Foster Wheeler Bengal Pvt. Ltd., (merged with Amee Foster Wheeler India Pvt. Ltd.,), Kolkata V. ACIT, Circle - 2(1), Kolkata, Kolkata

ITA 41/KOL/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0131 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 10 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-12-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 09-01-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P K SRIHARI
• Assessee Lawyers: NAGESHWAR RAO SR
• Keywords: Depreciation; Transfer pricing; International transaction; Unabsorbed depreciation
• Section: 143(3); 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : KOLKATA [BEFORE HONBLE SHRI S.S.GODARA, JM & HONBLE SHRI M.BALAGANESH, AM] I.T.A NO. 41/KOL/2017 ASSESSMENT YEAR : 2012-1 3 FOSTER WHEELER BENGAL PVT. LTD. -VS- ACIT, CIR CLE-2(1), KOLKATA (MERGED WITH AMEC FOSTER WHEELER INDIA PVT. LTD.) [PAN: AABCF 2267 Q] (APPELLANT) (RESP ONDENT) FOR THE APPELLANT : SHRI NAGESHWAR RAO , SR. COUNSEL FOR THE RESPONDENT : SHRI P.K. SRIHARI, C IT DR DATE OF HEARING : 12.11.2018 DATE OF PRONOUNCEMENT : 07.12.2018 ORDER PER M.BALAGANESH, AM 1. THIS APPEAL IS DIRECTED AGAINST THE FINAL ASSESS MENT ORDER PASSED UNDER SECTION (IN SHORT U/S) 143(3) READ WITH SECTION 144C(1) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 30.09.2016 BY THE LD. ACIT, CIRCLE-2(1) , KOLKATA (IN SHORT THE LD. AO) PURSUANT TO THE DIRECTIONS ISSUED BY THE LD. DISPUT E RESOLUTION PANEL (IN SHORT LD. DRP) U/S 144C(5) OF THE ACT DATED 17.08.2017 FOR THE ASS ESSMENT YEAR 2012-13. 2. THE GROUND NOS. 1 & 12 RAISED BY THE ASSESSEE WE RE STATED TO BE NOT PRESSED BY THE LD AR AT THE TIME OF HEARING. THE SAME IS RECKONED AS A STATEMENT FROM THE BAR AND ACCORDINGLY GROUND NOS. 1 & 12 RAISED BY THE ASSESS EE ARE DISMISSED AS NOT PRESSED. 2 ITA NO.41/KOL/2017 FOSTER WHEELER BENGAL PVT. LTD. A.YR. 2012-13 2 3. THE GROUND NO. 2 RAISED BY THE ASSESSEE IS GENER AL IN NATURE AND DOES NOT REQUIRE ANY SPECIFIC ADJUDICATION. 4. THE GROUND NOS 3 TO 11 RAISED BY THE ASSESSEE AR E WITH REGARD TO ADJUSTMENT MADE TO ARMS LENGTH PRICE OF INTERNATIONAL TRANSACTIONS CA RRIED OUT BY THE ASSESSEE. AT THE OUTSET, WE FIND THAT THE LD SENIOR COUNSEL FOR THE ASSESSEE BEFORE US ARGUED THAT THE COMPARABLES STATED BY THE ASSESSEE WERE NOT CONSIDE RED BY THE LD TPO / LD DRP AND REQUESTED FOR SETTING ASIDE OF THE ISSUE TO THE FIL E OF LD TPO FOR DENOVO ADJUDICATION. THE LD DR BEFORE US FAIRLY AGREED TO THE SAME. HAV ING HEARD THE RIVAL SUBMISSIONS , IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE DEEM IT FIT AND APPROPRIATE, IN THE INTEREST OF JUSTICE AND FAIRPLAY, TO REMAND THIS ISSUE OF ADJUS TMENT MADE TO ALP OF INTERNATIONAL TRANSACTIONS FOR DENOVO ADJUDICATION BY THE LD TPO IN ACCORDANCE WITH LAW, UNINFLUENCED BY EARLIER DECISION TAKEN BY HIM OR BY LD DRP IN THIS ISSUE. THE ASSESSEE IS HEREBY DIRECTED TO CO-OPERATE WITH THE LD TPO BY SUBMITTING THE NECESSARY DOCUMENTATION IN SUPPORT OF ITS CONTENTIONS. THE AS SESSEE IS ALSO AT LIBERTY TO ADDUCE FRESH EVIDENCES IN SUPPORT OF ITS CONTENTIONS. ACC ORDINGLY, ALL THE GROUNDS RELATING TO TRANSFER PRICING ADJUSTMENT NUMBERING FROM 3 TO 11 RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 5. THE GROUND NO. 13 RAISED BY THE ASSESSEE IS WITH REGARD TO THE ACTION OF THE LD AO IN NOT GRANTING SET OFF OF UNABSORBED DEPRECIATION AMO UNTING TO RS 1,47,02,303/- AS DIRECTED BY LD DRP. SINCE THE MAIN ISSUE INVOLVED IN THE APPEAL OF THE ASSESSEE IS SET ASIDE TO THE FILE OF LD AO/ LD TPO, WE DEEM IT FIT TO HOLD THAT THIS ISSUE ALSO REQUIRES DE NOVO ADJUDICATION BY THE LD AO. ACCORDINGLY, THE G ROUND NO. 13 RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 3 ITA NO.41/KOL/2017 FOSTER WHEELER BENGAL PVT. LTD. A.YR. 2012-13 3 6. THE GROUND NO. 14 RAISED BY THE ASSESSEE IS WITH REGARD TO CHARGEABILITY OF INTEREST U/S 234B & 234D OF THE ACT WHICH IS CONSEQUENTIAL I N NATURE AND DOES NOT REQUIRE ANY SPECIFIC ADJUDICATION. 7. THE GROUND NO. 15 RAISED BY THE ASSESSEE IS WITH REGARD TO INITIATION OF PENALTY U/S 271(1)( C) OF THE ACT WHICH WOULD BE DECIDED AFRESH BY THE LD AO IN ACCORDANCE WITH LAW WHILE GIVING EFFECT TO THIS ORDER. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 07.12.2018 SD/- SD/- [S.S. GODARA] [ M .BALAGANESH ] JUDICIAL MEMBER ACCOUNTANT MEM BER DATED : 07.12.2018 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. FOSTER WHEELER BENGAL PVT. LTD., (MERGED WITH AM EC FOSTER WHEELER INDIA PVT. LTD.), INFINITY BENCHMARK, 13 TH FLOOR, PLOT, G-1, BLOCK-EP & GP, SECTOR V, SALT LA KE, KOLKATA-700091. 2. ACIT, CIRLCE-2(1), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA- 700069. 3..C.I.T.(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER A SSISTANT REGISTRAR ITAT , KOLKATA BENCHES