINERS PVT. LTD., UK. THE PAYMENT MADE TO M/S ABC CONTAINERS PVT. LTD., COLOM BO FOR THE ASSESSMENT YEAR 2003-04 WAS REMITTED BACK TO THE FI LE OF THE ASSESSING OFFICER. THESE FACTUAL ASPECTS ARE NOT I N DISPUTE. THE ASSESSEE ADMITTEDLY MADE PAYMENT TO M/S ABC CONTAIN ERS PVT. LTD. AND OTHERS FOR ASSESSMENT YEAR 2008-09. THE A GREEMENT ENTERED INTO BETWEEN THE PARTIES ARE NOT AVAILABLE BEFORE THIS TRIBUNAL, THEREFORE, THIS TRIBUNAL IS OF THE CONSID ERED OPINION THAT THE MATTER NEEDS TO BE RECONSIDERED. TO THAT EXTEN T, THERE IS AN ERROR IN THE ORDER OF THIS TRIBUNAL. ACCORDINGLY, THE SAME IS RECTIFIED. 4 M.P. NO.94/MDS/16 FOLLOWING PARAGRAPHS 32 & 32 AT PAGE NOS.22 AND 2 3 IN THE TRIBUNALS ORDER DATED 15.10.2015 ARE DELETED:- 32. THIS ISSUE WAS CONSIDERED BY THIS TRIBUNAL IN E ARLIER PART OF THIS ORDER FOR ASSESSMENT YEAR 2003-04. THIS TRIBUNAL FOUND THAT IN VIEW OF ARTICLE 9 OF THE DTAA BETWEEN GOVERNMENT OF INDIA AND GOVERNMENT OF UNITE D KINGDOM, THE INCOME OF M/S CRONO CONTAINERS LTD., U K, HAS TO BE TAXED ONLY IN UK, THEREFORE, THERE IS NO LIABI LITY ON THE PART OF THE ASSESSEE TO DEDUCT TAX UNDER SECTION 195 O F THE ACT. THE ABOVE FINDING IS SQUARELY APPLICABLE FOR THE YEAR UNDER CONSIDERATION ALSO. IN FACT, THE CIT(A) HAS ALSO FOLLOWED HIS ORDER FOR ASSESSMENT YEAR 2003-04. FOR THE REASONS STATED BY THIS TRIBUNAL IN EARLIER PART OF THIS ORDER, THIS TRIBUNAL DO NOT FIND ANY REASON TO INTERFERE I N THE ORDER OF THE CIT(A). ACCORDINGLY, THE SAME IS CONF IRMED. 33. IN THE RESULT, THE REVENUES APPEAL I.T.A. NO.1279/MDS/2013 STANDS DISMISSED. INSTEAD THE FOLLOWING SHALL BE INCORPORATED AS PARA GRAPHS 32 AND 33:- 32. ADMITTEDLY, THE PAYMENT MADE TO M/S CRONO CONTAINERS PVT. LTD., UK WAS NOT DISALLOWED BY THE ASSESSING OFFICER. THE DISPUTE IS ONLY WITH REGARD TO PAYMENT MADE TO M/S ABC CONTAINERS PVT. LTD., COLOMBO AND OTHERS. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE DOUBLE TAXATION AVOIDANCE AGREEMENT BETWEEN GOVERNMENT OF INDIA AND GOVERNMENT OF SRI LANKA AND OTHER GOVERNMENTS, WHEREVER THE PAYMENTS WERE MADE BY THE ASSESSEE HAS TO BE EXAMINED. THE SERVICE CONTRACT ENTERED I NTO BETWEEN THE PARTIES ALSO NEEDS TO BE EXAMINED. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINI ON 5 M.P. NO.94/MDS/16 THAT THE MATTER NEEDS TO BE RECONSIDERED. ACCORDIN GLY, THE ORDER OF THE CIT(APPEALS) IS SET ASIDE AND THE DISALLOWANCE MADE BY THE ASSESSING OFFICER UNDER SECTION 40(A)(I) OF THE ACT IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE- EXAMINE THE ISSUE IN THE LIGHT OF THE MATERIAL FILE D BY THE ASSESSEE AND THEREAFTER DECIDE THE ISSUE IN ACCORDANCE WITH LAW AFTER GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEE. 33. IN THE RESULT, THE REVENUES APPEAL IN I.T.A.NO.1279/MDS/2013 IS ALLOWED FOR STATISTICAL PURPOSES. 5. THE ORDER OF THIS TRIBUNAL DATED 15.10.2015 IS R ECTIFIED ACCORDINGLY. IT IS MADE CLEAR THAT THE OTHER PART OF THE ORDER DATED 15.10.2015 SHALL REMAIN AS SUCH. 6. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 8 TH DECEMBER, 2016 AT CHENNAI. SD/- SD/- (. !'# ! ) ( ... ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) % / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 6 /DATED, THE 8 TH DECEMBER, 2016. KRI. 6 M.P. NO.94/MDS/16 0 +37' 8')3 /COPY TO: 1. +,( / PETITIONER 2. +-,. /RESPONDENT 3. 2 93 () /CIT(A) 4. 2 93 /CIT 5. ': +3 /DR 6. ( ; /GF.