Ericsson Telephone Corporation India AB (India Branch), New Delhi V. DDIT, New Delhi

ITA 3462/DEL/2011

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6747 (ITAT-DELHI)
• Duration Of Justice: 6 year(s) 11 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 06-06-2017
• Assessment Year: 2001-2002
• Appeal Filed On: 07-07-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SURENDER PAL
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : B : NEW DELHI BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI K. NARASIMHA CHARY, JUDICIAL MEMBER ITA NOS.3461 & 3462/DEL/2011 ASSESSMENT YEARS : 2000-01 & 2001-02 ERICSSON TELEPHONE CORPORATION INDIA AB (INDIA BRANCH), 4 TH FLOOR, DAKHA HOUSE, 18/17, WEA, PUSA LANE, KAROL BAGH, NEW DELHI. PAN: AAACE2393M VS. DDIT, CIRCLE-2(1), INTERNATIONAL TAXATION, NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SAJIT PARAKH, CA, SHRI SANTDAS WADHWANI, CA, SHRI TARUN GUPTA, CA, SHRI GIRISH DAVE, ADVOCATE DEPARTMENT BY : SHRI SURENDER PAL, SR. DR DATE OF HEARING : 02.07.2018 DATE OF PRONOUNCEMENT : 04.07.2018 ORDER PER R.S. SYAL, VP: THESE TWO APPEALS FILED BY THE ASSESSEE ARISE OUT OF THE ORDERS PASSED BY THE CIT(A) ON 04.04.2011 CONFIRMING THE PENALTIE S IMPOSED BY THE ITA NOS.3461 & 3462/DEL/2011 2 ASSESSING OFFICER U/S 271(1)(C) OF THE INCOME-TAX A CT, 1961 IN RELATION TO THE ASSESSMENT YEARS 2000-01 & 2001-02. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE TH AT CERTAIN ADDITIONS WERE MADE BY THE ASSESSING OFFICER IN HIS ORDERS PASSED U/S 143(3) FOR THE CAPTIONED YEARS ON 28.03.2003 AND 24.03.2004 RESPEC TIVELY. THE ASSESSEE PREFERRED APPEALS BEFORE THE LD. CIT(A), WHO CONFIR MED CERTAIN ADDITIONS. PURSUANT TO THAT, PENALTIES OF RS.2,99,40,068 (FOR THE A.Y. 2000-01) AND RS.1,97,95,292/- (FOR THE A.Y. 2001-02) WERE IMPOSE D. THE ASSESSEE IS AGGRIEVED AGAINST THE CONFIRMATION OF SUCH PENALTIE S. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. VIDE SEPARATE ORDERS PASSED TO DAY IN QUANTUM PROCEEDINGS, WE HAVE REMITTED THE MATTER TO THE FIL E OF ASSESSING OFFICER WITH A DIRECTION TO DECIDE THE ISSUES OF INCOME EAR NED FROM INDIAN CONCERNS TOWARDS FEE FOR TECHNICAL SERVICES AND ALLOCATION O F EXPENSES AFRESH IN THE LIGHT OF CERTAIN DIRECTIONS GIVEN. SINCE THE MATTE R IN QUANTUM PROCEEDINGS HAS BEEN RESTORED TO THE FILE OF THE ASSESSING OFFI CER, WE ARE OF THE CONSIDERED OPINION THAT IT WOULD BE IN THE FITNESS OF THINGS IF THE MATTER ITA NOS.3461 & 3462/DEL/2011 3 CONCERNING THE PENALTY ON SUCH AMOUNTS IS ALSO SENT BACK TO BE DECIDED IN CONFORMITY WITH THE VIEW TAKEN BY THE ASSESSING OFF ICER IN THE PROCEEDINGS PURSUANT TO THE DIRECTIONS GIVEN BY THE TRIBUNAL. O UR VIEW IN RESTORING THE PENALTY TO THE AO IS FORTIFIED BY THE JUDGMENT OF T HE HONBLE SUPREME COURT IN THE CASE OF MOHD. MOHATRAM FAROOQUI VS. CIT (SC) 2010-TIOL- 23-SC-IT IN WHICH IT HAS BEEN HELD THAT IF ADDITION IS REST ORED TO THE AO, THEN PENALTY SHOULD ALSO BE RESTORED. THE HONBLE J URISDICTIONAL HIGH COURT IN SANJAY GUPTA VS. CIT (2014) 366 ITR 18 (DEL) HAS ALSO HELD THAT WHERE THE QUANTUM HAS BEEN REMANDED TO THE AO, THE QUESTI ON OF PENALTY ON ACCOUNT OF THE SAID AMOUNT BEING TREATED AS UNDISCL OSED INCOME, SHOULD ALSO BE REMANDED TO THE AO. WE, THEREFORE, SET ASID E THE IMPUGNED ORDERS AND REMIT THE MATTER TO THE FILE OF THE AO FOR DETE RMINING THE QUESTION OF IMPOSITION OR OTHERWISE OF THE PENALTIES, AFTER THE PASSING OF FRESH ASSESSMENT ORDERS ON THIS COUNT. NEEDLESS TO SAY, T HE ASSESSEE WILL BE ALLOWED A REASONABLE OPPORTUNITY OF HEARING IN THIS REGARD. ITA NOS.3461 & 3462/DEL/2011 4 4. IN THE RESULT, THE APPEALS FILED BY THE AS SESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON 04.07.2 018. SD/- SD/- [K. NARASIMHA CHARY] [R.S. SYAL] JUDICIAL MEMBER VICE PRESIDENT DATED, 04 TH JULY, 2018. DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.