M/s Fluor Danier India Pvt. Ltd., New Delhi V. DCIT, New Delhi

ITA 2696/DEL/2013

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0995 (ITAT-DELHI)
• Duration Of Justice: 6 year(s) 7 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-12-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: I2
• Next Hearing Date: 10-07-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 03-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: YOGESH K VERMA
• Keywords: Transfer pricing; International transaction; Competent authority
• Section: 143(3); 201; 144C; 90

Judgement Text

PAGE | 1 INCOME TAX APPELLATE TRIBUNAL DELHI BENCH I - 2 : NEW DELHI BEFORE SHRI KULDIP SINGH , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 2 696/DEL/2013 (ASSESSMENT YEAR: 2008 - 09 ) FLUOR DANIEL INDIA PRIVATE LTD, B - 9, LOWER GROUND FLOOR, GREEN PARK MAIN, NEW DELHI PAN: AAACF0927G VS. DCIT, CIRCLE - 11(1), NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VISHAL KALRA, ADV SHRI S. S. TOMAR, ADV REVENUE BY: SHRI YOGESH K. VERMA, CIT DR DATE OF HEARING 17/12 / 201 9 DATE OF PRONOUNCEMENT 1 7 / 12 / 2019 O R D E R PER PRASHANT MAHARISHI, A. M. 1. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD AO ( THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE - 11(1), NEW DELHI ) DATED 17.10.2012 PASSED U/S 143(3) READ WITH SECTION 144C OF THE INCOME TAX ACT [ THE ACT] INCORPORATING THEREIN THE DIRECTIONS OF THE LD D ISPUTE RESOLUTION PANEL [ THE DRP] - 1 , NEW DELHI PASSED U/S 144C(5) OF THE ACT ON 24.09.2012 IN THE DRAFT ORDER PROPOSED BY THE LD AO WHEREIN, THE ADJUSTMENT OF RS. 353352855/ - WAS MADE TO THE RETUNED INCOME OF THE ASSESSEE OF RS. 14342940/ - ON ACCOUNT OF ARMS LENGTH PRICE OF THE INTERNATIONAL TRANSAC TIONS. 2. AT THE TIME OF HEARING THE LD AR SUBMITTED THAT ASSESSEE HAS APPLIED FOR MUTUAL AGREEMENT PROCEDURE (MAP) IN THE IMPUGNED ASSESSMENT YEAR WHICH IS PENDING THEREFORE, THE SAME MAY BE KEPT IN ABEYANCE TILL THE MAP PROCEEDINGS ARE NOT CONCLUDED. 3. THE LD DR DID NOT OBJECT TO THE ABOVE SUBMISSION. 4. WE HAVE CAREFULLY CONSIDERED THE ABOVE CONTENTION AND FINDS THAT FOR THE IMPUGNED ASSESSMENT YEAR THE REQUEST FOR COMPETENT AUTHORITY ASSISTANCE ON BEHALF OF FLUOR CORPORATION , USA PURSUANT TO REVENUE PROCEDUR E 2006 - PAGE | 2 54 AND THE MUTUAL AGREEMENT PROCEDURE UNDER ARTICLE 27 OF THE CONVENTION FOR THE AVOIDANCE OF DOUBLE TAXATION BETWEEN THE UNITED STATES AND INDIA RELATING TO INCOME TAX ASSESSMENT MADE BY THE INDIAN REVENUE AGAINST THE FLOUR CORPORATION IS INDIRECT LY WHOLLY OWNED INDIAN SUBSIDIARY FLOUR DENIAL INDIA PVT. LTD (ASSESSEE/ APPELLANT) FOR AY 2008 - 09 AND AFFECTING US TAX YEAR ENDED ON 31.12.2008 AND 31.12.2007. 5. THE ABOVE PROCEDURE IS PENDING WITH RELATION TO TRANSFER PRICING ADJUSTMENT ON ACCOUNT OF INTERNATIONAL TRANSACTION OF 412867369/ - . THE ABOVE FACTS ARE CULLED OUT FROM THE LETTER DATED 15.03.2013 BY THE DEPARTMENT OF TREASURY INTERNAL REVENUE SERVICE , WASH INGTON ADDRESSED TO THE FLUOR CORPORATION , USA . NO INFORMATION HAS BEEN PROVIDED BY ASSESSEE ABOUT THE RESOLUTION WITH RESPECT TO ASSESSMENT YEAR INVOLVED U/S 90 OF THE ACT. ASSESSEE HAS FURNISHED THE DETAILS FOR AY 2004 - 05. EVEN OTHERWISE , AFTER THE MAP P ROCEEDINGS ARE CONCLUDED , IRRESPECTIVE OF THE RESULT , THE LD AO WILL GIVE EFFECT TO THE RESOLUTION IN TERMS OF SUB - RULES 4 AND 5 OF RULE 44H OF THE INCOME TAX RULES, 1962. THEREAFTER, IF THE ASSESSEE IS STILL AGGRIEVED , IT CAN FILE APPEAL AGAINST SUCH ORDE R OR CAN ALSO PURSUE THE IMPUGNED APPEAL. THEREFORE, IT IS NOT MANDATORY TO KEEP THE ABOVE APPEAL PENDING TILL THE ORDER U/S 44H BY THE LD AO. IN PAST YEARS TOO, ASSESSEE HAS ACCEPTED MAP RESOLUTION. FURTHER, THERE IS NEITHER ANY BENEFIT NOR ANY LOSS/ HARM IS CAUSED, BUT IN FACT IT WILL SAVE TIME ON PART OF ASSESSEE AS WELL AS REVENUE, IF THE ABOVE APPEAL IS CONSIGNED TO RECORDS, TILL MAP PROCEEDINGS ARE COMPLETED, WITH A LIBERTY TO REINSTATE THE ABOVE APPEAL, THEREAFTER, IF ASSESSEE IS STILL AGGRIEVED. 5. IN VIEW OF ABOVE FACTS , WE DISPOSE OFF THE ABOVE APPEAL AND CONSIGN IT TO RECORDS WITH A DIRECTION AND LIBERTY TO THE ASSESSEE , THAT IN CASE , IF AFTER THE MAP PROCEEDINGS , IT IS AGGRIEVED , THEN WITHIN A PERIOD OF 60 , DAYS IT CAN MAKE AN APPLICATION FOR RE CALL OF THE ABOVE APPEAL AND ON SUCH APPLICATION THE APPEAL MAY BE RECALLED FOR ADJUDICATION ON MERITS. 6. IN THE RESULT ABOVE APPEAL IS DISPOSED OFF WITH ABOVE DIRECTION ACCORDINGLY. ORDER PRONOUNCED IN THE OPEN COURT ON 1 7 / 12 / 2019 . - SD/ - - SD/ - ( KULDIP SINGH ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER PAGE | 3 DATED: 1 7 / 12 / 2019 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI