TaxTMI 
TaxTMI 
2013 (2) TMI 69
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....bad for the assessment year 2009-10 against which the assessee has also filed C.O. Since common issue is involved, the revenue's appeal and assessee's C.O. are disposed of by this common order for the sake of convenience. 3. Briefly stated facts of the case are that the assessee Evergreen Shipping Agency (India) (P) Ltd. (ESA) as an agent of Evergreen Marine Corporation (Taiwan) Ltd. (EMC) filed the return u/s 172 (3) of the Income Tax Act, 1961 (the Act) for FAR SINGAPORE - 003E voyages sailed from Mundra Port on 25-4-2008 with Asst. Director of Income Tax, (International Taxation), Gandhidham on 15-5-2008 showing total freight and THC Rs. 4,19,82,717.88 which was accepted by the A.O. as shown vide order dtd. 7-7-2009 passed u/s 172(4) ....
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....e submission before me have been considered. It is seen that tax is to be paid by the master of the ship. As per section 172(3) itself, the return is to be filed "of the full amount paid or payable to the owner or charterer or any person on his behalf, on account of the carriage of all passengers, livestock, mail or goods shipped at that port since the last arrival of the ship thereat". The provisions are very clear. The amount payable has to be goods etc., shipped at that port only. No other amount for shipment at other ports is taxable under this return. So, any mathematical mistake could not bring into tax anything which is not taxable under this section. Further, from the reading of the Act, it is clear that there ....
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.... being taxable income freight & THC is Rs. 41,982,817/-. On the facts and in the circumstances of the case the Ld. CIT(A) ought to have upheld the order of the Assessing Officer. It is therefore prayed that the order of the Ld. CIT(A) be set aside and that of the assessing Officer be restored to the above extents." 7. At the time of hearing the ld. D.R. submits that the A.O. has passed the order u/s 172(4) of the Act on the income shown by the assessee, therefore, there is no mistake in the order of the A.O. in rejecting the assessee's application. He further submits that under the provisions of section 172(3) and 172(4) of the Act there is no provision to revise the return filed by the assesse....
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....oc assessment made u/s 172(4) of the Act is suspended. He, therefore, submits that the order passed by the A.O. u/s 172(4) of the Act stands suspended and, hence, not enforceable. 9. We have carefully considered the submissions of the rival parties and perused the material available on record. We find that the facts are not in dispute inasmuch as it is also not in dispute that the assessee has filed its return u/s 172(4) of the Act showing total freight and THC at Rs. 4,19,82,717.88 instead of Rs. 2,06,66,514/-. The assessee vide rectification application dtd. 5-3-2010 contended that aggregate total of freight and THC is Rs. 2,06,66,514/- and due to typographical mistake the same has been mentioned as Rs. 4,19,82,717.88. However, the A.O....
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....e Incometax Officer to levy and recover tax in the case of any ship belonging to a non-resident in a summary manner (ad hoc assessment) notwithstanding anything contained in the other provisions of the Act. It is an absolute right conferred on the assessing authority. The assessee has no right to object to the same. Normally, this will be the assessment of the assessee for the year. But, under section 172(7) of the Act, a right is given to the assessee to claim before the expiry of the assessment year relevant to the previous year, in which the date of departure of the ship from the Indian port falls, that an assessment according to the provisions of the Act, in a regular manner, be made. Thus a right is given to the assessee to opt for a r....
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....nstruing the said legal fiction, it will be proper and necessary to assume all those facts on which alone the fiction can operate. So, necessarily, all the provisions in the Act in respect of the payment of advance tax will apply. On effecting the regular assessment, if there is any excess payment made by the assessee, then the assessee would be entitled to refund of the excess amount paid and also interest, for payments made in excess of the tax assessed". 11. Since in the case before us the assessee even at this stage has not filed the break up of the amount of Mundra branch shown at Rs. 287,203,305/- in which, according to the assessee, the amount of Rs. 2,06,66,514/- is included and there is no amount of Rs. 4,19,82,717.88 included i....