TaxTMI 
TaxTMI 
2018 (8) TMI 1645
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....1961 (hereinafter called "the Act") in pursuance of directions dated 29.11.2016 issued by learned Dispute Resolution Panel-1(WZ), Mumbai (hereinafter called "the DRP"), for assessment year 2013-14. 2. The grounds of appeal raised by the assessee in the memo of appeal filed with the Income-Tax Appellate Tribunal, Mumbai (hereinafter called "the tribunal") read as under:- "The Appellant appeals against the impugned order dated 31st January, 2017 passed by the Deputy Commissioner of Income Tax (IT)-2(2)(2) Mumbai (received by the Appellant on 2nd February, 2017) under section 143(3) r.w.s. 144C(13) of the Income tax Act, 1961 (the Act) on the following amongst other grounds each of which is in the alternative and without prejudice ....
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....u/s 44B of the 1961 Act from operation of ships. The assessee collected said amount of Rs. 35, 25, 40, 620/- towards service tax which is stated to be deposited with Government Treasury and the assessee excluded said sum from the aggregate amount received from the business of operations of ships while computing presumptive tax u/s 44B of the 1961 Act. The learned DRP was of the view that this service tax component of Rs. 35.25 crore is to be included in the gross receipts for the purpose of presumptive taxation as per the provision of Section 44B of the Act. 4. The learned DRP while issuing directions u/s. 144C(5) of the 1961 Act noted that tribunal in assessee's own case for AY 2007-08 and 2008-09 in ITA no. 8672/Mum/2010 and ITA no. 70....
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....ss receipt for computing presumptive tax u/s 44B of the 1961 Act. We have also noted that tribunal in assessee's own case for AY 2010-11 in ITA no. 5277/Mum/2014 vide orders dated 13.05.2016 has again decided the issue in favour of the assessee . Thus, we have observed that tribunal in assessee's own case for preceding years has taken a consistent view that service tax shall be included in the gross turnover while computing presumptive income u/s. 44B of the Act. The order of the tribunal for AY 2010-11 in ITA no. 5277/Mum2014 vide orders dated 13.05.2016 is reproduced hereunder:- " The present appeal has been preferred by the assessee against the order dated 24.06.2013 of the Commissioner of Income Tax (Appeals) [hereinafter refer....
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.... shipping be taxed under section 44B of the Income Tax Act on presumptive basis at the rate of 7.5% of the aggregate amount as per the provisions of section 44B of the Act read with Article 9 of the DTAA between India and Korea. The controversy involved in this appeal is as to whether the service tax collected during the year should be a part of the gross receipts for the purpose of the computation of income or the gross receipts are to be taken exclusive of sales tax receipts. The Assessing Officer (hereinafter referred to as the AO) while relying upon the Authority of Advance Ruling (AAR) in the case of "Siem Offshore Inc" reported in (2011) 337 ITR 027 observed that the gross receipts should be taken inclusive of the service tax for the ....
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.... the assessment order for A.Y. 2012-13 wherein the AO, while giving effect to the directions of the DRP, has not included the service tax in the gross income of the assessee for the purpose of calculation of presumptive profits under section 44B of the Act. The copy of the DRP directions dated 24.11.15 for A.Y. 2012-13 have also been placed on file. The assessee has also relied upon the decision of the Hon'ble Delhi High Court in the case of "DIT vs. Mitchell Drilling International Pvt. Ltd." (2015) 62 Taxman.com 24 (Delhi). On the other hand, the Ld. D.R. has relied upon the finding of the lower authorities. 6. We have heard the rival contentions and have also gone through the records. We find that the co-ordinate bench o....
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....o-ordinate bench of the Tribunal in the case of "Islamic Republic of Iran Shipping Lines vs. Dy.DIT" ITA No.4877/M/2014 for A.Y. 2010-11 vide order dated 17.02.16 has observed that though the co-ordinate bench of the Tribunal in the case of M/s. China Ship Container Lines (Hong Kong) Company Ltd." (supra) has decided the issue in favour of the Revenue, however, the Hon'ble Delhi High Court, which is a higher authority, in the case of "DIT vs. Mitchell Drilling International Pvt. Ltd." (supra) has decide the issue in favour of the assessee. The co-ordinate bench of the Tribunal has further observed that since the issue under consideration has already been decided in the own case of the assessee and further that the Mumbai Bench of the Tribun....