TMI Blog2015 (9) TMI 1056X X X X Extracts X X X X X X X X Extracts X X X X ..... s income. It is in the above view that Section 172 of the Act and Circular No. 723 issued by the CBDT was relied upon by the respondent-assessee to point out that as Section 172 of the Act provides a complete code itself for levy recovery of tax ship wise and journey wise. Thus there is no occasion to deduct tax under Chapter XVII of the Act. It is a settled position under the law of precedents that, it is not open to us (Division Bench) to take a view contrary to the view taken by another Division Bench of this Court. In case, we are unable to agree with the view of the earlier Division Bench and it does not fall within the exclusionary categories of binding precedent by being contrary to and/or in conflict with a decision of the Apex Court or rendered per-incurrim. In such a case it is best that the issue is resolved at the hands of a Larger Bench of this Court. Certainty of law is an important ingredient of Rule of Law. We direct the Registry to place papers and proceedings of the present two appeals before the Hon'ble The Chief Justice to obtain suitable directions to place the following question of law for the opinion of the Larger Bench of this Court as under: Whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deposits', 'interest on debentures', and interest from sister concerns' and 'other interest' is forming the part of the head Profits and gains of business or profession ? (V) Whether the findings of the ITAT that the receipts on account of 'professional services' and 'proceeds from electronic data processing' are not income falling within the exclusionary provisions of clause (baa) of Explanation to section 80HHC, is right in law ? (VI) Whether the findings of the ITAT, that 90 % of the net income from receipts on account of 'stevedoring agency business' and 'travel agency business' are falling within the exclusive provision of clause (baa) of explanation to section 80HHC, is right in law ? (VII) Whether the findings of the ITAT, that only 90 % of 'net' income from the 'transfer of vessel' and 'barge freight', has to be excluded, for the purpose of computing profits of the business under clause (baa) of Explanation to section 80HHC, is right in law ? (VIII) Whether the findings of the ITAT that, only 90 % of the 'net' income from the 'lease hire charges' receiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovision in respect of non-resident shipping companies. It provides for determination and collection of tax. Thus Chapter XVII of the Act in respect of deducting tax at source would not apply in such cases. Consequently, the disallowance of expenditure on account of Section 40(a)(i) of the Act was deleted. 6. In appeal before us, Ms. Desai, the learned Counsel for the revenue invites our attention to the decision of this Court in CIT Vs. Orient (Goa)(P) Ltd. 325 ITR 554 by which this Court reversed the decision of the Tribunal in Orient (Goa)(P) Ltd. rendered on 2 December 2004. In the above view, she submits that the appeal be allowed. 7. On the other hand, Mr. Mihir Naniwadekar, learned Counsel for the respondent-assessee submits that the decision of this Court in Orient (Goa)(P) Ltd. (supra) may require reconsideration. 8. The substantial question interalia which arose for consideration of this Court in Orient (Goa)(P) Ltd. (supra) was as under: (B) Whether on the facts and in the circumstances of the case, the assessee was entitled to claim deduction of the demurrage charges of ₹ 1,08,53,980/paid to foreign company, without deducting tax on it, under s. 40(a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... residence in India . In short, respondent assessee cannot be said to be non-resident. The present appeal pertains to the respondent assessee. In our view, in the facts of the present case, the respondent assessee cannot lay fingers on s. 172, since we are not dealing with profits of non-residents. The other aspect is that such profits of non-residents should be from occasional shipping business. It is not the case that the respondent assessee has earned some profit from occasional shipping and is a non-resident. In our view, s. 172 does not have application in relation to the respondent assessee and in the facts and circumstances of the present case. The company from Japan viz., Mitsui Co. Ltd., Japan, recipient of demurrage amount is not before us. In other words, we are not examining the tax liability of the foreign company i.e., Mitsui Co. Ltd., Japan. ....... Provisions of s. 172 are to apply notwithstanding anything contained in the other provisions of the Act. Therefore, in such cases, the provisions of ss. 194C and 195 relating to TDS, are not applicable. The recovery of tax is to be regulated for voyage undertaken from any port in India by a ship, under the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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