IN HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 1376 OF 2017 Commissioner of Income Tax (IT)-2. Appellant. V/s. M/s.Hapag Lloyd AG. Respondent. Mr.Tejveer Singh for Appellant. Ms.Jasmine Amalsadwala i/b. PDS Legal for Respondents. CORAM : NITIN JAMDAR AND M.S. KARNIK, JJ. DATE : 7 January 2020. P.C. : Heard learned counsel for parties. 2. appeal pertains to assessment year 2011-12. Appellant- Revenue has urged following questions for our consideration: a) "Whether on facts and circumstances of case and in law income of assessee by way of slot chartering would form part of income from operation of ship exempt under Article 8 of Tax Treaty between India and Germany by wrongly interpreting term profit from operation of ship as laid down in treaty?" "Whether income of respondent on account of slot chartering and use of containers in India is taxable u/s 44B or 28 to 43 of Act?" c) "Whether on facts and circumstances of case and in law, ITAT erred in stating that India-UK and Indo- German treaty are similar for deciding on issue of slot chartering when India-UK DTAA is specifically provided with clause 4 to include income from use, maintenance or rental of containers including trailers and related equipments for transport of containers and also endowed with clause 6 which uses term 'ships' co-terminously with 'containers', both of which are conspicuously absent in India- German treaty and thereby differentiable from case of M/s Balaji Shipping UK?" d) "Whether on facts and circumstances of case and in law, ITAT erred in concluding that slot chartering is ancillary activities to operation of ship and this included within meaning of 'operation of ships' when nearly all DTAAs, though have specifically included profits from pooling of ships in meaning of profits from shipping, have left no scope for slot chartering, as freight transfer through slot chartering is independent to operation of ships by assessee?" 3. learned counsel for Appellant fairly points out that this question of law came up for consideration of this Court in Income Tax Appeal No.602/2014 in Respondent-Assessee s own case for assessment year 2007-08 wherein, on 28 April 2016, following order was passed: This Appeal under Section 260-A of Income Tax Act, 1961(the Act), challenges order dated 14 th August, 2013 passed by Income Tax Appellate Tribunal (the Tribunal) for Assessment Year 2007-08. ::: Uploaded on - 10/01/2020 ::: Downloaded on - 11/01/2020 10:04:01 ::: skn 3 1376.17-itxa.doc 2 Revenue has urges only following question of law for our consideration: Whether on facts and in circumstance of case and in law, income of assessee by way of slot chartering would from part of income from operations of ships exempt under Article 8 of DTAA? 3 We find that impugned order of Tribunal has allowed Respondent's appeal by following decision of this Court in Director of Income Tax (International Taxation) v/ s. Balaji Shipping UK Ltd., (2012) 211 Taxmann page 535. In above case, this Court was concerned with Article 9(1) of Indo-UK DTAA. In present case, Article 8 of Indo-Germant -DTAA which is similar to Article 9(1) of Indo-UK DTAA, arises for consideration. Therefore, impugned order allowed Respondent-Assessee's appeal before it by following decision of this Court in Balaji Shipping UK Ltd., (supra). 4 Mr. Tejveer Singh, learned Counsel appearing for Revenue very fairly states that issue stands concluded in favour of Respondent-Assessee by decision of this Court in Balaji Shipping UK (supra). 5 In view of above, question as framed does not give rise to any substantial question of law. Thus, not entertained. 6 Accordingly, Appeal dismissed. No order as to costs. 4. In view of above order, present appeal and questions as proposed do not give rise to any substantial question of law. Appeal is, therefore, dismissed. (M.S. KARNIK, J.) (NITIN JAMDAR, J.) Commissioner of Income-tax (IT)-2 v. Hapag Lloyd AG