Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2018 (12) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (12) TMI 1878 - AT - Income TaxRevision u/s 263 - AO has not made inquiry in regards to receipt shown in service tax return of the assessee vis a vis as per P&L A/C and that the foreign Principals have paid taxes in India u/s 172 of the Act or not - HELD THAT:- We have noted that in the assessment order, the Assessing Officer has not discussed the issue, which is sought to be revised by ld. PCIT. However, the Assessing Officer during the assessment vide its notice dated 18.12.2015 raised the specific enquiry vide question no. 19, which we have reproduced below: “19. Please file copies of service tax return along with the enclosures. It is observed that higher turnover reported in service tax return than the IT Return please reconciles.” Assessee furnished re-conciliation income as per income tax return as well as service tax return. The assessee also furnished the complete details of service tax return. The assessee furnished Note on return filed with service tax authority and has clearly mentioned that assessee is an agent of various foreign shipping lines. The assessee on behalf of the principle collected the charges for shipping from consumer, which are freight and terminal handling charges out of freight and terminal handling charges, no handling charges is liable to be service tax and freight is exempt from payment of service tax. The service tax is collected and paid on such income on behalf of the agent. Therefore, the income of principle is included in the service tax return of assessee. The assessee is an agent earned fixed percentage of commission on export and import on freight. The assessee also collected documentation and other charges which service is taxable income. Thus, we have seen that the assessee has furnished complete details to the Assessing Officer. The Assessing Officer after his satisfaction and without mentioning anything about the issue accepted the contention of assessee. Hon’ble jurisdictional High Court in CIT vs. Gabriel India [1993 (4) TMI 55 - BOMBAY HIGH COURT] held that when the Income Tax Officer (ITO) made enquiries with regard to the expenditure incurred by assessee. The assessee furnished detailed explanation in this regard by a letter in writing. All are part of the record of the assessee and the claim was allowed by ITO on being satisfied with the explanation of assessee. Such decision of ITO cannot be held to be erroneous in his order; he has not made elaborate discussion in this regard. Also in SHRI ASHISH RAJPAL [2009 (5) TMI 18 - DELHI HIGH COURT] held that merely because the assessment order does not refer to query raised by Assessing Officer during the scrutiny and response of the assessee thereto it cannot be said that there was no enquiry and the assessment order is erroneous and prejudicial. As we have already noted and referred that the Assessing Officer made specific enquiry with regard to service tax return and receipt of income in the original assessment and accepted the same, therefore, in our view, the order passed by assessing officer is not erroneous. Therefore, the precondition for exercise of power under section 263 is not fulfilled. - Decided in favour of assessee.
|