TMI Blog2010 (10) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... the profits of non-residents from occasional shipping business - it is also noticed that the necessary double income-tax relief certificate has been issued on February 14, 2007 and March 22, 2007 and the assessment order under section 172(4) has been passed only on May 8, 2007 - In the result, both the Revenue's appeal and the assessee's cross-objection are dismissed - I. T. A. No. 871/Mds/2010 - - - Dated:- 26-10-2010 - K. K. Gupta, George Mathan, JJ. K. E. B. Rengarajan for the Department Kanchun Kaushal, V. P. Manikandan and Dhanesh Bafna for the Assessee ORDER I. T. A. 871/Mds/2010 is an appeal filed by the Revenue against the order of the learned Commissioner of Income-tax (Appeals)-IV, Chennai in Appeal No. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts Indian agency on behalf of the master of the ship, the provisions of section 172 become automatically applicable. (5) The learned Commissioner of Income-tax (Appeals) ought to have appreciated the fact that the assessee has not produced any no objection certificate from the Assessing Officer of the principal with reference to applicability of the Double Taxation Avoidance Agreement. (6) For these and other grounds that may be adduced at the time of hearing it is prayed that the order of the learned Commissioner of Income-tax (Appeals) may be set aside and that of the Assessing Officer be restored." In regard to ground No. 2 the learned Departmental representative submitted that the learned Commissioner of Income-tax (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 246 and the words used in section 246A(1)(a) are in pari materia, the assessee should be held to be entitled to file appeal before the learned Commissioner of Income-tax (Appeals). We have considered the rival submissions. We have also perused the order of the hon'ble Supreme Court placed before us. A perusal of the provisions of section 246A(1)(a) are also found to be substantially in pari materia with the provisions of section 246 in so far as the words used are "or to the amount of tax determined". As the assessee has challenged the amount of tax determined under the provisions of section 172(4), respectfully following the decision of the hon'ble Supreme Court in the case of Arabian Express Line referred to supra, the learned Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 44B related to the income that was liable to be assessed in relation to the business of shipping. It was the submission that the assessee had also applied for the double income-tax relief certificate before the assessing authority in Mumbai on April 4, 2006 and the assessee had been given two certificates dated February 14, 2007 and March 22, 2007 which were valid upto March 31, 2007. However, on a query from the Bench as to proof that the certificates were placed before the Assessing Officer, the learned authorised representative was unable to produce the same. The learned authorised represent tative further placed reliance on the calculation filed by the assessee before the assessing authority in Mumbai wherein the income of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue. It was therefore submitted that the order of the learned Commissioner of Income-tax (Appeals) should not be disturbed. We have considered the rival submissions. It is noticed that the learned Commissioner of Income-tax (Appeals) has passed a consolidated order in respect of six orders passed by the Assessing Officer. Obviously, six appeals ought to have been filed before the Tribunal. It is noticed that this has not been done. Even on this ground the consolidated appeal filed by the Revenue is liable to be dismissed. However, considering that the facts are identical and it is only a technical breach, the issues in the appeal are being disposed of on the merits. The provisions of section 44B show that it is applicable for comput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is only a technical breach which can be rectified. In the circumstances we are of the view that the order of the learned Commissioner of Income-tax (Appeals) cancelling the demand raised in the assessment order passed under section 172(4) is on a right footing and does not call for any interference. Even otherwise in view of the decision of the hon'ble Supreme Court in the case of Radhasoami Satsang v. CIT reported in [1992] 193 ITR 321 (SC) as the Revenue has accepted the decision of the learned Commissioner of Income-tax (Appeals) in respect of 42 voyages out of the 48 voyages within the same financial year and which have identical facts, we are of the view that the issue has got settled and consequently the learned Commissioner of Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
