NetApp B.V., Noida V. DCIT (International Taxation), New Delhi

ITA 433/DEL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3098 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-05-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 28-01-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ANIL KUMAR SHARMA SENIOR
• Assessee Lawyers: ANUBHAV JAIN S
• Keywords: Application of stay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH B BB B : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI G.D. AGRAWAL, G.D. AGRAWAL, G.D. AGRAWAL, G.D. AGRAWAL, PRESIDENT PRESIDENT PRESIDENT PRESIDENT AND AND AND AND SHRI BHAVNESH SAINI SHRI BHAVNESH SAINI SHRI BHAVNESH SAINI SHRI BHAVNESH SAINI, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER STAY APPLICATION NO.274/DEL/2017 AND STAY APPLICATION NO.274/DEL/2017 AND STAY APPLICATION NO.274/DEL/2017 AND STAY APPLICATION NO.274/DEL/2017 AND ITA NO.433/DEL/201 ITA NO.433/DEL/201 ITA NO.433/DEL/201 ITA NO.433/DEL/2016 66 6 ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 2012 2012 2012 2012 - -- - 13 1313 13 M/S NETAPP B.V., M/S NETAPP B.V., M/S NETAPP B.V., M/S NETAPP B.V., C/O SRB C/O SRB C/O SRB C/O SRBC & ASSOCIATES LLP, C & ASSOCIATES LLP, C & ASSOCIATES LLP, C & ASSOCIATES LLP, INDIA GLYCOS PVT.LTD., INDIA GLYCOS PVT.LTD., INDIA GLYCOS PVT.LTD., INDIA GLYCOS PVT.LTD., 4 44 4 TH THTH TH & 5 & 5 & 5 & 5 TH THTH TH FLOOR, FLOOR, FLOOR, FLOOR, COMMERCIAL COMPLEX COMMERCIAL COMPLEX COMMERCIAL COMPLEX COMMERCIAL COMPLEX BUILDING, TOWER II BUILDING, TOWER II BUILDING, TOWER II BUILDING, TOWER II- -- -B, B,B, B, GAUTAM BUDDHA NAGAR, GAUTAM BUDDHA NAGAR, GAUTAM BUDDHA NAGAR, GAUTAM BUDDHA NAGAR, SECTOR SECTOR SECTOR SECTOR- -- -126, 126, 126, 126, NEAR LOTUS VALLEY SCHOOL, NEAR LOTUS VALLEY SCHOOL, NEAR LOTUS VALLEY SCHOOL, NEAR LOTUS VALLEY SCHOOL, NOIDA EXPRESS NOIDA EXPRESS NOIDA EXPRESS NOIDA EXPRESS 201 304. 201 304. 201 304. 201 304. PAN : AADCN2178C. PAN : AADCN2178C. PAN : AADCN2178C. PAN : AADCN2178C. VS. VS. VS. VS. DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CIRCLE CIRCLE CIRCLE CIRCLE- -- -2(2)( 2(2)( 2(2)( 2(2)(2), INTERNATIONAL TAX, 2), INTERNATIONAL TAX, 2), INTERNATIONAL TAX, 2), INTERNATIONAL TAX, R.NO.310, 3 R.NO.310, 3 R.NO.310, 3 R.NO.310, 3 RD RDRD RD FLOOR, E FLOOR, E FLOOR, E FLOOR, E- -- -2 BLOCK, 2 BLOCK, 2 BLOCK, 2 BLOCK, PRATYAKSH KAR BHAWAN, PRATYAKSH KAR BHAWAN, PRATYAKSH KAR BHAWAN, PRATYAKSH KAR BHAWAN, CIVIC CENTRE, J.L.N. MARG, CIVIC CENTRE, J.L.N. MARG, CIVIC CENTRE, J.L.N. MARG, CIVIC CENTRE, J.L.N. MARG, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 002. 110 002. 110 002. 110 002. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI G.C. SRIVASTAVA, SHRI DAKSH S. BHARDWAJ AND SHRI ANUBHAV JAIN, ADVOCATES. RESPONDENT BY : SHRI ANIL KUMAR SHARMA, SENIOR DR. DATE OF HEARING : 19.05.2017 DATE OF PRONOUNCEMENT : 19.05.2017 ORDER ORDER ORDER ORDER PER G.D. AGRAWAL, PRESIDENT PER G.D. AGRAWAL, PRESIDENT PER G.D. AGRAWAL, PRESIDENT PER G.D. AGRAWAL, PRESIDENT : :: :- -- - WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOTH TH E SIDES AND PERUSED THE MATERIAL ON RECORD. S.A.NO.274/D/2017 & ITA NO.433/D/2016 2 2. THE STAY APPLICATION NO.274/DEL/2017 WAS FIXED FOR HEARING TODAY. HOWEVER, WITH THE CONSENT OF BOTH THE PARTIE S, THE APPEAL IN ITA NO.433/DEL/2016 HAS ALSO BEEN HEARD ALONG WITH STAY AP PLICATION. 3. ITA NO.433/DEL/2016 IS DIRECTED AGAINST THE ASSESSMEN T ORDER DATED 21 ST DECEMBER, 2015 FOR ASSESSMENT YEAR 2012-13 U/S 143(3)/144C(1) OF THE INCOME-TAX ACT, 1961 PASSED IN PURSUANCE TO THE DRP ORDER. 4. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT I N EARLIER YEARS, ON IDENTICAL GROUNDS OF APPEAL, ITAT, DELHI BE NCH IN ITA NO.4781/DEL/2013 FOR ASSESSMENT YEAR 2008-09 AND FOR ASSE SSMENT YEAR 2010-11 IN ITA NO.634/DEL/2015 HAVE DECIDED TH E APPEALS OF THE ASSESSEE VIDE ORDER DATED 16 TH JANUARY, 2017. HE HAS SUBMITTED THAT ALL THE GROUNDS RAISED IN THE PRESENT APPEAL HAVE ALR EADY BEEN DECIDED BY THE TRIBUNAL IN THE EARLIER ORDER AND PRAYED THA T THE ADDITION MAY BE DELETED IN THE LIGHT OF ABOVE DECISIONS. 5. LEARNED DR, HOWEVER, SUBMITTED THAT MATTER MAY BE REMANDED TO THE ASSESSING OFFICER FOR PASSING THE ORDER AFRESH IN THE LIGHT OF THE ORDER DATED 16 TH JANUARY, 2017, COPY OF WHICH IS FILED AT PAGE 66 IN THE STAY APPLICATION. 6. IN THIS VIEW OF THE MATTER AND CONSIDERING THE FAC T THAT ISSUES ARE IDENTICAL IN THE PRESENT APPEAL AS HAVE BEEN DECIDED BY THE TRIBUNAL IN EARLIER YEARS 2008-09 AND 2010-11 VIDE ORDER DATED 1 6 TH JANUARY, 2017 (SUPRA), WE SET ASIDE THE ORDERS OF AUTHORITIES BELOW AN D RESTORE THE MATTER IN ISSUE AS RAISED IN THE GROUNDS OF APPEAL TO T HE FILE OF THE ASSESSING OFFICER WITH DIRECTION TO RE-DECIDE THE GROU NDS OF APPEAL IN THE LIGHT OF THE ORDER OF THE TRIBUNAL DATED 16 TH JANUARY, 2017 (SUPRA). S.A.NO.274/D/2017 & ITA NO.433/D/2016 3 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE STAY APPLICATION HAS BECOME INFRUCTUOU S AND IS ACCORDINGLY DISPOSED OF. DECISION PRONOUNCED IN THE OPEN COURT ON 19.05.2017. SD/- SD/- (BHAVNESH SAINI (BHAVNESH SAINI (BHAVNESH SAINI (BHAVNESH SAINI ) )) ) ( (( ( G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL G.D. AGRAWAL ) )) ) JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VK. COPY FORWARDED TO: - 1. APPELLANT : M/S NETAPP B.V., C/O SRBC & ASSOC IATES LLP, M/S NETAPP B.V., C/O SRBC & ASSOCIATES LLP, M/S NETAPP B.V., C/O SRBC & ASSOCIATES LLP, M/S NETAPP B.V., C/O SRBC & ASSOCIATES LLP, INDIA GLYCOS PVT.LTD., 4 INDIA GLYCOS PVT.LTD., 4 INDIA GLYCOS PVT.LTD., 4 INDIA GLYCOS PVT.LTD., 4 TH THTH TH & 5 & 5 & 5 & 5 TH THTH TH FLOOR, FLOOR, FLOOR, FLOOR, COMMERCIAL COMPLEX BUILDING, TOWER II COMMERCIAL COMPLEX BUILDING, TOWER II COMMERCIAL COMPLEX BUILDING, TOWER II COMMERCIAL COMPLEX BUILDING, TOWER II- -- -B, B,B, B, GAUTAM BUDDHA NAGAR, SECTOR GAUTAM BUDDHA NAGAR, SECTOR GAUTAM BUDDHA NAGAR, SECTOR GAUTAM BUDDHA NAGAR, SECTOR- -- -126, 126, 126, 126, NEAR LOTUS VALLEY SCHOOL, NOIDA EXPRESS NEAR LOTUS VALLEY SCHOOL, NOIDA EXPRESS NEAR LOTUS VALLEY SCHOOL, NOIDA EXPRESS NEAR LOTUS VALLEY SCHOOL, NOIDA EXPRESS 201 304. 201 304. 201 304. 201 304. 2. RESPONDENT : DEP DEP DEP DEPUTY COMMISSIONER OF INCOME TAX, UTY COMMISSIONER OF INCOME TAX, UTY COMMISSIONER OF INCOME TAX, UTY COMMISSIONER OF INCOME TAX, CIRCLE CIRCLE CIRCLE CIRCLE- -- -2(2)(2), INTERNATIONAL TAX, 2(2)(2), INTERNATIONAL TAX, 2(2)(2), INTERNATIONAL TAX, 2(2)(2), INTERNATIONAL TAX, R.NO.310, 3 R.NO.310, 3 R.NO.310, 3 R.NO.310, 3 RD RDRD RD FLOOR, E FLOOR, E FLOOR, E FLOOR, E- -- -2 BLOCK, 2 BLOCK, 2 BLOCK, 2 BLOCK, PRATYAKSH KAR BHAWAN, CIVIC CENTRE, J.L.N. MARG, PRATYAKSH KAR BHAWAN, CIVIC CENTRE, J.L.N. MARG, PRATYAKSH KAR BHAWAN, CIVIC CENTRE, J.L.N. MARG, PRATYAKSH KAR BHAWAN, CIVIC CENTRE, J.L.N. MARG, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 002. 110 002. 110 002. 110 002. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR