M/s. Posco Engineering and Construction Co. Ltd., Gurgaon V. DDIT, New Delhi

ITA 1140/DEL/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 77570 (ITAT-DELHI)
• Duration Of Justice: 1 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-04-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Next Hearing Date: 02-04-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 28-02-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SANJEEV SHARMA
• Keywords: Transfer pricing; Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: F NEW DELHI BEFORE SHRI R. S. SYAL, ACCOUNTANT MEMBER AND SHRI A. T. VARKEY, JUDICIAL MEMBER I.T.A .NO.-1140/DEL/2014 (ASSESSMENT YEAR-2009-10) POSCO ENGINEERING & CONSTRUCTION VS. DDIT COMPANY, 6 TH FLOOR PARK CENTRA CIRCLE-3(2), BUILDING TOWER- B SECTOR-30 INTERNATIONAL TAXATI ON GURGAON. HARYANA 122001 CIVIC CENTRE, NEW DELHI-110002 PAN: AAECP2664A (APPELLANT) (RESPONDENT) ASSESSEE BY:-SH. PAWAN KUMAR, SH. VISHAL ANAND, SH. NITIN VAID, ARZOO BATTA, ANUSHREE KANODIA, CA. REVENUE BY:-SH. SANJEEV SHARMA & SH. VIVEK KUMAR, CIT. DR. ORDER PER R. S. SYAL, AM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE FINAL ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) R.W.S. 1 44C(13) [SIC 144C (5)] ON 21.01.2014 IN RELATION TO THE ASSESSM ENT YEAR 2009- 10. I.T.A .NO.-1140/DEL/2014 2 2. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. AT THE VERY OUTSET IT WAS SUBMI TTED BY THE LD. AR THAT ISSUES INVOLVED IN THE INSTANT APPEAL ARE S IMILAR TO THOSE IN THE APPEAL FILED BY THE ASSESSEE BEFORE THE TRIBUNA L FOR THE IMMEDIATELY PRECEDING ASSESSMENT YEAR I.E. 2008-09. A COPY OF THE TRIBUNAL ORDER DATED 26.2.2014 IN ITA NO. 5787/ DEL/2013 PASSED BY THE TRIBUNAL FOR SUCH EARLIER YEAR WAS PL ACED ON RECORD. THE LD. DR ALSO FAIRLY ADMITTED THAT THE FACTS AND CIRCUMSTANCES AS WELL AS THE GROUNDS OF THE INSTANT APPEAL ARE SIMIL AR TO THOSE FOR THE PRECEDING YEAR. 3. THE TRIBUNAL HAS PASSED ORDER FOR A.Y. 2008-09. IN THIS ORDER, VARIOUS ASPECTS ABOUT THE TAXABILITY AND THE EXTENT QUA THE INCOME FROM OFF-SHORE SUPPLY OF EQUIPMENTS; INCOME FROM ON -SHORE EQUIPMENTS; INCOME FROM ON-SHORE SERVICES; AND INCO ME FROM DESIGN AND ENGINEERING SERVICES HAVE BEEN DISCUSSED AND ADJUDICATED UPON. THE ISSUE OF TRANSFER PRICING ADJ USTMENT HAS ALSO BEEN DEALT WITH. SUCH ISSUES HAVE BEEN SENT B ACK BY THE TRIBUNAL TO THE AO/TPO FOR A FRESH DECISION IN ACCO RDANCE WITH THE I.T.A .NO.-1140/DEL/2014 3 SPECIFIC DIRECTIONS GIVEN THEREIN. SINCE BOTH THE S IDES ARE IN AGREEMENT THAT THE FACTS AND CIRCUMSTANCES AS WELL AS THE GROUNDS OF THE EXTANT APPEAL ARE MUTATIS MUTANDIS SIMILAR TO THOSE FOR A.Y. 2008-09, FOLLOWING THE PRECEDENT WE SET ASIDE THE IMPUGNED ORDER AND REMIT THE MATTER TO THE FILE OF AO/TPO FOR DECI DING THESE ISSUES AFRESH IN CONFORMITY WITH THE DIRECTIONS BY THE TRIBUNAL IN ITS ORDER FOR A.Y. 2008-09. NEEDLESS TO SAY THE AS SESSEE WOULD BE ALLOWED A REASONABLE OPPORTUNITY OF BEING HEARD. 4. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 02/04/2014. SD/- SD/- ( A. T. VARKEY ) ( R. S. SYAL) JUDICIAL MEMBER ACCOUNTANT M EMBER DATED: 02/04/2014 *AK VERMA* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT I.T.A .NO.-1140/DEL/2014 4 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR DATE INITIAL 1. DRAFT DICTATED ON 02/04/2014 PS 2. DRAFT PLACED BEFORE AUTHOR 02/04/2014 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 03/04/2014 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 03/04/2014 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER. *