Neptune Orient Lines Ltd v. Dy.commr. Of Income Tax Sp. Range 31 Mumbai & Anr

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION I.T. APPEAL NO. 561 OF 2004WITH I.T. APPEAL NO. 612 OF 2003. Neptune Orient Lines Ltd. ...... ......Appellant.V/sDy.Commr. Of Income Tax Sp. Range 31 Mumbai & Anr.......... .....Respondents. Ms.A.Vuissanji with Mr.S.J.Mehta, Adv. for the appellant.Mr.Vimal Gupta, Adv. for the respondents. CORAM:SWATANTER KUMAR, C.J. &A.P.DESHPANDE, J.DATED: 15[th] JULY, 2008. PC: Present appeal is directed against the order dated 17.1.2003passed by the Income Tax Appellate Tribunal, Mumbai accepting theappeal filed by the Revenue and while relying upon its earlier viewtaken in the case of M/s.Frata Container Lines Pvt. Ltd. in ITANo.2845/Mum/96, for the year 1992-93 that after insertion ofexplanation having retrospective effect from 1.4.1976 the demurragecharges, handling charges, terminal charges, detention charges andcharges of similar nature are subject to tax u/s.44B. Aggrieved fromthis finding the assessee has filed the present appeal primarily on the ground of inclusion of demurrage and detention charges and haveraised the following two questions of law: i)Whether on the facts and circumstances of the caseincome on the receipts by way of detention charges, demurragecharges and terminal handling charges is liable to be taxed andincluded in the income of the Appellant computed under theIncome Tax Act 1961? ii)Whether on the fact and circumstances of the case theappellant having been assessed under the DTAA between Indiaand Singapore, income on receipts by way of demurrage chargesterminal handling charges and detention charges is liable to betaxed under the Income Tax Act, 1961? 2.As far as the second question framed by the assessee isconcerned the same was never raised before any authority and issought to be raised before this Court for the first time. We decline toentertain the same in view of the fact that the appellant never raisedthis issue before any other authority. As far as the first question isconcerned it is not in dispute that the law was amended in the year1997 with effect from 1.4.1976 and keeping in view the CBDTcircular dated 18.2.1998 and the amended provisions of law the viewtaken by the Income Tax Appellate Tribunal cannot be faulted with asthey have accepted and decided the matter in accordance with lawwhich was in existence. By operation of law no situation changedbetween the assessee in filing return and the decision of the Tribunal as the law was made effective from 1.4.1976. No question of lawmuch less a substantial question of law is involved. Hence appeal isdismissed. CHIEF JUSTICE (A.P.DESHPANDE, J.)