HEURTEY PETROCHEM SA ( PROJECT OFFICE), MUMBAI V. DCIT 2(2)(2), MUMBAI

ITA 1454/MUM/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3775 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2016
• Appeal Filed By: Assessee
• Bench Allotted: Not Allotted
• Next Hearing Date: 03-08-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 16-03-2016
• Court: TRIBUNAL
• Department Lawyers: JABIR CH EHAN
• Keywords: Double taxation relief; Opportunity of being heard; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL L BENCH, MUMBAI BEFORE SHRI MAH AV IR SINGH, JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER I.T.A. NO.1454/M/2016 (ASSESSMENT YEAR: 2011 - 2012 ) I.T.A. NO.1809/M/2015 (ASSESSMENT YEAR: 2010 - 2011 ) HEURTEY PETROCHEM SA (PROJECT OFFICE), A 301, BOOMERANG, MAIN CHANDIVALI FARM ROAD, CHANDIVALI, ANDHERI (E), MUMBAI 400 072. / VS. DCIT - INTL. TAX 2(2)(2), R.NO.136, FIRST FLOOR, SCINDIA HOUSE, NM MARG, BALLARD PIER, MUMBAI - 038. ./ PAN : AAACL1070G ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI ARIJIT CHAKRAVARTY & HARSH KAPADIA / RESPONDENT BY : SHRI JABIR CH EHAN, CIT - DR / DATE OF HEARING : 03.08.2016 / DATE OF PRONOUNCEMENT : 03.08.2016 / O R D E R PER D. KARUNAKARA RAO, AM: THERE ARE TWO APPEALS UNDER CONSIDERATION. BOTH THESE APPEALS ARE FILED BY THE ASSESSEE INVOLVING THE ASSESSMENT YEARS 2010 - 11 AND 2011 - 12. SINCE, THE ISSUES RAISED IN THESE APPEALS ARE IDENTICAL, THEREFORE, FOR THE SAKE OF CONVENIENCE, THEY ARE CLUBBED, HEARD COMBIN EDLY AND DISPOSED OF IN THIS CONSOLIDATED ORDER. APPEAL WISE ADJUDICATION IS GIVEN IN THE FOLLOWING PARAS OF THIS ORDER. 2. AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO THE ASSESSEES A PPEAL ITA NO.1454/M/2016 (AY 2011 - 2012) AND MENTIONED THAT THIS IS A STAY GRANTED MATTER. HE FURTHER SUBMITTED THAT DURING THE PROCEEDINGS BEFORE THE DISPUTES RESOLUTION PANEL (DRP) , THE DRP DISMISSED THE APPEAL OF THE ASSESSEE RELYING ON THEIR ORDER FOR THE AY 2010 - 11. THE CON TENTS OF PARA 2.13.3 OF THE DRPS DIRECTIONS U/S 144C(5) OF THE ACT, DATED 15.12.2015 ARE RELEVANT IN THIS REGARD. MENTIONING THE ABOVE, LD COUNSEL FOR THE ASSESSEE DEMONSTRATED THAT THE APPEAL FOR 2 THE STAY GRANTED MATTER FOR THE AY 2011 - 12 SHOULD FOLLOW THE SAME SUIT AS APPLICABLE TO THE APPEAL FOR THE AY 2010 - 11. 3. BEFORE US, LD COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO THE GROUNDS RAISED BY THE ASSESSEE IN ITS APPEAL FOR THE AY 2011 - 12 AND SUBMITTED THAT THE CORE ISSUE RELATES TO THE TREATMEN T TO THE CONT R ACT OF THE ASSESSEE WITH INDIAN OIL CORPORATION LTD (IOCL) AND THE TAXABILITY OF THE RECEIPTS RELATABLE TO THE OFF - SHORE SERVICES ON PAR WITH THE RECEIPTS CONNECTED TO THE INDIAN TERRITORY . REVENUE TAXED ALL SUCH RECEIPTS, WHEREAS THE ASSESS EE SEEKS INCLUSION OF SUCH OFF - SHORE RECEIPTS FROM THE TAXABILITY UNDER THE STATUTE / DTAAS. BRINGING OUR ATTENTION TO THE PAPER BOOK FILED ON 11.7.2016, LD COUNSEL FOR THE ASSESSEE PRAYED FOR ADMITTING THE ADDITIONAL EVIDENCES PLACED IN THE PAPER BOOK AT SL. NO. 17, 19, 20, 21, 24 TO 30 RELATING TO THE C ONTRACT RELATED DOCUMENTS / EVIDENCES / BILLS , LD COUNSEL FOR THE ASSESSEE DEMONSTRATED THEIR RELEVANCE TO THE O FF - SHORE SERVICES AND SOUGHT FOR THE EXCLUSION OF SUCH RECEIPTS FROM CHARGEABILITY OF TAX UNDER THE INDIAN LAWS / DTAAS. FURTHER, HE BROUGHT OUR ATTENTION TO THE REASONS JUSTIFYING NON - SUBMISSION OF THE SAME BEFORE THE REVENUE AUTHORITIES AT THE RELEVANT POINT OF TIME. WITHOUT GOING IN TO THE MERITS OF THE ISSUE, LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THESE ADDITIONAL EVIDENCE WILL GO TO THE ROOT OF THE MATTER AND THEREFORE, IT IS THE IN THE INTEREST OF JUSTICE, SUCH EVIDENCES SHOULD BE ADMITTED AND PRAYED FOR REMANDING THE ISSUES TO THE FILE OF THE AO FOR FRESH ADJUDICATION KEEPING ALL THE ISSUES OPEN TO THE ASSESSING AUTHORITIES. 4. ON THE OTHER HAND, LD DR FOR THE REVENUE RELIED ON THE ORDERS OF THE AO AND THE DRP. 5. ON HEARING BOTH THE PARTIES, WE FIND THAT THE AOS DECISION IN T REATING BOTH THE INLAND AND THE OFF - SHORE SERVICES OF THE ASSESSEE ON PAR WITH EACH OTHER HAS GEN I SES IN COMPOSITE CONTRACT. THE EVIDENCE CITED ABOVE ARE FOUND TO BE RELATABL E TO THE CONDITIONS OF CONTRACT; SAMPLE INVOICES; DETAILE D LETTER OF ACCEPTANCES (DLOAS); DOCUME NTS RELATING TO IMPORT OF GOODS; INSURANCE P OLICY OF SUCH GOODS; RELEVANT BILLING SCHEDULES; OTHER EVIDENCE RELATING TO RENDERING OF SERVICES OUTSIDE INDIA ETC. AFTER GOING THROUGH THE SAME, WE FIND, A DMITTING SUCH VALUABLE EVIDENCE IS IN T HE INTEREST OF RENDERING OF JUSTICE. THEREFORE, IN OUR VIEW, THE ASSESSEE S PLEA 3 FOR ADMITTING THE EVIDENCES SHOULD BE ALLOWED. WE ORDER ACCORDINGL Y. CONSEQUENT TO THE ADMISSION OF THE ADDITIONAL EVIDENCE , AS PRAYED FOR THE ASSESSEE, THE ISSUES AS WELL AS THE SAID ADDITIONAL EVIDENCES ARE REQUIRED TO BE REMANDED TO THE FILE OF THE AO. AO SHALL GRANT A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE TO THE EXPLAIN AND TO MAKE OUT HIS CASE BEFORE THE ASSESSING AUTHORITY. ACCORDINGLY, GROUNDS RAISED BY THE ASSESSEE IN BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD AUGUST , 2016. S D / - S D / - ( MAHAVIR SINGH ) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 0 3.08 .2016 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI