M/s. Kvaerner Oil Field Products (Services) Pte. Ltd., Gurgaon V. ADIT, Dehradun

CO 21/DEL/2012

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 7415 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 20 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 27-06-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 27-06-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 07-02-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH D DD D : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND SHRI SHRI SHRI SHRI I.C.SUDHIR I.C.SUDHIR I.C.SUDHIR I.C.SUDHIR, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER ITA NO ITA NO ITA NO ITA NO.5572/DEL/2011 .5572/DEL/2011 .5572/DEL/2011 .5572/DEL/2011 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 200 200 200 2003 33 3- -- -04 0404 04 ASSISTANT DIRECTOR OF ASSISTANT DIRECTOR OF ASSISTANT DIRECTOR OF ASSISTANT DIRECTOR OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, INTERNATIONAL TAXATION, INTERNATIONAL TAXATION, INTERNATIONAL TAXATION, INTERNATIONAL TAXATION, D DD DEHRADUN. EHRADUN. EHRADUN. EHRADUN. VS. VS. VS. VS. M/S KVAERNER ENERGY LTD. M/S KVAERNER ENERGY LTD. M/S KVAERNER ENERGY LTD. M/S KVAERNER ENERGY LTD. A/A OF GE ENERGY SERVICES UK, A/A OF GE ENERGY SERVICES UK, A/A OF GE ENERGY SERVICES UK, A/A OF GE ENERGY SERVICES UK, C/O S.R.BATLIBOI & CO., C/O S.R.BATLIBOI & CO., C/O S.R.BATLIBOI & CO., C/O S.R.BATLIBOI & CO., GOLF VIEW, CORPORATE TOWER B, GOLF VIEW, CORPORATE TOWER B, GOLF VIEW, CORPORATE TOWER B, GOLF VIEW, CORPORATE TOWER B, SECTOR SECTOR SECTOR SECTOR- -- -42, SECTOR ROAD, 42, SECTOR ROAD, 42, SECTOR ROAD, 42, SECTOR ROAD, GURGAON GURGAON GURGAON GURGAON 122 002. 122 002. 122 002. 122 002. (APPELLANT) (RESPONDENT) CROSS OBJECTION NO.20/DEL/2012 CROSS OBJECTION NO.20/DEL/2012 CROSS OBJECTION NO.20/DEL/2012 CROSS OBJECTION NO.20/DEL/2012 (IN ITA NO.5572 (IN ITA NO.5572 (IN ITA NO.5572 (IN ITA NO.5572/DEL/2011) /DEL/2011) /DEL/2011) /DEL/2011) ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 2003 2003 2003 2003- -- -04 0404 04 M/S KVAERNER ENERGY LTD. M/S KVAERNER ENERGY LTD. M/S KVAERNER ENERGY LTD. M/S KVAERNER ENERGY LTD. AS A REPRESENTATIVE ASSESSEE AS A REPRESENTATIVE ASSESSEE AS A REPRESENTATIVE ASSESSEE AS A REPRESENTATIVE ASSESSEE OF OF OF OF GE ENERGY SERVICES UK LTD., GE ENERGY SERVICES UK LTD., GE ENERGY SERVICES UK LTD., GE ENERGY SERVICES UK LTD., C/O S.R.BATLIBOI & CO., C/O S.R.BATLIBOI & CO., C/O S.R.BATLIBOI & CO., C/O S.R.BATLIBOI & CO., 16 1616 16 TH THTH TH FLOOR, THE RUBY, FLOOR, THE RUBY, FLOOR, THE RUBY, FLOOR, THE RUBY, 29, SENAPATI BAPAT MARG, 29, SENAPATI BAPAT MARG, 29, SENAPATI BAPAT MARG, 29, SENAPATI BAPAT MARG, DADAR WEST, DADAR WEST, DADAR WEST, DADAR WEST, MUMBAI MUMBAI MUMBAI MUMBAI 400 028. 400 028. 400 028. 400 028. VS. VS. VS. VS. ASSISTANT DIRECTOR OF ASSISTANT DIRECTOR OF ASSISTANT DIRECTOR OF ASSISTANT DIRECTOR OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, INTERNATIONAL TAXATION, INTERNATIONAL TAXATION, INTERNATIONAL TAXATION, INTERNATIONAL TAXATION, DEHRADUN. DEHRADUN. DEHRADUN. DEHRADUN. (APPELLANT) (RESPONDENT) ITA NO ITA NO ITA NO ITA NO.5573 .5573 .5573 .5573/DEL/2011 /DEL/2011 /DEL/2011 /DEL/2011 ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 2003 2003 2003 2003- -- -04 0404 04 ASSISTANT DIRECTOR OF ASSISTANT DIRECTOR OF ASSISTANT DIRECTOR OF ASSISTANT DIRECTOR OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, INTERNATIONAL TAXATION, INTERNATIONAL TAXATION, INTERNATIONAL TAXATION, INTERNATIONAL TAXATION, DEHRADUN. DEHRADUN. DEHRADUN. DEHRADUN. VS. VS. VS. VS. M/S AKER SOLUTIONS (SERVICES) M/S AKER SOLUTIONS (SERVICES) M/S AKER SOLUTIONS (SERVICES) M/S AKER SOLUTIONS (SERVICES) PTE.LTD., PTE.LTD., PTE.LTD., PTE.LTD., ( (( (FORMERLY KNOWN AS KVAERNER OIL FORMERLY KNOWN AS KVAERNER OIL FORMERLY KNOWN AS KVAERNER OIL FORMERLY KNOWN AS KVAERNER OIL FIELD PRODUCTS (SERVICES) PTE.LTD.), FIELD PRODUCTS (SERVICES) PTE.LTD.), FIELD PRODUCTS (SERVICES) PTE.LTD.), FIELD PRODUCTS (SERVICES) PTE.LTD.), C/O S.R.BATLIBOI & CO., C/O S.R.BATLIBOI & CO., C/O S.R.BATLIBOI & CO., C/O S.R.BATLIBOI & CO., GOLF VIEW, CORPORATE TOWER B, GOLF VIEW, CORPORATE TOWER B, GOLF VIEW, CORPORATE TOWER B, GOLF VIEW, CORPORATE TOWER B, SECTOR SECTOR SECTOR SECTOR- -- -42, SECTOR ROAD, 42, SECTOR ROAD, 42, SECTOR ROAD, 42, SECTOR ROAD, GURGAON GURGAON GURGAON GURGAON 122 002. 122 002. 122 002. 122 002. (APPELLANT) (RESPONDENT) ITA-5572 & 5573/DEL/2011 & C.O. 20 & 21/DEL/2012 2 CROSS OBJECTION NO.21/DEL/2012 CROSS OBJECTION NO.21/DEL/2012 CROSS OBJECTION NO.21/DEL/2012 CROSS OBJECTION NO.21/DEL/2012 (IN ITA NO.5573 (IN ITA NO.5573 (IN ITA NO.5573 (IN ITA NO.5573/DEL/2011) /DEL/2011) /DEL/2011) /DEL/2011) ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 2003 2003 2003 2003- -- -04 0404 04 ASSISTANT DIRECTOR OF ASSISTANT DIRECTOR OF ASSISTANT DIRECTOR OF ASSISTANT DIRECTOR OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, INTERNATIONAL TAXATION, INTERNATIONAL TAXATION, INTERNATIONAL TAXATION, INTERNATIONAL TAXATION, DEHRADUN. DEHRADUN. DEHRADUN. DEHRADUN. VS. VS. VS. VS. M/S AKER SOLUTIONS (SERVICES) M/S AKER SOLUTIONS (SERVICES) M/S AKER SOLUTIONS (SERVICES) M/S AKER SOLUTIONS (SERVICES) PTE.LTD., PTE.LTD., PTE.LTD., PTE.LTD., (FORMERLY KNOWN AS KVAERNER OIL (FORMERLY KNOWN AS KVAERNER OIL (FORMERLY KNOWN AS KVAERNER OIL (FORMERLY KNOWN AS KVAERNER OIL FIELD PRODUCTS (SERVICES) PTE.LTD.), FIELD PRODUCTS (SERVICES) PTE.LTD.), FIELD PRODUCTS (SERVICES) PTE.LTD.), FIELD PRODUCTS (SERVICES) PTE.LTD.), C/O S.R.BATLIBOI & CO., C/O S.R.BATLIBOI & CO., C/O S.R.BATLIBOI & CO., C/O S.R.BATLIBOI & CO., 16 1616 16 TH THTH TH FL FL FL FLOOR, THE RUBY, OOR, THE RUBY, OOR, THE RUBY, OOR, THE RUBY, 29, SENAPATI BAPAT MARG, 29, SENAPATI BAPAT MARG, 29, SENAPATI BAPAT MARG, 29, SENAPATI BAPAT MARG, DADAR WEST, DADAR WEST, DADAR WEST, DADAR WEST, MUMBAI MUMBAI MUMBAI MUMBAI 400 028. 400 028. 400 028. 400 028. (APPELLANT) (RESPONDENT) REVENUE BY : DR.SUNIL KUMAR, SR.DR. ASSESSEE BY : SHRI NAGESHWAR RAO, ADVOCATE. ORDER ORDER ORDER ORDER PER G. PER G. PER G. PER G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VP VPVP VP : : : : IN BOTH THE APPEALS BY THE REVENUE, COMMON GROUNDS ARE RAISED WHICH READ AS UNDER:- 1. WHETHER ON FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAD ERRED IN RELYING UPON THE ORDERS OF THE HONBLE UTTARAKHAND HIGH COURT QUASHING THE INITIATION OF PROCEEDINGS UNDER SECTION 147 WHICH HAS NOT BECOME FINAL, SINCE A SPECIAL PETITION HAS BEEN FILED BEFORE THE DIVISIONAL BENCH OF THE COURT. 2. WHETHER ON FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAD ERRED IN NOT GIVING THE FINDING ON THE M ERITS OF THE CASE THAT THE SERVICES RENDERED BY THE ASSESSEE WERE IN THE NATURE OF TECHNICAL SERVICES COVERED UNDER T HE PROVISIONS OF SEC. 9(1)(VII) AND TAXABLE UNDER THE PROVISIONS OF SECTION 115A READ WITH SECTION 44D OF THE ACT. ITA-5572 & 5573/DEL/2011 & C.O. 20 & 21/DEL/2012 3 2. AT THE TIME OF HEARING BEFORE US, IT IS STATED B Y THE LEARNED COUNSEL THAT IN BOTH THESE APPEALS, THE ASSESSMENT HAS BEEN MADE UNDER SECTION 143(3)/147 IN PURSUANCE TO THE NOTICE ISSUED UNDER SECTION 148. THAT AGAINST THE NOTICE ISSUED UNDER SECTION 148, THE ASSESSEE HAD FILED THE WRIT PETITION BEFORE THE HON BLE JURISDICTIONAL HIGH COURT WHICH, VIDE ORDER DATED 20 TH AUGUST, 2011 IN WRIT PETITION NO.2139 OF 2010, QUASHED THE NOTICE ISSUED UNDER SE CTION 148. WHEN THE NOTICE UNDER SECTION 148 ITSELF HAS BEEN QUASHE D, THE ASSESSMENT ORDER PASSED IN PURSUANCE TO SUCH NOTICE CANNOT SUR VIVE AND THE LEARNED CIT(A) HAS RIGHTLY CANCELLED THE ASSESSMENT ORDER IN VIEW OF THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT. 3. THE LEARNED DR STATED THAT THE REVENUE HAS EITHE R FILED THE APPEAL AGAINST THE ORDER OF THE SINGLE JUDGE OF THE HONBLE HIGH COURT OR IS IN THE PROCESS OF FILING THE APPEAL. THEREFO RE, TO KEEP THE ISSUE ALIVE, THE APPEAL IS FILED BEFORE THE ITAT. 4. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. IN BOTH THE APPEALS, THE ASSESSMENT HAS BEEN COMPLETED IN PURSUANCE TO THE N OTICE ISSUED UNDER SECTION 148. IN THE WRIT PETITION FILED BY T HE ASSESSEE, THE HONBLE JURISDICTIONAL HIGH COURT QUASHED THE NOTIC ES ISSUED UNDER SECTION 148 AND, THEREFORE, THE ASSESSMENT ORDER FR AMED IN PURSUANCE TO SUCH NOTICE CANNOT SURVIVE AND HAS RIGHTLY BEEN CANCELLED BY THE LEARNED CIT(A). THE SAME IS UPHELD. 5. THE REVENUES CONTENTION THAT THEY ARE IN THE PR OCESS OF FILING THE APPEAL AGAINST THE ORDER OF HONBLE HIGH COURT WILL NOT HELP THE DEPARTMENT AT THIS STAGE UNLESS AND UNTIL THE ORDER OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE WRIT PETITION IS N OT REVERSED. AS OF NOW, THE ORDER OF HONBLE JURISDICTIONAL HIGH COURT IN W RIT PETITION NO.2139 OF 2010 STANDS AND, THEREFORE, NO INTERFERENCE IN T HE ORDER OF LEARNED CIT(A) IS REQUIRED. THE SAME IS SUSTAINED. ITA-5572 & 5573/DEL/2011 & C.O. 20 & 21/DEL/2012 4 6. THE CROSS-OBJECTIONS OF THE ASSESSEES ARE ONLY I N SUPPORT OF THE ORDER OF LEARNED CIT(A). AS WE HAVE SUSTAINED THE ORDER OF LEARNED CIT(A), THE CROSS-OBJECTIONS HAVE BECOME INFRUCTUOU S AND ARE DISMISSED. 7. IN THE RESULT, THE REVENUES APPEALS AS WELL AS ASSESSEES CROSS- OBJECTIONS ARE DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON CONCLUSION OF HEARING ON 27 TH JUNE, 2012. SD/- SD/- ( (( (I.C.SUDHIR I.C.SUDHIR I.C.SUDHIR I.C.SUDHIR) )) ) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 27.06.2012 VK. COPY FORWARDED TO: - 1. ASSESSEES : (I) M/S KVAERNER ENERGY LTD. M/S KVAERNER ENERGY LTD. M/S KVAERNER ENERGY LTD. M/S KVAERNER ENERGY LTD. A/A OF GE ENERGY SERVICES UK, A/A OF GE ENERGY SERVICES UK, A/A OF GE ENERGY SERVICES UK, A/A OF GE ENERGY SERVICES UK, C/O S.R.BATLIBOI & CO., C/O S.R.BATLIBOI & CO., C/O S.R.BATLIBOI & CO., C/O S.R.BATLIBOI & CO., GOLF VIEW, CORPORATE TOWER B, GOLF VIEW, CORPORATE TOWER B, GOLF VIEW, CORPORATE TOWER B, GOLF VIEW, CORPORATE TOWER B, SECTOR SECTOR SECTOR SECTOR- -- -42, SECTOR ROAD, 42, SECTOR ROAD, 42, SECTOR ROAD, 42, SECTOR ROAD, GURGA GURGA GURGA GURGAON ON ON ON 122 002. 122 002. 122 002. 122 002. (II) M/S AKER SOLUTIONS (SERVICES) PTE.LTD., M/S AKER SOLUTIONS (SERVICES) PTE.LTD., M/S AKER SOLUTIONS (SERVICES) PTE.LTD., M/S AKER SOLUTIONS (SERVICES) PTE.LTD., (FORMERLY KNOWN AS KVAERNER OIL FIELD PRODUCTS (FORMERLY KNOWN AS KVAERNER OIL FIELD PRODUCTS (FORMERLY KNOWN AS KVAERNER OIL FIELD PRODUCTS (FORMERLY KNOWN AS KVAERNER OIL FIELD PRODUCTS (SERVICES) PTE.LTD.), (SERVICES) PTE.LTD.), (SERVICES) PTE.LTD.), (SERVICES) PTE.LTD.), C/O S.R.BATLIBOI & CO., C/O S.R.BATLIBOI & CO., C/O S.R.BATLIBOI & CO., C/O S.R.BATLIBOI & CO., GOLF VIEW, CORPORATE TOWER B, GOLF VIEW, CORPORATE TOWER B, GOLF VIEW, CORPORATE TOWER B, GOLF VIEW, CORPORATE TOWER B, SECTOR SECTOR SECTOR SECTOR- -- -42, SECTOR ROAD, 42, SECTOR ROAD, 42, SECTOR ROAD, 42, SECTOR ROAD, GURGAON GURGAON GURGAON GURGAON 122 002. 122 002. 122 002. 122 002. 2. REVENUE : ASSISTANT ASSISTANT ASSISTANT ASSISTANT DIRECTOR OF INCOME TAX, DIRECTOR OF INCOME TAX, DIRECTOR OF INCOME TAX, DIRECTOR OF INCOME TAX, INTERNATIONAL TAXATION, INTERNATIONAL TAXATION, INTERNATIONAL TAXATION, INTERNATIONAL TAXATION, DEHRADUN. DEHRADUN. DEHRADUN. DEHRADUN. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR