Income Tax Appellate Tribunal - Rajkot
Pearl Logistic & Ex-Im Corporation As ... vs Income Tax Officer, International ... on 20 March, 2017
आयकर अपील य अ
धकरण, राजकोट यायपीठ, राजकोट ।
IN THE INCOME TAX APPELLATE TRIBUNAL
RAJKOT BENCH, RAJKOT
[ Conducted through E-Court at Ahmedabad ]
BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER
And SHRI MAHAVIR PRASAD, JUDICIAL MEMBER
(1). आयकर अपील सं./I.T.A. No.313/Rjt/2013 for A.Y.2011-12
(2). आयकर अपील सं./I.T.A. No.658/Rjt/2012 for A.Y.2010-11
(3). आयकर अपील सं./I.T.A. No.659/Rjt/2012 for A.Y.2010-11
(4). आयकर अपील सं./I.T.A. No.660/Rjt/2012 for A.Y.2010-11
(5). आयकर अपील सं./I.T.A. No.661/Rjt/2012 for A.Y.2010-11
(6). आयकर अपील सं./I.T.A. No.517/Rjt/2013 for A.Y.2012-13
(7). आयकर अपील सं./I.T.A. No.499/Rjt/2014 for A.Y.2013-14
(1-5).M/s. Pearl Logistics & बनाम/ (1-5). The Income-tax
Ex-IM Corporation Officer, Internation
207, Nirmal Plaza, Vs. Taxation, Rajkot.
Above Allahabad Bank, Opp.
Shaneshwer Flat, Bhavnagar.
(6-7). The Income-tax Officer, (6-7). M/s. Pearl
Internation Taxation, Rajkot. Lo gistics &
Ex-IM Corporation
207, Nirmal Plaza,
Above Allahabad Bank,
Opp. Shaneshwer Flat,
Bhavna gar.
!थायी ले खा सं . /जीआइआर सं . / PAN/GIR No. : AAJFP 8182 F
(अपीलाथ& /Appellants) .. ('(यथ& / Respondents)
Assessee : Shri Ankit Gokani, A.R.
Revenue : Shri Pravin Kumar, Sr. D.R.
ु वाई क- तार ख /
सन Date of Hearing 31/01/2017
घोषणा क- तार ख /Date of Pronounce ment 20/03/2017
आदे श / O R D E R
PER SHRI MAHAVIR PRASAD, JUDICIAL MEMBER :
Out of these seven connecting appeals, five appeals have been filed by the assessee and remaining two have been filed by the Revenue ITA No.313/Rjt/2013, 658, 659, 660 & 661/Rjt/2012, 517/Rjt/2013, 499/Rjt/2014 M/s. Pearl Logistics & Ex-IM Corp. vs. ITO -2- against the order of the Commissioner of Income Tax(Appeals)- Gandhinagar, dated 15/05/2013 for the Assessment Years (AY) 2011-12, 08/10/2012 for the A.Y. 2010-11, 23/10/2013 for the A.Y. 2012-13 & 03/06/2014 for the A.Y. 2013-14.
2. In this case both the parties agreed and remaining that main connecting appeal leading case is ITA No. 313/Rjt/2013. In this case following Grounds have been taken:
i. Ld. AO has erred in law as well as on facts in assessing income of appellant at Rs.4,14,274/- u/s. 172(4)of the Act and denying benefit of India - Denmark DTAA, ignoring tax residency as well as other relevant details furnished and Ld. CIT (A) also erred in confirming the same.
ii. Ld. AO and Ld CIT(A) has erred in law as well as on facts in not accepting the contention of the appellant that M/s. Faber Shipbroker APS, Denmark, is only disponent owner of the vessel who is the actual Beneficiary of receipt of Freight and responsible for the entire taxation burden and payment of tax in Denmark.
iii. Ld. AO and Ld. CIT(A) has erred in law as well as on facts in stating that the payment received by the claimed disponent owner Faber Ship Broker of Denmark, would be in nature of hiring payment for charter and not freight for carrying goods. iv. Ld. AO has erred in law as well as on facts in stating that M/s.
CTI Group Inc., Jordan has chartered the ship & has transported goods & has earned freight and Ld. CIT(A) also erred in confirming the same.
v. The Ld. AO has erred in law in taxing income in India ignoring the fact that there is DTAA with Denmark i.e. country to which freight beneficiary belongs. Article 4 and particularly Article 9 of DTAA clearly mention that the income from shipping business ITA No.313/Rjt/2013, 658, 659, 660 & 661/Rjt/2012, 517/Rjt/2013, 499/Rjt/2014 M/s. Pearl Logistics & Ex-IM Corp. vs. ITO -3- is taxable in contracting state in which the place of effective management of enterprise is situated.
vi. The Ld. AO erred in not accepting the fact that the principal place of business and management of the Freight beneficiary (M/s. Faber Shipbroker APS) is in Denmark. Ignoring tax residency certificate issued by SKAT without valid reasons.
3. The facts of the cases are that in this case, the assessee/agent, M/s. Pearl Logistics & Ex-Im Corporation, Bhavnagar for two voyages during the FY 2010-11 for being freight beneficiary of M/s. Faber Ship Brokers APS, Denmark without paying freight tax. The return accompanied with certain details like Indemnity Bond etc. other than this supporting documents (i) summary statement of Faber Shipbroker APS, certificate dated 28.09.2008 signed by Jens Faber Andersen - President etc. For the sake of convenience and issue involved in the matter are in similar nature, hence, the entire voyage returns filed during the F.Y. 2010-11 relevant to AY 2011-12 are concluding and passing single order u/s. 172(4) of the Act.
4. The principal did not have regular business in the Port of Porbandhar only occasional business is doing as and when it got business. The returns filed by the agent/assessee had submitted copies of Master Certificate issued & signed by the each master of the vessel.
5. The details of ship loaded by the principal beneficiary in the port of Porbandhar - India are as Schedule -1 as under:-
Sr. Name of the Vessel Final Name of Freight DTAA No. with date of arrival return the port amount in claimed filed date Indian Rs.
01 M.V. Queen Arrow-1 02.02.2011 Porbandhar 2752344 87174 Dt. 26.01.2011
02. M. V. Queen Arrow -1 17.02.2011 Porbandhar 2771307 87774 ITA No.313/Rjt/2013, 658, 659, 660 & 661/Rjt/2012, 517/Rjt/2013, 499/Rjt/2014 M/s. Pearl Logistics & Ex-IM Corp. vs. ITO -4- 11.02.2011 Total 174948
6. On the prima facie verification of the documents it was noticed that certain details are required to be called for. Accordingly, this office had issued notice u/s. 172(4) of the Act. The contention of the letter is reproduced hereunder:-
"Sub: Calling of accounts/documents u/s. 172(5) of the Income-tax Act, 1961 in the case of M.V. Queen Arrow -1 of 26.01.2011 & M.V. Queen Arrow - 1 of 11.02.2011 for Principal beneficiary of M/s. Faber Shipbrokers APS- Denmark. Reg.
Please refer to your return dated 01.02.2011 and 15.02.2011.
On going through the submission made available on records, it was noticed that you have claimed DTAA benefit for the country of Denmark without any valid documents. Your attention is also invited for the following basic requirements for obtaining DTAA benefit.:-
ARTICLE 9: Shipping - 1. Profits derived from the operation of ships in international traffic shall be taxable only in the Contracting State in which the place of effective management of the enterprise is situated.
In other to obtain benefit of DTA, you will submit following details of the freight beneficiaries of the vessels:-
I) Please furnish latest amended Article of Association dated 02.07.1999 (as per your summary sheet).
II) Please that, Jens Faber Andersen, is General Manager of the company, therefore, you are requested to furnish following details:-
a) Please incorporation certification of M/s. Faber shipbroker APS -
Denmark.
ITA No.313/Rjt/2013, 658, 659, 660 & 661/Rjt/2012, 517/Rjt/2013, 499/Rjt/2014M/s. Pearl Logistics & Ex-IM Corp. vs. ITO -5-
b) Details of share holders of company with their nationality & address of M/s. Faber Shipbroker APS - Denmark.
c) During the year companies AGM wherein taken with complete address and also submit copy of the AGM M/s. Faber shipbroker APS - Denmark.
d) Details of Directors of the company and their nationality with complete residential address along with copy of passport of M/s. Faber shipbroker APS - Denmark.
III) Please furnish complete copy of freight invoice. IV) Please furnish copy of Form No. 15CA & 15CB for furnishing of information under sub-section (6) of section 195 for person responsible for making the payment to non-resident in respect of this voyage.
V) Please furnish copy of account demurrage paid to port or any other entity for this particulars voyage vessels. VI) Please furnish correct copy of income - tax return for Year -
2008 to 2011 filed by the principal beneficiary - of M/s. Faber shipbroker APS - Denmark before the competent authority in Denmark - As per Article-3 (h) of the DTAA agreement. VII) Please state, whether principal beneficiary - of M/s. Faber shipbroker APS - Denmark had filed income-tax return in India, if yes, please furnish copy of acknowledgement of return filed for AY 2007-08 to 2010-11 and state if any scrutiny assessment was carried out on this income, please furnish copy of the order u/s. 143(3) of the Act for AY 2007-08 to 2009-10.
ITA No.313/Rjt/2013, 658, 659, 660 & 661/Rjt/2012, 517/Rjt/2013, 499/Rjt/2014M/s. Pearl Logistics & Ex-IM Corp. vs. ITO -6- VIII) Please furnish freight beneficiary bank account for the period from 01.01.2011 to 30.04.2011 and also highlight the freight amount to US$ 60960 & US$ 61380 remitted on this account. IX) Please furnish voyage charter party agreement along with rider clause executed between owner - of M/s. Shipbroker APS - Denmark & charter M/s. CIT-Group Inc. Jordhan. X) Please furnish vessel registration certificate. XI) In order to verify the freight account of the principal of the vessel, you are requested to submit the following details -
a) Details of the freight payments made by the Indian Agent from his bank account to freight beneficiary/principal.
b) Copy of the disbursement account, maintained for this voyage
c) Copy of the Disbursement account submitted to the RBI for remittance of the net surplus in favour of Principals. The point wise details/explanation/clarification should be furnished along with documentary evidences on or before 23.11.2011. Please treat this letter as notice u/s. 172(5) of the Income-tax Act, 1961.
7. In response to the said notice, the agent/assessee had submitted details filing return u/s. 172(3) for obtaining port clearance u/s. 172 (6) of the Act. In this reply dated 23.11.2011 received by this office on 30.11.2011, the agent/explained as under:-
Copy of amended Article of Association dated 02.07.1999 is attached herewith.ITA No.313/Rjt/2013, 658, 659, 660 & 661/Rjt/2012, 517/Rjt/2013, 499/Rjt/2014
M/s. Pearl Logistics & Ex-IM Corp. vs. ITO -7-
a) Incorporation certificate of M/s. Faber Shipbrokers APS - Denmark is attached herewith.
b) The Jens Faber Andersen is a sole Proprietor of the company and tax registered here in Copenhagen, Denmark, tax number is 37050629 copy of passport of Jens Faber Andersen is attached herewith.
c) No AGM is held during the year as the company owned by the sole proprietor as mentioned in point above.
d) The Jens Faber Andersen is a sole proprietor of the company, and tax registered here in Copenhagen, Denmark - tax number is 37050628. Copy of passport of Jens Faber Andersen is attached herewith.
i. Complete copy of Freight invoice - The freight was not received from India but from the ultimate buyers i.e. Jorden. Copy of declaration made by Managing Director of Faber Shipbrokers is attached herewith.
ii. There is no payment made to a non-resident from India in respect of this voyage. Payment was made by the ultimate buyer from Jorden.
iii. The details are not possible.
iv. The company is resident of Denmark as certified tax authorities of Denmark. It is granted certificate of residence for the purpose of claiming benefit under the Denmark - India DTAA for freight. Therefore, it is liable to tax in Denmark. The copy of tax residency certificate is attached herewith. v. No freight was received from India. Further, the company is resident of Denmark as certified by Tax Authorities of ITA No.313/Rjt/2013, 658, 659, 660 & 661/Rjt/2012, 517/Rjt/2013, 499/Rjt/2014 M/s. Pearl Logistics & Ex-IM Corp. vs. ITO -8- Denmark. It is granted certificate of residence for the purpose of claiming benefit under the Denmark. - India, DTAA for freight. Therefore, it is liable to tax in Denmark. The copy of tax residency certificate is attached herewith. vi. No freight was received from India. The copy of fixture note and agreement stating the bank details is attached herewith. vii. Fixture note is the abridged legal format of charter party contemplated and legally recognized internationality evidencing the sailent data of charter party terms and conditions. The copy of fixture is attached herewith for your perusal.
viii. Copy of the vessel registration certificate is attached herewith.
ix. No payment is made by the Indian agent from his bank account to freight beneficiary.
8. As per Ld. AO, there were various factors involved in this case, such as agent/assessee had not submitted complete details called by the AO except the copy of vessels registration certificate and some more information ought to have been filed by the assessee. Hence, Ld. AO was not satisfied with the contention of the assessee.
9. As per AO, Assessee has claimed DTAA benefit with incriminating and forged documents. The action of the local agent has itself proved the same beyond doubt. Under the circumstance and narration and evidence of the case, the DTAA claimed is provisional & ITA No.313/Rjt/2013, 658, 659, 660 & 661/Rjt/2012, 517/Rjt/2013, 499/Rjt/2014 M/s. Pearl Logistics & Ex-IM Corp. vs. ITO -9- final return u/s. 172(3) of the Act is hereby withdrawn and finally demand u/s. 172(4) of Rs.1,74,948/- was raised.
10. Against the said order assessee preferred first statutory appeal before the Ld. CIT(A) who dismissed the appeal of the appellant.
11. We have heard both the parties and gone through the impugned order, in this case ship M/s. Faber Shipbrokers, Denmark is the desponent owner and ship was chartered by CIT Group Inc., Jordan for shipment of 10,160 M.T. of cement purchased from M/s. Saurashtra Cement Pvt. Ltd.
12. Ship arrived on Porbandar port on 16/01/2011 & 11/02/2011 and return u/s. 172(3) was filed on 02/02/2011 and 17/02/2011 for freight amount of Rs. 27,52,344/- and Rs. 27,71,307/- and amount chargeable to income tax u/s. 172(3) @ 7.5% is Rs.87,174/- and 87,774/- totaling to Rs.1,74,948/-.
13. Freight was payable by CTI Group Inc., Jordan to Faber Shipbrokers, Denmark (kindly refer clause no. 13 and 14 of charter party agreement at Page No.36 of Paper Book.)
14. Faber is owner and CTI Group Jordan is charterer (Refer para 3 & 4 of Charter Party agreement). As per Charter Party agreement - CTI Group Inc., Jordan is charterer and Faber Shipbroker, Denmark is the owner. (This can be verified from the signatories to Charter party agreement). Therefore, the agreement sought by CIT(A) about agreement ITA No.313/Rjt/2013, 658, 659, 660 & 661/Rjt/2012, 517/Rjt/2013, 499/Rjt/2014 M/s. Pearl Logistics & Ex-IM Corp. vs. ITO
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between CTI Group Inc., Jordan and Faber Shipbrokers, Denmark is Charter Party agreement was submitted before AO and CIT(A).
15. According to Section 172 of the Act, income of owner or charter who receives freight is chargeable to tax. In this case, freight is received by Faber Shipbrokers, Denmark and has earned the freight, so, the income of Faber Shipbroker, Denmark is chargeable to tax in India. Faber Shipbrokers is resident of Denmark and tax residency certificate of which is available on record. (Refer Page No.35 of paper book). So as per decision of Honorable SC in case of Azadi Bachao Andolan 132 taxman 373 (SC) the benefit of DTAA between India and Denmark shall be available to the Denmark resident.
16. Further, as per Article 9 of Indo Denmark DTAA, profits derived from the operation of ships in International Traffic shall be taxable only in the state where place of effective management of the enterprise is situated. In this case the 'POEM' of Denmark entity is situated in Denmark as • registration certificate • residence of shareholder • passport of owner All shows that Faber Ship Broker is resident of Denmark and its 'POEM' is in Denmark. Therefore 'head and brain' of Faber Ship Broker is situated in Denmark. Reliance placed on -
Radha Rani Holdings Pvt. Ltd.(110 TTJ 920) Saraswati Holding Corp. Int. Vs. DDIT (16 SOT 535) (D) De Beers Cons. Mines Ltd. (1906 AC 455) (HL) ITA No.313/Rjt/2013, 658, 659, 660 & 661/Rjt/2012, 517/Rjt/2013, 499/Rjt/2014 M/s. Pearl Logistics & Ex-IM Corp. vs. ITO
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Arabian Express Line Ltd. (212 ITR 31)
17. It is noteworthy that in that case of same assessee and on identical facts CIT(A) has allowed the benefit of DTAA to the assessee (Page No.53 to 84). However revenue has filed appeal against those orders in ITA No. 499/RJT/2014 and 517/RJT/2014.
18. Ld. CIT (A) has raised contention that Income of CTI Group Inc. Jordan is chargeable to tax is erroneous as it has neither an income accrued and arised u/s.5(2) read with section 9(1)(i) of the Income Tax Act. Therefore, nothing is chargeable to tax in the hands of Jordan Co. In fact, freight is received by Faber Shipbrokers Denmark. So it is Faber who is responsible for paying tax in India as per section 5(2) of the Income Tax Act.
19. In the entirety of facts and circumstances of the case, in our considered opinion appellant has proved the place of effective control and management of the appellant by furnishing several documents including declaration by director of company that it is completely 100% owned by Mr. Jens Faber Anderson, Copy of Passport of Director to prove that the nationality of director and company has been operating from Denmark. It can be concluded that the Director Mr. Jens Faber Anderson resides in Denmark is resident of Denmark and have been operating business wholly from Denmark, all the important decisions are taken from Denmark in the form of meeting and therefore, the place of effective management and control is Denmark only. The principal company is also engaged in international traffic and residence is ITA No.313/Rjt/2013, 658, 659, 660 & 661/Rjt/2012, 517/Rjt/2013, 499/Rjt/2014 M/s. Pearl Logistics & Ex-IM Corp. vs. ITO
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Denmark. Article 9 of the treaty between India and Denmark read as under -
Profits derived from the operation of ships in international traffic shall be taxable only in the Contracting State in which the place of effective management of the enterprise is situated.
Therefore, on the basis of Article 9 of the DTAA between India and Denmark, the income on account of operation of ship in International Traffic shall be taxable in the state in which the place of effective management is situated i.e. in this case Denmark.
Therefore, in view of the above discussion and considering Article-9 of the Treaty between India and Denmark and also the decision taken by the Department in earlier cases of the assessee, we hold that the ships operated in International Traffic and therefore, the income from ship shall not be taxed in India as per Article 9 of the Treaty. Therefore, on account of foregoing observation, appeal of the assessee/appellant is allowed.
20. In the result, appeal filed by the assessee in ITA No. 313/Rjt/2013 for the Assessment Year 2011-12 is allowed.
21. Now we take up the assessee's appeal in ITA No.658/Rjt/2012, 659/Rjt/2012, 660/Rjt/2012 & 661/Rjt/2012 for the A.Y.2010-11. The assessee has taken following common Grounds of Appeal:-
i. Ld. AO has erred in law as well as on facts in assessing income of Freight Beneficiary M/s. Faber Shipbroker APS of Rs.3,36,353/- (in ITA No.658/Rjt/2012), Rs.4,44,451/- (in ITA No.659/Rjt/2012), Rs.5,54,429/- (in ITA No.660/Rjt/2012), Rs.5,99,672/- (in ITA No.661/Rjt/2012) u/s. 172 of the Act in the hands of the appellant and Ld. CIT(A) also erred in confirming the same.
ii. Ld. AO and Ld CIT(A) has erred in law as well as on facts in not accepting the contention of the appellant that M/s. Faber ITA No.313/Rjt/2013, 658, 659, 660 & 661/Rjt/2012, 517/Rjt/2013, 499/Rjt/2014 M/s. Pearl Logistics & Ex-IM Corp. vs. ITO
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Shipbroker APS, Denmark, is only disponent owner of the vessel who is the actual Beneficiary of receipt of Freight and responsible for the entire taxation burden and payment of tax in Denmark.
iii. Ld. AO and Ld. CIT(A) has erred in law as well as on facts in stating that the payment received by the claimed disponent owner Faber Ship Broker of Denmark, would be in nature of hiring payment for charter and not freight for carrying goods. iv. Ld. AO has erred in law as well as on facts in stating that M/s.
CTI Group Inc., Jordan has chartered the ship as per the documents filled has transported goods & has earned freight and Ld. CIT(A) also erred in confirming the same. v. The Ld. AO and Ld. CIT(A) has erred in law in taxing income in India ignoring the fact that there is DTAA with Denmark i.e. country to which freight beneficiary belongs. Article 4 and particularly Article 9 of DTAA clearly mention that the income from shipping business is taxable in contracting state in which the place of effective management of enterprise is situated.
22. Since we have allowed the ITA No. 313/Rjt/2013, same outcome shall apply in these appeals in ITA No.658, 659, 660 & 661/Rjt/2012, therefore, appeal of the assessee is allowed.
23. Revenue's Appeal in ITA No. 517/Rjt/2013 (for the A.Y. 2012-
13) & 499/Rjt/2014 (for the A.Y.2013-14) :- Department/revenue has taken following Grounds of Appeal in ITA No.517/Rjt/2013 for the Assessment Year 2012-13:-
i. The Ld. CIT(A) has erred in law and on facts on this issue of applicability of Article-4-Resident and Article-9-Shipping in which the principal beneficiary did not have regular shipping business in India.
ii. The Ld. CIT(A) has erred in law and on facts by holdings that the freight beneficiary of the vessel is M/s. Faber Shipbroker APS- Denmark instead of freight received by M/s. CIT Group Inc., Jordan. The country of Jordan, the Government of India did not have comprehensive tax treaty.
iii. The Ld. CIT(A) has erred in law and on facts by holding that freight beneficiary of the vessel is M/s. Faber Shipbroker APS-ITA No.313/Rjt/2013, 658, 659, 660 & 661/Rjt/2012, 517/Rjt/2013, 499/Rjt/2014
M/s. Pearl Logistics & Ex-IM Corp. vs. ITO
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Denmark without verifying or filing a copy of bank account/bank certificate of the actual freight beneficiary of the vessel. iv. The Ld.CIT(A) has erred in law and on facts that determined freight beneficiary of the vessel is M/s. Faber Shipbroker APS - Denmark based on the charter party agreement instead of verifying the bank account of freight remittance. v. The Ld. CIT(A) has erred in law and on facts that freight amount received or deemed to be received in India by or on behalf of the assessee on account of carriage of passengers, livestock, mail or goods shipped at any port outside India is neither taxed in India nor paid tax in Denmark, which violation of Chapter IX - Double taxation relief - agreement with foreign countries u/s. 90(1) of the Act.
vi. The Ld. CIT(A) has erred in law and on facts by ignoring the comprehensive DTAA Agreement of India & Denmark in respect of Article-9-Shipping that Profits derived from the operation of ships in international traffic shall be taxable only in the Contracting State in which the place of effective management of the enterprise is situated.
vii. The Ld.CIT(A) has erred in law and on facts in stating reliance on decision taken by his predecessor, in allowing the appeals; wherein factually, the predecessor had dismissed the earlier appeal of the assessee vide Appeal No. CIT(A)/GNR/99 & 101/Intl.taxn./2010-11 dtd. 02/07/2012. viii. The Ld. CIT(A) has erred in law and on facts in deciding the appeals without calling upon various documents as mentioned in statement of facts enclosed.
ix. the Ld. CIT(A) has erred in law and on facts that judicial analysis supported by recent decision of Hon'ble Delhi Bench Tribunal in the case of SMR Investment Ld., Vs. Dy. DIT [2010] 12 ITAT India 866 wherein it was held that merely Tax Residency Certificate is not enough to conclude the residential status.
x. On the facts and circumstances of the case Ld. CIT(A) may ought to have upheld the order of the AO.
xi. It is therefore, prayed that the order of the Ld. CIT(A) may be set aside and that of the Assessing Officer be restored to the above extent.awaw
24. Department/revenue has taken following Grounds of Appeal in ITA No. 499/Rjt/2014 for the A.Y.2013-14. i. The Ld. CIT(A) has erred in law and on facts by holdings that the actual freight beneficiary of the vessel is M/s. Faber Shipbroker ITA No.313/Rjt/2013, 658, 659, 660 & 661/Rjt/2012, 517/Rjt/2013, 499/Rjt/2014 M/s. Pearl Logistics & Ex-IM Corp. vs. ITO
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APS-Denmark instead of freight received by M/s. CIT Group Inc., Jordan as held by the Assessing Officer. ii. The Ld. CIT(A) has erred in law and on facts by holding that freight beneficiary of the vessel is M/s. Faber Shipbroker APS- Denmark merely on the basis of charter party agreement instead of verifying the bank account of freight remittance, without verifying or filing a copy of bank account/bank certificate of the actual freight beneficiary of the vessel.
iii. The Ld. CIT(A) has erred in law and on facts by ignoring the comprehensive DTAA Agreement of India & Denmark in respect of Article-9-Shipping that Profits derived from the operation of ships in international traffic shall be taxable only in the Contracting State in which the place of effective management of the enterprise is situated.
iv. The Ld.CIT(A) has erred in law and on facts in stating reliance on decision taken by his predecessor, in allowing the appeals; wherein factually, the predecessor had dismissed the earlier appeal of the assessee vide Appeal No. CIT(A)/GNR/99 & 101/Intl.taxn./2010-11 dtd. 02/07/2012.
v. The Ld. CIT(A) has erred in law and on facts in deciding the appeals without calling upon various documents as mentioned in statement of facts enclosed.
vi. the Ld. CIT(A) has erred in law and on facts in not following the judicial analysis supported by recent decision of Hon'ble Delhi Bench Tribunal in the case of SMR Investment Ld., Vs. Dy. DIT [2010] 12 ITAT India 866 wherein it was held that merely Tax Residency Certificate is not enough to conclude the residential status.
vii. On the facts and circumstances of the case Ld. CIT(A) ought to have upheld the order of the AO.
viii. It is therefore, prayed that the order of the Ld. CIT(A) may be set-aside and that of the Assessing Officer be restored to the above extent.
ix. Any other ground that may be urged at the time of hearing.
25. Since we have allowed appeal of the assessee in ITA No. 313/Rjt/2013, ITA No.658, 659, 660 & 661/Rjt/2012. We are not inclined to accept the contention of the Department and Department's both the appeals in ITA No.517/Rjt/2013 & 499/Rjt/2014 are dismissed.
ITA No.313/Rjt/2013, 658, 659, 660 & 661/Rjt/2012, 517/Rjt/2013, 499/Rjt/2014M/s. Pearl Logistics & Ex-IM Corp. vs. ITO
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26. In the result, appeals filed by the assessee in ITA No. 313/Rjt/2013, ITA No.658, 659, 660 & 661/Rjt/2012 are allowed and appeals filed by the Department in ITA No.517/Rjt/2013 & 499/Rjt/2014 are dismissed.
This Order pronounced in Open Court on 20/03/2017
Sd/- Sd/-
(PRADIP KUMAR KEDIA) ( MAHAVIR PRASAD )
ACCOUNTANT MEMBER JUDICIAL MEMBER
Ahmedabad; Dated 20/03/2017
Priti Yadav, Sr. PS
आदे श क
त ल प अ े षत/Copy of the Order forwarded to :
1. अपीलाथ& / The Appellant
2. '(यथ& / The Respondent.
3. संबं
धत आयकर आयु4त / Concerned CIT
4. आयकर आयु4त(अपील) / The CIT(A)-Gandhinagar.
5. 5वभागीय '8त8न ध, आयकर अपील य अ धकरण, अहमदाबाद / DR, ITAT, Ahmedabad
6. गाड= फाईल / Guard file.
आदे शानुसार/ BY ORDER, स(या5पत '8त //True Copy// उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील!य अ"धकरण, अहमदाबाद / ITAT, Ahmedabad True Copy
1. Date of dictation 22/02/2017 (dictation-pad 8 pages attached at the end of this appeal-file)
2. Date on which the typed draft is placed before the Dictating Member 27/02/2017
3. Other Member...
4. Date on which the approved draft comes to the Sr.P.S./P.S...27/02/2017
5. Date on which the fair order is placed before the Dictating Member for pronouncement......
6. Date on which the fair order comes back to the Sr.P.S./P.S.......
7. Date on which the file goes to the Bench Clerk.....................
8. Date on which the file goes to the Head Clerk..........................................
9. The date on which the file goes to the Assistant Registrar for signature on the order..........................
10. Date of Dispatch of the Order..................