China State Construction Engineering (Hong Kong) Limited, Hyderabad V. Dy. Director of Income Tax (International Taxation)-I , Hyderabad

ITA 1327/Hyd/2017

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 5612 (ITAT-HYDERABAD)
• Duration Of Justice: 3 year(s) 8 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB-B
• Next Hearing Date: 26-04-2021
• Assessment Year: 2008-2009
• Appeal Filed On: 28-07-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANJALA SAHU
• Assessee Lawyers: A V RAGHURAM
• Keywords: Transfer pricing
• Section: 143(3); 144C; 246A; 92CA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD (THROUGH VIRTUAL HEARING) BEFORE P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ITA NO. 1326 & 1327 /HYD/2017 A.Y. 2007 - 08 & 2008 - 09 CHINA STATE CONSTRUCTION ENGINEERING (HONG KONG) LIMITED, HYDERABAD. PAN: AACCC 6663 N VS. DDIT (INTERNATIONAL TAXATION) - 1, HYDERABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI A.V. RAGHURAM REVENUE BY: SMT. ANJALA SAHU, DR DATE OF HEARING: 26/04/2021 DATE OF PRONOUNCEMENT: 2 7 /04/2021 ORDER PER A. MOHAN ALANKAMONY , A.M: TH ESE APPEAL S ARE FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) - 10, HYDERABAD IN APPEAL NO S . 0044 & 0043 /CIT(A) - 10/2014 - 15, DATED 31/3/2017 PASSED U/S. 143(3) R.W.S 144C AND U/S. 250(6) OF THE ACT FOR THE A.Y. 2007 - 08. 2 2. THE ASSESSEE HAS RAISED FOUR IDENTICAL GROUNDS IN ITS APPEAL S FOR THE AYS 2007 - 08 AND 2008 - 09 AND THEY ARE EXTRACTED HEREIN BELOW FOR REFERENCE: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ORDER OF THE LD CIT (A) DISMISSING THE APPEAL IN LIMINI, IS ERRONEOUS, ILLEGAL AND UNSUSTAINABLE ON FACTS AND IN LAW. 2. THE CIT (A) FAILED TO APPRECIATE THAT THE AO ERRED IN MENTIONING THE ORDER AS DRAFT ASSESSMENT ORDER AND PASSED UNDER SECTION 143(3) R.W.S 147 R.W.S 144C OF THE ACT, IN SPITE OF THE FACT THAT PROVISIONS OF SECTI ON 92CA OF THE ACT WERE NOT INVOKED WHILE PASSING THE IMPUGNED ASSESSMENT ORDER. THE MENTION OF THE ASST. ORDER BEING PASSED U/S 144C WAS NOT NECESSARY AND WAS DONE ONLY WITH A MALA FIDE INTENTION TO ENLARGE TIME FOR COMPLETION OF ASSESSMENT. 3. THE CIT ( A) FAILED TO APPRECIATE AND IN NOT UPHOLDING THE CONTENTION OF THE APPELLANT THAT THE SO CALLED DRAFT ASSESSMENT ORDER IS ACCOMPANIED WITH DEMAND NOTICE FOR PAYMENT OF THE DEMAND QUANTIFIED. 4. THE CIT (A) FAILED TO APPRECIATE THAT THE APPEAL WAS FILED A GAINST THE DEMAND QUANTIFIED AS PAYABLE, AND THE SAME WAS APPEALABLE. THE CIT (A) OUGHT TO HAVE APPRECIATED THAT QUOTING OF WRONG SECTION OR MENTIONING WRONG PREFACE AS DRAFT ASSESSMENT ORDER DOES NOT DISENTITLE THE APPELLANT TO CHALLENGE THE SAME AS TH E SAME IS ACCOMPANIED WITH DEMAND NOTICE AND AS PROVISIONS OF SECTION 92CA WERE NOT INVOKED IN THE ASSESSMENT PROCEEDINGS. 3. AT THE OUTSET, THE LD. AR SUBMITTED BEFORE US THAT THE LD. CIT (A) HAD DISMISSED BOTH THE APPEAL S OF THE ASSESSEE AS NOT MAINTAINABLE FOR THE RELEVANT ASSESSMENT YEAR 2007 - 08 AND 2008 - 09 BECAUSE THE APPEAL S W ERE FILED AGAINST THE DRAFT ASSESSMENT ORDER S PA SSED BY THE LD. DIT (INTERNATIONAL TAXATION) - I (TPO) U/S. 143(3) R.W.S 147 R.W.S 144C 3 OF THE ACT , BOTH DATED 28/03/2014 AND NOT AGAINST THE FINAL ASSESSMENT ORDER PASSED BY THE LD. ASSESSING OFFICER PURSUANT TO THE DRAFT ASSESSMENT ORDER PASSED BY THE LD. DDIT ( INT. TAXATION) - 1, HYDERABAD (TRANSFER PRICING OFFICER) . THE LD. DR CONCEDED TO THE SUBMISSION OF THE LD. AR AND FURTHER ADDED THAT THERE IS NO ERROR IN THE ORDER S OF THE LD. CIT (A) FOR BOTH THE AYS ON THE ISSUE . THE LD. DR FURTHER ARGUED STATING THAT THE ASSESSEE IS ENTITLED TO APPEAL AGAINST THE FINAL ASSESSMENT ORDER PASSED PURSUANT TO THE DRAFT ASSESSMENT ORDER PASSED BY THE TPO AND NOT AGAINST THE DRAFT ASSESSMENT ORDER PASSED BY THE TPO AS PER THE PROVISIONS OF THE ACT . IT WAS THEREFORE PLEADED THAT BOTH THE APPEALS OF THE ASSESSEE MAY BE DISMISSED. THE LD. AR COULD NOT ADVANCE ANY ARGUMENTS TO CONTROVERT TO THE SUBMISSIONS OF THE LD. DR. 4. HAVING HEARD THE RIVAL SUBMISSION S , W E DO NOT FIND ANY ERROR IN THE ORDER S OF T HE LD. CIT (A) BECAUSE AS SUBMITTED BY THE LD. DR THE PROVISIONS OF SECTION 246A R.W.S 144C MAKES IT CLEAR THAT THE FINAL ASSESSMENT ORDER PASSED BY THE LD. AO PURSUANT TO THE DRAFT ASSESSMENT ORDER PASSED BY THE TPO U/S. 144C OF THE ACT IS ONLY APPEALABLE BEFORE THE LD. CIT (A) WHICH THE LD. AR COULD NOT CONTROVERT . HENCE , WE DO NOT FIND ANY INFIRMITY IN THE ORDER S OF THE LD.CIT (A) ON THE ISSUE AND THEREFORE, WE HEREBY SUSTAIN THE ORDER OF THE LD. CIT (A) FOR BOTH T HE AYS 2007 - 08 AND 2008 - 09. 5. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE DISMISSED. 4 PRONOUNCED IN THE OPEN COURT ON 27 TH APRIL, 2021. S D/ - SD/ - (P. MADHAVI DEVI) ( A. MOHAN ALANKAMONY ) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDERABAD, DATED: 2 7 TH APRIL , 2021. OKK COPY TO: - 1) M/S. CHINA STATE CONSTRUCTION ENGINEERING (HONG KONG) LIMITED, C/O. K. VASANTKUMAR, A.V. RAGHU RAM, P. VINOD & M. NEELIMA DEVI, ADVOCATES, 610, BABUKHAN ESTATE, BASHEERBAGH, HYDERABAD - 1. 2) DDIT (INTL. TAXATION) - 1, AAYAKAR BHAVAN, BASHEERBAGH, HYDERABAD 500 001. 3) THE CIT(A) - 10, HYDERABAD . 4) THE CIT (IT & TP), HYDERABAD. 5) THE DR, ITAT, HYDERABAD 6) GUARD FILE