TMI Blog2011 (4) TMI 637X X X X Extracts X X X X X X X X Extracts X X X X ..... to the file of the Assessing Officer with a direction to examine all the documents filed even before the DRP or assessee may be required to file fresh documents which may prove that assessee was operating ships - Needless to say that assessee should be provided an adequate opportunity before coming to a conclusion. Determination of taxable income u/s 44B - Service tax - Service tax which is a statutory liability, would not involve any element of profits and a service provider is collecting the same from its customers on behalf of the Government and, accordingly, same cannot be included in the total receipts for determining the presumptive income - Therefore, set aside the order of the DRP in this regard and direct the Assessing Officer not to include the amount of service tax in the total receipts for determining the income u/s 44B. - IT APPEAL NO. 8845 (MUM.) OF 2010 - - - Dated:- 20-4-2011 - R.V. EASWAR, T.R. SOOD, JJ. S.N. Inmadar for the Appellant. Ashok J. Patil for the Respondent. ORDER T.R. Sood, Accountant Member. ‑ In this appeal the assessee has raised the following grounds: 1. On the facts and circumstances of the case and in law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not owned by the assessee. The assessee again was requested to file details of vessels chartered and pooled with supporting evidence. No further details were filed. Accordingly, Assessing Officer observed as under: "In this case the copies of the Ship Registration Certificates, Charter Party Agreements, Agreements for pool arrangement/lot arrangements are not provided by the assessee. The details regarding the number of voyages from various Indian ports and ship registration certificates in respect of all the voyages are also not filed by the assessee. The assessee has not been able to furnish the independent evidences like certificates issued by the port authorities and the declaration by the port authorities in respect of berthing of the vessels. Import General Manifest/Export General Manifest declares the destination of cargo. The loading port and the destination port are given in these manifests. The same has also not been provided by the assessee. The assessee has not established that the vessels employed in voyages have actually come to India being carriage vessels and the assessee has not been able to produce any evidence to link these vessels to the vessels shown t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stimation of net profit at 10 per cent against 7.5 per cent profit mentioned in section 44B, the estimation made by the AO appears to be reasonable and confirmed." 4. Before us, Ld. counsel of the assessee submitted that during the relevant point of time there were internal disturbances in Iran and that is why some of the documents could not be filed. He further submitted that, however, many documents were filed before the DRP which have been listed in the paper book at Sr.No.6 and it has been certified that they were filed before the DRP. However, DRP has not considered any of those documents and merely repeated the conclusion reached by the Assessing Officer. He argued that even if these documents were considered as additional documents, even then DRP was bound to consider them and in this regard he referred to Income-tax (Dispute Resolution Panel) Rules, 2009, inviting our attention to rule 9 which provides that whenever panel deem it necessary it has the power to call any document or witnesses for issuance of proper directions. Therefore, the documents filed before the DRP could have been considered and only after consideration of such documents some directions could have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed before the Assessing Officer. For example, Bareboat Charter Register Certificate at page-53 is identical to the certificate filed at page 88 of the paper book, which only shows that nothing fresh was filed before the DRP and that is why DRP had agreed with the conclusion of the Assessing Officer. He argued that even before the DRP or before us no meaningful documents have been filed and no purpose would be served in sending the matter back. 7. We have considered the rival submissions carefully and agree with the submissions of the Ld. counsel of the assessee. If the assessee could not file certificate, documents because of internal disturbances in its country Iran, then at least DRP could have examined the documents which were filed before it. May be one or two documents are identical, but it does not mean that all the documents are same. Moreover, these documents have to be examined in the light of the department's own decision in the earlier years when assessee's income has been accepted as 'income from operation of ships' under section 44B in the assessment order passed under section 143[3]. If some of the documents mentioned by the Assessing Officer like certificate for bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les tax and excise duty. He also relied on the decision of the Hon'ble Uttarakhand High Court in the case of DIT v. Schlumberger Asia Services Ltd. [2009] 317 ITR 156/[2010] 186 Taxman 436, wherein while dealing with the issue regarding profit under section 44B in respect of customs duty could not be included in part of the amount for the purposes of deemed profit. 11. On the other hand, Ld. DR submitted that the decision of Hon'ble Uttarakhand High Court in the case of Schlumberger Asia Services Ltd. (supra) was rendered in respect of customs duty and, therefore, same cannot be applied in the case before us. In any case, there is a direct decision in respect of service tax in the case of Technip Offshore Contracting BV (supra), wherein while dealing with the computation of profit under section 44B, it was held that service tax would be included in the amount for determining the income under section 43B. 12. In the rejoinder, Ld. counsel of the assessee submitted that in the case of Technip Offshore Contracting BV (supra) the decision of the Hon'ble Bombay High Court in the case of Sudershan Chemical Inds. (supra) was not considered. 13. We have considered the rival submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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