Itxa/81/2015 Of The Commissioner Of Income Tax-5 v. Cgu Logistic Ltd

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDITION INCOME TAX APPEAL NO.81 OF 2015 The Commissioner of Income Tax-5, Mumbai ...AppellantV/s.CGU Logistic Ltd....Respondent ..... Mr.N.C.Mohanty, Advocate for the Appellant. Mr.Nishant Thakkar i/by Mind and Confreres, Advocate for theRespondent. .... CORAM :S.V.GANGAPURWALA &A.M.BADAR JJ. DATED :24[th] July 2017. P.C. 1The present Appeal pertains to the Assessment Year2011-12. 2Mr.Mohanty, the learned counsel for the Appellantsubmits that the Tribunal was not justified in holding that FEFG ofRs.7.53 crores is not taxable in this year under Section 43A of theAct. According to the learned counsel, the Assessee had notpurchased the Ship. If the Assessee would have purchased theship, then the Judgment of the Tribunal could have beenappreciated. However, in absence of utilizing the loan for the purpose of purchasing the ship, the Assessee is not entitled for thebenefit. 3The learned counsel further submits that specificfinding is arrived at by the Commissioner to the effect that no suchship has been purchased so as to utilize amount of loan and thereis no addition to the fixed assets schedule towards acquisition ofnew ship. 4The learned counsel further submits that the amountof Rs.23.11 Lakhs had not arisen to Revenue account. TheTribunal erred in holding that FEFG Of Rs.23.11 Lakhs is coveredunder the Income offered under the TTS under Chapter XX-G ofthe Act. 5The learned Senior Advocate for the Respondentsubmits that the Tribunal has rightly held that the loan has beenutilized for the purpose of purchase of ship. Even theCommissioner comes to the conclusion that the Assessee hasacquired 'Vessel Bulk Prosperity'. The same is subject matter of theagreement for which the loan was advanced to the presentAssessee. The learned Senior Advocate further submits that as faras revenue expenditure of Rs.23.11 lakhs is concerned, it iscovered by the Judgment in Income-Tax Appeal No.2394 of 2009dated 13[th] January 2010. 6We have considered the submissions and have gonethrough the Orders passed. The Tribunal has accepted that theAssessee has utilized the loan for the purpose of purchase of ship.It is also not disputed by the learned counsel for the Revenue thatif the Assessee has utilized the loan for the purpose of purchase ofship, then the benefit given by the Tribunal cannot be disputed.However, contention of the learned counsel for the Revenuerelying on the observations of the Commissioner (Appeals) in theJudgment is that the Assessee has not purchased the ship from theloan which has been advanced, does not appear to be proper. TheCommissioner in its Judgment has accepted that the Assessee hasacquired Vessel Bulk Prosperity. On perusing the agreementbetween the Assessee and the party advancing loan, the ship, as issubject matter of the said agreement, means 10500 deadweighttonne motor vessel bulk cargo transhipper known as “BulkProsperity”. The Commissioner accepts that the Assessee hasacquired Bulk Prosperity. In view of this, the finding of theTribunal that the Assessee has acquired the ship from the loanadvanced is not perverse and the same is based on documentaryevidence. We do not find any perversity in the same. Evenfinding of the Tribunal holding that the FEFG of Rs.23.11 lakhscannot be separately taxed as FEFG as the Assessee offered incomeunder the TTS is concerned, the same is covered by the Order ofthis Court in Income-Tax Appeal No.2394 of 2009 dated 13[th]January 2010. 7In light of above, no substantial question arises. TheAppeal, as such, is dismissed. No costs. ( A.M.BADAR J.) ( S.V.GANGAPURWALA J.)