The DCIT, (OSD) Range-1, Ahmedabad V. Bisazza India Limited, Mehsana

ITA 3189/AHD/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 76667 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 23-04-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 01-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P BATHEJA
• Assessee Lawyers: URVASHI SHODHAN A R
• Keywords: Transfer pricing

Judgement Text

, , , , , , , , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD , . .. . . .. . , , , , '# ' $ '# ' $ '# ' $ '# ' $ BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI T.R.MEENA, ACCOUNTANT MEMBER 1. ./ I.T.A. NO.3189/AHD/2010 A.Y. 2003-04 2. ./ I.T.A. NO.3186/AHD/2010 A.Y. 2004-05 THE DCIT (OSD) RAGE-1 AHMEDABAD & & & & / VS. BISSAZA INDIA LTD. 372/2, GAIL OFFICE, GIDC KADI 382 715 ' '# ./() ./ PAN/GIR NO. : AAACB 6284 G ( '* / // / APPELLANT ) .. ( +,'* / RESPONDENT ) '* - ' / APPELLANT BY : SHRI O.P. BATHEJA, SR.DR +,'* . - ' / RESPONDENT BY : MS.URVASHI SHODHAN, A.R. &/ . # / / / / DATE OF HEARING : 23/4/2014 012 . # / DATE OF PRONOUNCEMENT : 25/04/2014 '3 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THESE TWO APPEALS BY THE REVENUE PERTAINING TO SA ME ASSESSEE ARE DIRECTED AGAINST THE SEPARATE ORDERS OF THE LD.COMM ISSIONER OF INCOME TAX(APPEALS)-VI, AHMEDABAD (CIT(A) FOR SHORT) DATED 06/09/2010 & 20/09/2010 FOR ASSESSMENT YEARS (AYS) 2003-04 & 200 4-05 RESPECTIVELY. 2. FIRST, WE TAKE UP THE REVENUES APPEAL IN ITA NO .3189/AHD/2010 FOR AY 2003-04. THE REVENUE HAS RAISED THE FOLLOWING G ROUND(S) OF APPEAL:- ITA NOS.3189 & 3186/AHD/2010 DCIT VS. BISSAZA INDIA LTD. AYS 2003-04 & 2004-05 RESPECTIVELY - 2 - 1. THE LD.CIT(A) ERRED IN LAW AND ON FACTS IN DELE TING THE PENALTY OF RS.43,46,933/- LEVIED U/S.271(1)(C) ON ACCOUNT OF A DJUSTMENT WITH REGARD TO TRANSFER PRICING. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFF ICER SINCE THE ASSESSEE HAS FAILED TO DISCLOSE HIS TRUE INCOME. THE APPELLANT PRAYS THAT THE ORDER OF CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE AO BE RESTORED. THE APPE LLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 3. AT THE OUTSET, THE LD.COUNSEL FOR THE ASSESSEE S UBMITTED THAT THE PENALTY HAS BEEN LEVIED ON THE BASIS OF THE ADDITIO NS MADE ON ACCOUNT OF THE REJECTION OF CLAIM OF DEDUCTION U/S.80HHC OF TH E IT ACT, 1961 AND ADJUSTMENT WITH REGARD TO THE TRANSFER PRICING. BO TH THESE ISSUES HAVE BEEN SET ASIDE TO THE FILE OF THE ASSESSING OFFICER BY THE ITAT A BENCH AHMEDABAD VIDE ORDER DATED 08/04/2011 IN ITA NOS.4 04 AND 3055/AHD/2007 FOR AYS 2003-04 & 2004-05. A COPY O F THE ORDER OF THE TRIBUNAL IS PLACED ON RECORD BY THE LD.COUNSEL FOR THE ASSESSEE. 3.1. ON THE CONTRARY, LD.SR.DR SUPPORTED THE ORDER OF THE AO. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT IN QUANTUM PROCEEDINGS, THE HONBLE IT AT A BENCH AHMEDABAD IN ITA NOS.404 & 3055/AHD/2007 HAD RESTOR ED THE ISSUE TO THE FILE OF AO FOR RECONSIDERATION. IN VIEW OF THI S MATTER, THE AO IS ITA NOS.3189 & 3186/AHD/2010 DCIT VS. BISSAZA INDIA LTD. AYS 2003-04 & 2004-05 RESPECTIVELY - 3 - DIRECTED TO DELETE THE PENALTY AMOUNTING TO RS.15,5 4,614/-. HOWEVER, THE AO WILL BE AT LIBERTY TO INITIATE PENALTY PROCEEDIN GS AFTER PASSING A FRESH ASSESSMENT IN ACCORDANCE WITH LAW. THUS, GROUNDS O F REVENUES APPEAL ARE REJECTED. 5. IN THE RESULT, REVENUES APPEAL FOR AY 2003-04 I S DISMISSED. 6. NOW, WE TAKE UP THE REVENUES APPEAL IN ITA NO.3 186/AHD/2010 FOR AY 2004-05. THE REVENUE HAS RAISED THE FOLLOWI NG GROUNDS OF APPEAL:- 1. THE LD.CIT(A) ERRED IN LAW AND ON FACTS IN DELE TING THE PENALTY OF RS.15,54,614/- LEVIED U/S.271(1)(C) ON ACCOUNT O F ADJUSTMENT WITH REGARD TO ROYALTY PAYMENT OF A.Y. 2003-04 CLAI MED IN AY 2004-05. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESS ING OFFICER SINCE THE ASSESSEE HAS FAILED TO DISCLOSE HIS TRUE INCOME. THE APPELLANT PRAYS THAT THE ORDER OF CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE AO BE RESTORED. THE A PPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GRO UND WHICH MAY BE NECESSARY. 6.1. AFTER HEARING BOTH THE SIDES, WE FIND THAT THE FACTS ARE IDENTICAL AS WERE IN REVENUES APPEAL IN ASSESSEES OWN CASE BEA RING ITA NO.3189/AHD/2010 FOR AY 2003-04(SUPRA), WHEREIN WE HAVE DISMISSED THE APPEAL OF THE REVENUE. SINCE THERE IS NO CHANG E IN THE FACTS AND ITA NOS.3189 & 3186/AHD/2010 DCIT VS. BISSAZA INDIA LTD. AYS 2003-04 & 2004-05 RESPECTIVELY - 4 - CIRCUMSTANCES OF THE CASE, FOR THE SAME REASONING, WE DISMISS THE REVENUES APPEAL FOR AY 2004-05. 7. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE A RE DISMISSED. ORDER PRONOUNCED IN COURT ON THE DATE MENTIONED HER EINABOVE AT CAPTION PAGE SD/- SD/- ( .. ) ( ) '# ( T.R. MEENA ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 25/ 04 /2014 ..&, .&../ T.C. NAIR, SR. PS '3 . +6 7'62 '3 . +6 7'62 '3 . +6 7'62 '3 . +6 7'62/ COPY OF THE ORDER FORWARDED TO : 1. '* / THE APPELLANT 2. +,'* / THE RESPONDENT. 3. 8 / CONCERNED CIT 4. 8() / THE CIT(A)-VI, AHMEDABAD 5. 69 +& , , / DR, ITAT, AHMEDABAD 6. 9:;