TMI Blog2019 (1) TMI 1329X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be stated that the order of the Tribunal dated 20.11.2015 suffers from a mistake apparent from record, warranting our interference u/s 254(2) of the I.T.Act. - MA No.17/Coch/2017 Arising out of ITA No.400/Coch/2014, MA No.18/Coch/2017 Arising out of ITA No.401/Coch/2014 - - - Dated:- 21-1-2019 - Shri Chandra Poojari, AM And Shri George George K, JM For the Applicant : Smt.A.S.Bindhu, Sr.DR. For the Respondent : Sri. K.P.Paulson, CA ORDER PER GEORGE GEORGE K, JM These Miscellaneous Applications at the instance of the Revenue are directed against the consolidated order of the Tribunal in ITA Nos.400 401/Coch/2004 (order dated 20.11.2015). 2. Brief facts of the case are as follows:- The assessee is a private limited company. It is engaged in the business of shipping agency, clearing and forwarding, stevedoring and other allied services. The assessee, in the course of its business, had taken certain ships on hire and had paid charter hire charges. For the AY 2007-08 the assessee had made total payment of ₹ 12,61,18,420/- as charter hire charges. Similarly for the AY 2008-09, the total payment was to the tune of ₹ 2,30,34,169/- as cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs are not placed on record though there is a reference to some of the clauses of contract in the order passed u/s 201 (1) and 201(1A) of the Act. We find the issue has not properly deliberated by both the AO and the CIT(A) with regard to the contract entered between the assessee and the ship owners. Therefore, for a proper appraisal of the issue and in the interest of justice and equity, we are of the view that the matter needs to be examined by the ACIT(TDS) afresh. TheACIT(TDS) shall examine the contract entered between the assessee and the ship owners, which is the basis for making payment of charter hire charges. The ACIT(TDS) on examination of the agreement/contract shall determine whether it is a case of contract of carrier coming within the ambit of sec. 194C or hire simplictor and whether such hiring of ships come under the provisions of section 194-I of the Act. The ACIT(TDS) shall expeditiously dispose of the matter in accordance with law as indicated above after affording reasonable opportunity of being heard to the assessee. It is ordered accordingly. 5. Aggrieved, the Revenue has filed the present Miscellaneous Applications before the Tribunal. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made t o foreign companies The assessee has furnished the bifurcation of the time charter hire c harges paid [exhibit-IV] and claims that RS . 5 , 10,12,348/- (out of total payments of Rs . 12 , 61,18 , 420/ - ) have been made to the non-resident /foreign shipping companies. Th e assessee has not properly represented the facts before the ACfT(TDS) during the original proceedings u/s . 201(l). He again failed to bring out the complete facts before th e Appeal authorities. Now, since the ITAT has particularly instructed that Contract agre e ment are required to be scrutinized before re-assessment , the assessee has submit te d the break up of expenditure . 7 . Since the assessee has submitted that ₹ 5 , 10,12 , 348/ - h as been paid to non-residents (out of total payments of ₹ 12 , 61 , 18 , 420/-), provis ion s of sect i on 195 is clearly attracted. 8. The Honorable Madras High court in the Poompuhar Ship pi ng Corporation Ltd . judgment dated 09.10.2013 in TC(A)nos . 2206 to 2208 of 2006 , T C( A)Nos . 598 to 601 of 2013 held that the payment by way of charter/time charter of sh i p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional Taxation), Kochi to deal with the paym e nts made to Non-Residents . 6. We have heard the rival submission and perused the material. The only issue raised by the department before the Tribunal in the Income-tax appeal was that section 194-I of the I.T.Act has application to the facts of the instant case and not section 194C of the I.T.Act, as contended by the assessee. The Tribunal in its order dated 20.11.2015 was of the view that there was no sufficient material on record to consider which of the section has application to the facts of the case, whether section 194-I or 194C of the I.T.Act. Hence, the Tribunal restored the case to the Assessing Officer for de novo consideration. 6.1 In the present Miscellaneous Applications, the Revenue s contention is that the Tribunal ought to have restored the matter to the A.O. to examine whether the provisions of section 194J of the I.T.Act and 195 of the I.T.Act is also applicable. It is to be mentioned that the Assessing Officer nor the CIT(A) had not considered the applicability of provisions of section 194J of the I.T.Act and 195 of the I.T.Act. In these Miscellaneous Applications, it is contended at para 3 that durin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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