2009 (3) TMI 80 - HC - Income Tax

High Court affirms Tribunal decision for assessee, invalidates re-assessment, grants Section 80-O benefits to shipping agent

The High Court affirmed the Tribunal's decision in favor of the assessee on all three issues. The re-assessment was invalidated as it constituted a change ... Rendering of the commercial service and receiving commission in foreign exchange – during reassessment, claim for benefit u/s 80O was denied by AO - Tribunal allowed the appeal of the assessee for A.Y. 1994-95 and 1995-96 on the ground that the re-assessment was not in accordance with Section 147 and was made on change of opinion - In respect of the other two assessment years also, the Tribunal allowed the assessee's appeal on the ground that the activity of the assessee comes within the purview of Section 80-O as decided by the Delhi Bench in CAPTAIN K.C.SAIGAL (1995 (4) TMI 95 - ITAT DELHI) and the receipt of commission in foreign exchange in India itself cannot deny the benefit to the assessee in view of the judgment of SC in the case of J.B.BODA AND CO. PVT. LTD. (1996 (10) TMI 70 - SUPREME Court) – held that there is no infirmity in order of tribunal Issues Involved:1. Whether the re-assessment proceedings to deny the benefit of Section 80-O constituted a change of opinion.2. Whether the assessee is entitled to the benefit of Section 80-O despite not receiving any amount in foreign exchange.3. Whether the benefit of Section 80-O is available to a shipping agent.Detailed Analysis:Issue 1: Change of Opinion in Re-assessment ProceedingsThe Tribunal held that the re-assessment proceedings were based on a change of opinion, which is not permissible under Section 147 of the Income Tax Act. The original assessment was completed after obtaining all necessary details and allowing the deduction under Section 80-O. There was no new material or evidence of suppression of facts by the assessee. The re-opening of the assessment was initiated by the same assessing officer who had passed the original order, and no fresh material was cited in the notice under Section 148. The settled proposition of law, as referenced in various judgments including Jindal Photo Films Ltd. Vs. Deputy CIT and Govind Chhapabhai Patel Vs. Deputy Commissioner of Income-tax, confirms that a change of opinion cannot justify re-opening an assessment. Therefore, the Tribunal's decision to allow the appeal on the grounds that the re-opening was bad in law was affirmed.Issue 2: Entitlement to Section 80-O Benefits Without Receiving Foreign ExchangeThe Tribunal found that the assessee's activities, which involved providing commercial information to foreign ship owners and receiving commission, fell within the purview of Section 80-O. The assessee's services were considered 'information concerning industrial, commercial or scientific knowledge, experience or skill.' This interpretation aligns with the Delhi Bench Tribunal's decision in CAPT. K.C. SAIGAL VS. ITO and the Supreme Court judgment in J.B.BODA AND CO. PVT. LTD. VS. CENTRAL BOARD OF DIRECT TAXES, which held that the receipt of commission in foreign exchange in India does not deny the benefit of Section 80-O. The Tribunal's decision was supported by various case laws, including Mittal Corporation's case and Godrej and Boyce Mfg. Co. Ltd. Vs. Potnis (S.B.), CIT (Chief), which interpreted 'commercial information' broadly.Issue 3: Applicability of Section 80-O to Shipping AgentsThe assessee, a shipping agent, provided commercial services to foreign ship owners and received commission in convertible foreign exchange. The Tribunal recognized these activities as falling under Section 80-O, which includes services rendered concerning industrial, commercial, or scientific knowledge. The Tribunal's decision was reinforced by the CBDT Circular No. 700 dated March 23, 1995, which clarified that services rendered from India and received by a foreign entity qualify for Section 80-O benefits, even if the foreign recipient utilizes the services in India. The Supreme Court's decision in J.B.BODA AND CO. PVT. LTD. further supported this view, stating that formal remittance and subsequent receipt of commission are unnecessary, and retaining brokerage in India amounts to receiving income in convertible foreign exchange.ConclusionThe High Court affirmed the Tribunal's decision on all three issues, ruling in favor of the assessee. The re-assessment was deemed invalid as it was based on a change of opinion. The assessee was entitled to Section 80-O benefits despite not receiving foreign exchange directly, and the benefits were applicable to the shipping agent's activities. The appeals were dismissed.