M/s Idiada Automotive Technology, S.A., Kolkata V. DCIT, Intl. Taxation, New Delhi

ITA 3912/DEL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87029 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 8 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 10-03-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 19-06-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: S KALYANASUNDARAM
• Keywords: Rectification of order; Double taxation relief
• Section: 143(3); 154

Judgement Text

ITA NO.3912/DEL/2013 ASSTT.YEAR: 2009-10 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `C NEW DELHI BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER AND SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER I.T.A.NO.3912/DEL/2013 ASSESSMENT YEAR : 2009-10 IDIADA AUTOMOTIVE TECHNOLOGY, S.A., VS DDIT, INTERNATIONAL TAXATION, S. KALYANASUNDARAM, CIRCLE 3(2), NEW DELHI. 1A, 240 N.S.C. BOSE ROD, KOLKATA (PAN: AABCI5985Q) (APPELLANT) (RESPONDENT ) APPELLANT BY: SHRI S. KALYANASUNDARAM, RESPONDENT BY : SHRI BINOD KUMAR, CIT DR DATE OF HEARING: 10.3.2015 DATE OF PRONOUNCEMENT:13.03.2015 O R D E R PER CHANDRA MOHAN GARG, JUDICIAL MEMBER THE ABOVE APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE AO DATED 25.4.2013 PASSED U/S 154 OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT) IN RESPECT OF THE ORDER U/S 143(3)/144C OF THE ACT IN PURSUANCE OF DIRECTION OF DISPUTE RESOLUTION PANEL (DRP) FOR AY 2009-10. 2. WE HAVE HEARD ARGUMENTS OF BOTH THE SIDES AND CA REFULLY PERUSED THE RELEVANT MATERIAL PLACED ON RECORD. LD. ASSESSEES REPRESENTATIVE POINTED OUT THAT THE AO COMPLETED ASSESSMENT U/S 143(3) OF THE ACT AT THE INCOME OF ITA NO.3912/DEL/2013 ASSTT.YEAR: 2009-10 2 RS.1,05,82,486 AND RAISED A DEMAND OF RS.63,90,663 AND THE ASSESSEE RECEIVED THIS ORDER ON 30.10.2012. LD. DR FURTHER POINTED O UT THAT THE ASSESSEE FILED AN APPLICATION FOR RECTIFICATION U/S 154 OF THE ACT ON 6.11.2012 WHICH WAS PARTLY ALLOWED BY THE AO BUT THE AO DID NOT PROPERLY ADJUD ICATE THE ISSUE RAISED BY THE ASSESSEE IN ITS APPLICATION U/S 154 OF THE ACT RAISED IN POINT NO. 6 AND 7 THEREIN. LD. AR ALSO POINTED OUT THAT IN THE IMPUG NED ORDER OF RECTIFICATION DATED 25.4.2013, THE AO HAS GIVEN DEDUCTION OF RS.1 1,17,616 TOWARDS TDS BUT THE TOTAL CLAIM OF TDS WAS RS.45,41,322 AS PER RECO NCILIATION OF INCOME AND TDS FOR AY 2009-10. 3. LD. DR REPLIED THAT HE IS UNABLE TO EXPLAIN THE AMOUNT OF RS.1117616 AS MENTIONED IN THE IMPUGNED ORDER OF RECTIFICATION PA SSED U/S 154 OF THE ACT. HOWEVER, LD. DR FAIRLY ACCEPTED THAT WITH REGARD TO THE ISSUES RAISED BY THE ASSESSEE AT POINT NO. 6 AND 7 OF THE RECTIFICATION APPLICATION FILED U/S 154 OF THE ACT, THE AO HAS NOT PAID ANY HEED WHILE ADJUDICATIN G THE APPLICATION OF THE ASSESSEE FOR RECTIFICATION. LD. DR FINALLY SUBMITTE D THAT THE DEPARTMENT HAS NO SERIOUS OBJECTION IF THE DISPUTES EMERGING FROM POI NT NO.6 AND 7 OF RECTIFICATION APPLICATION OF THE ASSESSEE ARE DIRECTED TO BE ADJU DICATED BY THE AO AFTER AFFORDING DUE OPPORTUNITY OF HEARING FOR THE ASSESS EE. 4. ON CAREFUL CONSIDERATION OF ABOVE SUBMISSIONS, W E NOTE THAT IN THE RECTIFICATION APPLICATION FILED BY THE ASSESSEE U/S 154 OF THE ACT ON 6.11.2012, THE ISSUE OF TAX COMPUTATION IN REGARD TO RATE OF T AXATION AND TDS HAS BEEN ITA NO.3912/DEL/2013 ASSTT.YEAR: 2009-10 3 RAISED BY THE ASSESSEE IN PARA NO. 6 AND 7 OF THE R ECTIFICATION APPLICATION WHICH READ AS UNDER:- REFER TAX COMPUTATION SERVED ALONG WITH NOTICE OF DEMAND U/S 156: IN THE SAID CALCULATION, THE RATE O F TAXATION THAT HAS BEEN APPLIED FOR FTS (INR 89,78,850/-) IS 40% INSTEAD OF 10%. SIMILARLY, THE RATE OF TAXATION A PPLIED ON INTEREST INCOME (INR 4,07,849/-) IS 40% INSTEAD OF 15%. NOTE THAT IN THE CASE OF INTEREST AND FTS, THERE WILL BE NO SURCHARGE ON TAXES IN TERMS OF THE DTAA BETWEEN INDIA AND SPA IN BECAUSE THE TERM TAXES INCLUDES ANY SURCHARGES. NOTE FURTHER THAT AS PER RULING OF HONBLE ITAT KOLKATA IN DIC ASIA PACIFIC PTE LTD. VS ADIT INTERNATIONAL TAXATION (1 ) KOLKTA, THE TERM TAXES IN DTAA ALSO INCLUDE E-CESS. THER EFORE, NO E-CESS/SHE CESS MAY BE CHARGED EITHER. 7. REFER TAX COMPUTATION SERVED ALONG WITH NOTICE OF DEMAND: CREDIT FOR TDS HAS NOT BEEN GIVEN ALTHOUGH TDS CERTIFICATES HAD BEEN SUBMITTED. IN ANY EVENT, THE Y ARE ATTACHED HEREWITH FOR A TOTAL OF INR 45,41,322/-. 5. ON VIGILANT PERUSAL OF THE IMPUGNED RECTIFICATIO N ORDER PASSED BY THE AO U/S 154 OF THE ACT, WE NOTE THAT THE AO HAS GIVEN C REDIT OF RS.1117616 TO THE ASSESSEE AND WE ARE UNABLE TO UNDERSTAND THE BASIS AND SOURCE OF THIS FIGURE. HOWEVER, LD. AR HAS FILED A STATEMENT SHOWING RECON CILIATION OF INCOME AND TDS CLAIMED FOR AY 2009-10 WHICH IS ALSO IN ACCORDA NCE WITH POINT NO. 7 WHICH WAS RAISED IN THE RECTIFICATION APPLICATION. LD. AR HAS ALSO DRAWN OUR ATTENTION TOWARDS DETAILED SYNOPSIS AND INSTRUCTION NO. 04/2013 OF CBDT DATED 5.7.2013 TO SUPPORT HIS CONTENTIONS. FROM BARE REA DING OF THE IMPUGNED RECTIFICATION ORDER, WE CLEARLY OBSERVE THAT THE AO HAS NOT ADDRESSED AND ADJUDICATED THE ISSUE RAISED BY THE ASSESSEE IN POI NT NO. 6 AND 7 OF THE ITA NO.3912/DEL/2013 ASSTT.YEAR: 2009-10 4 RECTIFICATION APPLICATION. THIS FACT HAS ALSO BEEN CONCEDED BY THE LD. DR DURING THE ARGUMENTS PLACED BEFORE US. 6. HENCE, WE ARE OF THE CONSIDERED OPINION THAT THE ISSUES RAISED BY THE ASSESSEE AT POINT NO. 6 AND 7 IN THE RECTIFICATION APPLICATION REQUIRE PROPER ADJUDICATION BY THE AO, THEREFORE, WE RESTORE THESE ISSUES TO THE FILE OF THE AO FOR PROPER ADJUDICATION AFTER AFFORDING DUE OPPORTU NITY OF HEARING FOR THE ASSESSEE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DEE MED TO BE ALLOWED FOR STATISTICAL PURPOSES IN THE MANNER AS INDICATED ABO VE. ORDER PRONOUNCED IN THE OPEN COURT ON 13.03.2015. SD/- SD/- (S. V. MEHROTRA) (CHANDRAMOHAN GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DT. 13TH MARCH 2015 GS COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. C.I.T.(A) 4. C.I.T. 5. DR BY ORDER ASSTT.REGISTRAR