POSCO India Chennai Steel Processing Centre Private Limited, Kanchipuram V. ACIT Corporate Circle 5(2), CHENNAI

ITA 2858/CHNY/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5773 (ITAT-CHENNAI)
• Duration Of Justice: 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-12-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 24-11-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Keywords: Transfer pricing; Principle of natural justice

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI , !'# !. %& # , ' ( SHRI GEORGE MATHAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER % # / S.P. NO.311/MDS/2017 (IN I.T.A. NO.2858/MDS/2017) & #./ ITA NO.2858/MDS/2017 '* / ASSESSMENT YEAR : 2013-14 M/S POSCO INDIA CHENNAI STEEL PROCESSING CENTRE PVT. LTD., RNS 9, 12, 13, 14, SIPCOT INDUSTRIAL GROWTH CENTRE, ORAGADAM, SRIPERUMBUDUR (TALUK), KANCHIPURAM DISTRICT 603 204. PAN : AAFCP 0211 N V. THE ASSISTANT COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 5(2), CHENNAI - 600 034. ( PETITIONER & APPELLANT) (,-./ RESPONDENT) PETITIONER & APPELLANT BY : SH. VIKRAM VIJAY ARAGHAVAN, ADVOCATE ,-. / 0 / RESPONDENT BY : MS. S. VIJAYAPRABHA, JCIT 1 ' / 2' / DATE OF HEARING : 01.12.2017 3%* / 2' / DATE OF PRONOUNCEMENT : 01.12.2017 / O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER: THIS IS A STAY PETITION FILED BY THE ASSESSEE IN HIS APPEAL IN I.T.A. NO.2858/MDS/2017. 2 S.P. NO.311/MDS/17 I.T.A. NO.2858/MDS/17 2. SH. VIKRAM VIJAYARAGHAVAN, ADVOCATE REPRESENTED ON BEHALF OF THE ASSESSEE AND MS. S. VIJAYAPRABHA, JCIT REPRE SENTED ON BEHALF OF REVENUE. 3. AT THE TIME OF HEARING, IT WAS SUBMITTED BY THE LD. A.R. THAT THE ASSESSEE HAS FILED THE APPEAL AGAINST THE DIREC TIONS OF THE DRP ON THE GROUND THAT THE ASSESSEE HAD NOT BEEN GRANTE D ADEQUATE OPPORTUNITY TO SUBSTANTIATE ITS CASE BEFORE THE TPO . IT WAS SUBMISSION THAT ORIGINALLY THE TRANSFER PRICING ORD ER WAS PASSED BY THE TPO WHICH WAS THE SUBJECT MATTER BEFORE THE DRP . THE DRP HAD RESTORED THE ISSUES TO THE FILE OF THE TPO FOR ADJUDICATION. IT WAS A SUBMISSION THAT THOUGH THE ASSESSEE HAD PRODU CED EVIDENCES BEFORE THE TPO, ON ACCOUNT OF SHORTAGE OF TIME, THE TPO COULD NOT EXAMINE ALL THE EVIDENCES AND HAD REITERA TED HIS ORDER. IT WAS A SUBMISSION THAT THE SAME WAS THE SUBJECT MATT ER BEFORE THE DRP AND THE DRP HAD CONFIRMED THE SAME. IT WAS A S UBMISSION THAT THE ASSESSEE WAS PRAYING FOR RESTORATION OF IS SUES BEFORE THE TPO FOR RE-ADJUDICATION. IT WAS A SUBMISSION THAT A DEMAND OF 8.65 CRORES HAS BEEN RAISED ON THE ASSESSEE AND THE ASSESSEE IS FACING FINANCIAL DIFFICULTY FOR MAKING PAYMENT OF D ISPUTED TAXES. IT WAS A PRAYER THAT THE APPEAL OF THE ASSESSEE MAY BE DISPOSED OF AND THE ISSUES RESTORED TO THE FILE OF THE TPO FOR RE-ADJUDICATION. 3 S.P. NO.311/MDS/17 I.T.A. NO.2858/MDS/17 4. IN REPLY, THE LD. D.R. VEHEMENTLY SUPPORTED THE ORDERS OF THE A.O. AND TPO. IT WAS A SUBMISSION THAT THE STAY OF RECOVERY WAS NOT LIABLE TO BE GRANTED TO THE ASSESSEE. IT WAS A LSO A SUBMISSION THAT THE ASSESSEE HAD ALREADY BEEN GRANTED AN OPPOR TUNITY BEFORE THE TPO AND REPEATED OPPORTUNITIES OUGHT NOT TO BE GIVEN. 5. WE HAVE HEARD RIVAL SUBMISSIONS. A PERUSAL OF T HE ORDER OF THE DRP IN F.NO.265/DRP-2/BANG/2016-17/ DATED 11.09 .2017 SHOWS THAT IN PARAGRAPH NO.7 AT PAGES 5 AND 6 OF TH E DRP ORDER, THE DRP HAS EXTRACTED THE TPOS REMAND REPORT. IN THE SAID REMAND REPORT, THE TPO MENTIONS THAT THE INFORMATIO N FURNISHED BEFORE THE TPO IS INCOMPLETE AND CONSEQUENTLY NO CO NCLUSION COULD BE DRAWN. A PERUSAL OF PARA 9.5 OF THE TPOS ORDER DATED 31.10.2016 SHOWS THAT THE ASSESSEE HAS ASKED FOR TI ME WHICH HAS NOT BEEN GRANTED. IN THESE CIRCUMSTANCES, IN THE I NTEREST OF NATURAL JUSTICE, THE ISSUES IN THIS APPEAL ARE RESTORED TO THE FILE OF THE A.O. FOR RE-ADJUDICATION AFTER OBTAINING THE TRANSFER PR ICING ISSUE RE- ADJUDICATED BY THE TPO AFTER GRANTING THE ASSESSEE ADEQUATE OPPORTUNITY TO SUBSTANTIATE ITS CLAIM IN RESPECT OF THE TRANSFER PRICING ISSUES. IT IS RECOGNIZED BY US THAT ON EAR LIER OCCASION, THE DRP HAD RESTORED THE ISSUE TO THE FILE OF THE TPO. BUT, AS IT HAS BEEN CLAIMED THAT ADEQUATE OPPORTUNITY AND TIME WAS NOT GRANTED TO 4 S.P. NO.311/MDS/17 I.T.A. NO.2858/MDS/17 THE ASSESSEE, THE ASSESSEE WAS UNABLE TO COMPLY WIT H THE DIRECTIONS. IN THESE CIRCUMSTANCES, AS A LAST OPPO RTUNITY, THE ISSUES RAISED IN THIS APPEAL ARE RESTORED TO THE FILE OF T HE A.O. FOR RE- ADJUDICATION. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 7. AS WE HAVE ALREADY DISPOSED THE APPEAL, THE STAY PETITION BECOMES INFRUCTUOUS AND STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 ST DECEMBER, 2017 AT CHENNAI. SD/- SD/- (!. %& # ) ( ) (A. MOHAN ALANKAMONY) (GEORGE MATHA N) ' / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 5# /DATED, THE 1 ST DECEMBER, 2017. KRI. 6 / ,278 98*2 /COPY TO: 1. , / PETITIONER 2. ,-. /RESPONDENT 3. 1 :2 () /CIT(A) 4. 1 :2 /CIT 5. 8';< ,2 /DR 6. < = /GF.