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TMI Blog2010 (10) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri K. E. B. Rengarajan, junior standing counsel represented on behalf of the Revenue and Shri Kanchun Kaushal, Shri V. P. Manikandan and Shri Dhanesh Bafna, chartered accountants represented on behalf of the assessee. In the Revenue's appeal, the Revenue has raised the following grounds:- "(1) The order of the learned Commissioner of Income-tax (Appeals) is contrary to law and facts of the case. (2) The learned Commissioner of Income-tax (Appeals) erred in admitting appeal filed against the order passed under section 172(4) as this is not an appealable order before the Commissioner of Income-tax (Appeals) as per section 246A of the Income-tax Act. (3) Without prejudice to the ground raised above, the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 246A an order passed under section 172(4) was not an appealable order before the learned Commissioner of Income-tax (Appeals). It was the submission that as per the provisions of section 246A(1)(f) an order under section 171 could have been appealed against but the order passed in the present case is an order under section 172(4) on the basis of a return filed by the assessee under section 172(2) and the same is not appealable. It was the submission that as the order was not appealable, the order of the learned Commissioner of Income-tax (Appeals) had to be quashed. In reply, the learned authorised representative placed before us copy of the decision of the hon'ble Supreme Court in the case of Union of India v. Arabian Express Li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal stands dismissed. In regard to grounds Nos. 3, 4 and 5 it was submitted by the learned Departmental representative that the assessee had not placed before the Assessing Officer necessary certificate being the double income-tax relief certificate when filing its return under section 172(2) of the Income-tax Act, 1961. It was the submission that as the certificate has not been placed, the Assessing Officer was right in assessing the income of the assessee as per the said section. It was the submission that in the assessment no enhancement of the income has been made and only the returned income has been accepted and there is no room for making any adjustment to the same. In reply, the learned authorised representative subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he present appeal was only in relation to the portion of the income which has already been assessed to tax in the regular assesS7 ment, consequently the demand was not liable to be raised on the assessee under section 172(4). The learned authorised representative argued that the order of the learned Commissioner of Income-tax (Appeals) was liable to be upheld. It was the further submission by the learned authorised representative that the total number of voyages in relation to the Chennai Port was only 48 voyages. It was the submission that out of the said 48 voyages the dispute in regard to the taxability of 42 voyages had been adjudicated by the learned Commissioner of Income-tax (Appeals) in his order in I. T. A. No. 8/07-08. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccasional shipping business. A perusal of the assessment order passed by the Assessing Officer being the Deputy Director of Income-tax (International Taxation)-4(1), Mumbai, shows that he has invoked the provisions of section 44B and has brought to tax the income of the assessee in Mumbai. We are however not adjudicating the applicability of the provisions of section 44B or on the order of the learned Assessing Officer who has passed the assessment order in Mumbai. All we are saying is that the provisions of section 44B have been invoked and the order has been passed in the case of the assessee. Once the provisions of section 44B have been invoked, applicability of section 172 no more survivel. This is because a higher amount has been asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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