Tiong Woon Project & Contracting (India) Pvt. Ltd., Chennai V. The Dy.CIT, Circle-4(1)(2), Ahmedabad

ITA 419/AHD/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7622 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 11-07-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 22-02-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: K MEENATCHI SUNDARAM
• Keywords: Period of limitation

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI . . . , .. ' #$, & '( BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER ./ ITA NO.419/AHD/2016 * +* / ASSESSMENT YEAR : 2011-12 M/S TIONG WOON PROJECT & CONTRACTING (INDIA) PVT. LTD., C/O SUNDARAM & NARAYANAN, CHARTERED ACCOUNTANTS, 18, BALAIAH AVENUE, LUZ CHURCH ROAD, MYLAPORE, CHENNAI - 600 004. PAN : AADCT 1263 C V. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 4(1)(2), AHMEDABAD. (-./ APPELLANT) (/0-./ RESPONDENT) -. 1 2 / APPELLANT BY : SHRI K. MEENATCHI SUNDARAM, CA /0-. 1 2 / RESPONDENT BY : DR. MILIND MADHUKAR BHUSARI, C IT ' 1 3& / DATE OF HEARING : 21.12.2017 45+ 1 3& / DATE OF PRONOUNCEMENT : 09.03.2017 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE ASSESSING OFFICER, CONSEQUENT TO THE DIRECTION OF THE DISPUTE RESOLUTION PANEL. 2 I.T.A. NO.419/MDS/16 2. SHRI K. MEENATCHI SUNDARAM, THE LD. REPRESENTATI VE FOR THE ASSESSEE, SUBMITTED THAT THE ORDER OF ASSESSMENT IS TIME BARRED. REFERRING TO SECTION 144C(5) OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'), THE LD. REPRESENTATIVE SUBMITTED THAT T HE ASSESSING OFFICER HAS TO PASS THE ASSESSMENT ORDER ON OR BEFO RE 31.05.2015. SINCE THE OBJECTION WAS NOT FILED WITHIN THE TIME F RAME, ACCORDING TO THE LD. REPRESENTATIVE, THE DRP OUGHT NOT TO HAVE I SSUED ANY DIRECTION AT ALL. THE DISPUTE RESOLUTION PANEL HAS NO POWER TO CONDONE THE DELAY IN FILING HE OBJECTION, CONSEQUEN TLY THE DIRECTION GIVEN UNDER SECTION 144C(5) OF THE ACT CANNOT BE GI VEN EFFECT TO. THE LD. REPRESENTATIVE PLACED HIS RELIANCE ON THE J UDGMENT OF DELHI HIGH COURT IN ST MICROELECTRONICS (P.) LTD. V. DCIT (2016) 384 ITR 550 AND ALSO THE DECISION OF COCHIN BENCH OF THIS T RIBUNAL IN ENVESTNET ASSET MANAGEMENT (INDIA) (P.) LTD. V. ACI T (2015) 67 SOT 217. THE LD. REPRESENTATIVE FURTHER SUBMITTED THAT THE OBJECTION TO THE DRAFT ASSESSMENT ORDER WAS FILED B ELATEDLY. IN FACT, INITIALLY, THE OBJECTION WAS FORWARDED TO DRP BY CO URIER ON 28.03.2015. HOWEVER, THE SAME WAS RETURNED TO THE ASSESSEE ON THE GROUND THAT NO SUCH ADDRESSEE. ACCORDING TO TH E LD. REPRESENTATIVE, THE ASSESSEE VISITED THE DISPUTE RE SOLUTION PANEL OFFICE IN PERSON ON 06.04.2015 AND IT WAS INFORMED THAT THE OFFICE 3 I.T.A. NO.419/MDS/16 WAS CLOSED AND IT WAS OPERATING FROM MUMBAI. ACCOR DINGLY, THE OBJECTION WAS FILED IN MUMBAI. 3. WE HAVE HEARD DR. MILIND MADHUKAR BHUSARI, THE L D. DEPARTMENTAL REPRESENTATIVE ALSO. THE ASSESSEE CLA IMS THAT THE OBJECTION WAS FILED BEFORE THE DRP BELATEDLY. HOWE VER, THE OBJECTION WAS ADMITTEDLY FILED BEFORE THE ASSESSING OFFICER WITHIN THE TIME FRAME. WE HAVE CAREFULLY GONE THROUGH THE PROVISIONS OF SECTION 144C OF THE ACT. SECTION 144C(2) OF THE AC T PROVIDES THAT ON RECEIPT OF THE DRAFT ASSESSMENT ORDER, THE ASSES SEE HAS TO FILE OBJECTION WITHIN 30 DAYS WITH (I) THE DISPUTE RESOL UTION PANEL; AND (II) THE ASSESSING OFFICER. THEREFORE, IT IS OBLIG ATORY ON THE PART OF THE ASSESSEE TO FILE OBJECTION BEFORE BOTH THE DISP UTE RESOLUTION PANEL AS WELL AS THE ASSESSING OFFICER. IN THIS CA SE, ADMITTEDLY, THE ASSESSEE FILED OBJECTION BEFORE THE ASSESSING OFFIC ER AND THERE WAS DELAY IN FILING THE OBJECTION BEFORE THE DRP, WHO W AS OPERATING FROM MUMBAI. HENCE, THE OBJECTION WAS FILED BEFORE THE ASSESSING OFFICER. THE ASSESSING OFFICER BEING A PUBLIC AUTH ORITY, HAS TO FORWARD A COPY OF THE OBJECTION ALONG WITH OTHER RE CORDS, TO DISPUTE RESOLUTION PANEL. THEREFORE, MERELY BECAUSE THERE WAS DELAY IN FILING OBJECTION DUE TO SHIFTING OF OFFICE PREMISES OF THE DISPUTE 4 I.T.A. NO.419/MDS/16 RESOLUTION PANEL THAT CANNOT BE A REASON TO HOLD TH AT THE ORDER PASSED BY THE ASSESSING OFFICER CONSEQUENT TO THE D IRECTION OF DRP IS BARRED BY LIMITATION. 4. WE HAVE CAREFULLY GONE THROUGH THE DIRECTION OF DISPUTE RESOLUTION PANEL. THE DISPUTE RESOLUTION PANEL HAS TAKEN CARE OF OBJECTION FILED BY THE ASSESSEE. THE ASSESSEE WAS ALSO GIVEN AN OPPORTUNITY TO PRESENT ITS CASE BEFORE DISPUTE RESO LUTION PANEL. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINI ON THAT THE ORDER PASSED BY THE DISPUTE RESOLUTION PANEL AND THE ASSE SSING OFFICER ARE WELL WITHIN THE PERIOD OF LIMITATION, THEREFORE , THERE IS NO INFIRMITY IN THE DIRECTION OF DRP AS WELL AS THE ASSESSING OF FICER. 5. NOW COMING TO THE MERIT, THE DRP PLACED ITS RELI ANCE ON THE DECISION OF BANGALORE BENCH OF THIS TRIBUNAL IN INT EL ASIA ELECTRONICS INC. V. ADIT (2011) 30 CCH 44 TO ADOPT THE NET BOOK VALUE PLUS EXPENSES. THIS TRIBUNAL IS OF THE CONSIDERED OPINI ON THAT IN VIEW OF THE DECISION OF BANGALORE BENCH OF THIS TRIBUNAL, N ET BOOK VALUE PLUS EXPENSES CAN BE ADOPTED FOR THE PURPOSE OF ADJ USTMENT. THEREFORE, THIS TRIBUNAL DO NOT FIND ANY REASON TO INTERFERE WITH THE DIRECTION OF THE DRP AND THE SAME IS CONFIRMED. 5 I.T.A. NO.419/MDS/16 6. THE DRP HAS ADOPTED CUP METHOD BY FOLLOWING THE DECISION OF MUMBAI BENCH OF THIS TRIBUNAL IN LINTAS INDIA PV T. LTD. V. ACIT [27 TAXMANN.COM 300]. IN VIEW OF THIS, THIS TRIBUN AL DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE LOWER AUT HORITY AND ACCORDINGLY THE SAME IS CONFIRMED. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON 9 TH MARCH, 2017 AT CHENNAI. SD/- SD/- ( . . ' #$ ) ( . . . ) (D.S. SUNDER SINGH) (N.R.S. GANESAN) & / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 7 /DATED, THE 9 TH MARCH, 2017. KRI. 1 /3#8 98+3 /COPY TO: 1. -. /APPELLANT 2. /0-. /RESPONDENT 3. ' :3 () /CIT(A) 4. ' :3 /CIT 5. 8; /3 /DR 6. * < /GF.