TMI Blog2023 (7) TMI 844X X X X Extracts X X X X X X X X Extracts X X X X ..... and not on the date of agreement. Thus the interpretation of provisions of Chapter X of the Act in this manner alone would be just and fair and serve the intended purpose of the said Chapter. When this is done, there will be no scope of any ALP adjustment in respect of freight charges paid by the assessee as is evident from the aforesaid table. Hence, we direct the Ld. AO / TPO to delete the ALP adjustment. Computation of Long-term Capital Gains - non considering the INDEX COST of assets purchased u/s. 48 - HELD THAT:- As in the case of CIT vs. Pruthvi Brokers Shareholders Pvt. Ltd. [ 2012 (7) TMI 158 - BOMBAY HIGH COURT ] had categorically held that any valid claim of assessee could be made for the first time either by way of filing a revised computation or before the appellate authorities. We find that the benefit of indexation while computing long term capital gains had been statutorily provided to the assessee. Hence, we direct the Ld.AO to grant the benefit of indexation to the assessee while computing long term capital gains after verifying the veracity of the workings thereon. Accordingly, the ground No.6 raised by the assessee is allowed for statistical purposes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Enterprise (AE). The Voyage rates which assessee had paid to the AE was comparatively favourable with the then prevailing market fixtures that have been concluded by TRANSCHART, New Delhi, which is the chartering wing of the Ministry of Surface Transport, Govt. of India. TRANSCHART is the sole chartering agency for chartering ships for Government undertakings. During the year, the assessee had paid freight charges for the three voyages and in this regard, the submissions made by the assessee are as under:- (a) (PDYK22)) M.V. Prabhu Daya (10.4.2008 to 30.5.2008) (Freight paid amounting to Rs. 18.31,74,850/-) The Assessee entered into a Charter Party agreement with Steel Authority of India Ltd., a Government Undertaking, vide Agreement dated 20th March, 2008 for transporting cargo of 50,000 Metric Tonnes of Coking Coal from Queensland, Australia to Vishakhapatnam and Haldia ports, India at a freight rate, of Rs. 2,369/- (Rupees Two Thousand Three Hundred and Sixty Nine only) PMT. The Assessee was required to make its ship available in the month of April' 2008 at port of Queensland. However, since Assessee's own Vessels were engaged in carriage of other c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Steel Authority of India Ltd., as its own Vessels were not available; it had to in-charter Vessel. Moreover, the in-chartering had to be done to avoid loss on account of non-performance of contract and not to lose out on business opportunities from reputed Government Companies. The Assessee has taken on voyage charter, vessel, M. V. Prabhu Gopal belonging to the Associate Enterprise, Tolani Shipping (Singapore) Pte. Ltd., vide agreement dated 21 st August, 2008 at USD 47.00 Per Metric Ton for transport of cargo from port at Queensland, Australia for discharge at Vishakhapatnam and Haldia ports, India (Copy enclosed at Annexure 13). We are reproducing below the relevant market transactions which indicate the freight rates prevailing at the time the Assessee in-chartered the Vessel. The details of the relevant market transactions obtained from broker, M/s. Interocean, Delhi, (Copy enclosed) during the relevant period are given below: M.V. HAPPY CLIPPER 50,000MT / 5% PCTcoal Load / Discharge Port : Port Kembla / East Coast of India Lay Can: 20th August, 2008 / 30th August, 2008 Freight Rate : USD 57.75 PM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008 Freight Rate : USD 57.75 PMT M.V.JIN XIN SHAN 50,000 MT / 5% PCT coal Load / Discharge Port : Port Queensland / East Cost of India Lay Can : 1 st August, 2008 / 10 th August, 2008 Freight Rate : USD 56.00 PM 3.3. The assessee also furnished the copies of confirmation received from the relevant broker for the relevant market transaction which indicated coal freight rate prevailing at the time of entering into an agreement with the AE. The assessee had benchmarked this international transaction and treating the payment made by the assessee to be at Arm s Length Price (ALP) since the freight rate of USD 60 per MT paid by the assessee is comparable with the prevailing market rate as indicated above for the first voyage between 10/04/2008 to 30/05/2008; freight rate of USD 47 per MT paid by the assessee is comparable with the prevailing market rate as indicated above for voyage between 07/10/2008 to 12/10/2008 and freight rate of USD 55 per MT paid by the assessee is comparable with the prevailing market rate as indicated above for vo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Despatch Brokerage (INR) Freight Amount including Demurrage after Despatch Brokerage (INR) (MT) (1) (2) (3) (4)=(2)+(3) (5) (6)=(3)*5 (7) (8) (9)=(7)+(8) PDY 1(22) 49,896.70 60.00 2,993,802.00 49.6344148 2,978.06 148,595,610 34,579,239 183,174,850 PG 22(33) 51,724.40 47.00 2,431,046.80 49.2602853 2,315.23 119,754,059 12,227,339 131,981,398 PPR 16(35) 51,450.00 55.00 2,829,750.00 49.2602853 2,709.32 139,394,292 2,687,645 142,081,938 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (19)=(13)*(18) (20)=(6)-(13) (21)=(2)*(20) (22)=(16)+(17)+(19)+(21) 63,654,850 - 34,579,239 (103.3) (246,928) 587.66 29,322,539 63,654,850 27,783,808 - 12,237,339 724.4 1,480,014.00 272.14 14,076,454 27,783,808 26,293,188 - 2,687,645 1,450.0 3,357,874.00 393.54 20,247,668 26,293,188 117,731,845 - 49,494,224 - 4,590,960 63,646,662 117,731,845 6,054,482 6,054,482 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be made. We find no arguments were advanced by the Ld.AR before us on this additional ground. Rather, heavy arguments were advanced vehemently only for deletion of transfer pricing adjustment on merits. Hence, the additional ground raised by the assessee is dismissed as not pressed. 9. In the result, the appeal of the assessee for A.Y. 2009-10 in ITA No.1755/Mum/2014 is partly allowed. ITA No. 1243/Mum/2015 A.Y. 2010-11 (Appeal by Assessee) 10. This is a recalled matter. Pursuant to miscellaneous application order dated 16/07/2020 passed by this Tribunal for A.Y. 2010-11, we find that this appeal is recalled only for the limited purpose of adjudication of ground 6 raised by the assessee. The ground No.6 reads as under:- 6. The Learned A.O. as well as Hon'ble DRP have erred in computing Long-term Capital Gains of Rs. 3,41,33,536/- without considering the INDEX COST of assets purchased u/s. 48 and if INDEX COST is considered the Appellant has incurred Long-term Capital Loss of Rs. 32,05,603/- as against profit of Rs. 3,41,33,536/- taken as Taxable Income. 10.1. We have heard the rival submissions and perused the materials available on record. It is not in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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