DCIT (International Taxation), Dehradun V. M/s. Dolphin Drilling Ltd., Dehradun

ITA 4841/DEL/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7059 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 7 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 09-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: AMIT ARORA SHRI VISHAL MISHRA
• Keywords: Set aside
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH B : NEW DELHI) BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.4841/DEL./2016 (ASSESSMENT YEAR : 2011-12) DCIT, CIRCLE 1, VS. M/S. DOLPHIN DRILLING LIMITED, INTERNATIONAL TAXATION, C/O NANGIA & CO. NCR PLAZA , NEW DELHI. NEW CANTT. ROAD, DEHRADUN. (PAN : AABCD8263C) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI AMIT ARORA, ADVOCATE SHRI VISHAL MISHRA, ADVOCATE REVENUE BY : NONE DATE OF HEARING : 25.04.2019 DATE OF ORDER : 30.04.2019 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : THE APPELLANT, DCIT, CIRCLE 1, INTERNATIONAL TAXAT ION, DEHRADUN (HEREINAFTER REFERRED TO AS THE REVENUE) BY FILING THE PRESENT APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORD ER DATED 29.06.2016 PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS)- 2, NOIDA, QUA THE ASSESSMENT YEAR 2011-12 ON THE GR OUNDS INTER ALIA THAT :- ITA NO.4841/DEL./2016 2 WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE CIT(A) HAS ERRED IN ALLOWING T HE APPEAL OF THE ASSESSEE ON THE ISSUE OF LEVY INTERES T U/S 234B OF THE INCOME TAX ACT, 1961 WHEN THE DECISION IN THE CASE OF M/S GE PACKAGED POWER INC. HAS NOT YET ATTAINED FINALITY AND THE REVIEW PETITION OF THE DEPARTMENT AGAINST THE DECISION HAS BEEN ADMITTED B Y THE HON'BLE SUPREME. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : ASSESSEE IS INTO THE BUSI NESS OF PROVIDING DRILL SHIP TO RELIANCE INDUSTRIES LTD. QUA CONTRACT NO.OG3/3598769 DATED 29.03.2006 FOR PROVISION OF SEMISUBMERSIBLE D EEP WATER DRILLING RIG (BLACKFORD DOLPHIN) AND HAS FILED RETU RN UNDER SECTION 44BB OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE AC T) BY DECLARING CONTRACT REVENUES OF RS.123,29,78,605/- F ROM RELIANCE INDUSTRIES LTD. APART FROM INTEREST OF RS.44,55,967 /-. ASSESSEE CLAIMED SET OFF OF LOSSES OF EARLIER YEARS AND AS S UCH COMPUTED THE INCOME U/S 44BB OF THE ACT OF RS.12,32,97,861/- BEI NG 10% OF GROSS REVENUE. AO LEVIED INTEREST U/S 234B OF THE ACT DECLINING THE CONTENTION OF THE ASSESSEE THAT THE INTEREST U/ S 234B IS NOT LEVIABLE AS THERE WAS NO LIABILITY ON THE PART OF T HE ASSESSEE TO PAY ADVANCE TAX IN TERMS OF SECTION 209(1)(D) OF THE AC T AND ASSESSED THE TOTAL INCOME OF THE ASSESSEE AT RS.16,12,81,958 /-. 3. ASSESSEE CARRIED THE MATTER BY WAY OF AN APPEAL BEFORE THE LD. CIT (A) WHO HAS DELETED THE ADDITION BY RELYING UPON THE ITA NO.4841/DEL./2016 3 DECISION RENDERED BY HONBLE UTTARAKHAND HIGH COURT IN CIT VS. OIL LIMITED IN ITA NO.56 OF 2007, HONBLE HIGH COUR T OF UTTARAKHAND VS. DIT, INTERNATIONAL TAXATION, DELHI- II 334 ITR 79, DELHI BENCH OF THE TRIBUNAL IN SNC-LAVALIN INTE RNATIONAL, HONBLE BOMBAY HIGH COURT IN DIT (INTERNATIONAL TAX ATION) VS. NGC NETWORK ASIA LLC IN ITA NO.1037 OF 2008, DIT (INTERNATIONAL TAXATION) VS. CLIFFORT CHANCE LLP IN ITA NO.2883 OF 2008; AND HONBLE DELHI HIGH COURT IN GE PACKAGE D POWER INC. IN ITA NO.352 OF 2014 . FEELING AGGRIEVED, THE REVENUE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE PR ESENT APPEAL. 4. REVENUE HAS NOT PREFERRED TO PUT IN APPEARANCE A ND CONSEQUENTLY, WE PROCEEDED TO DECIDE THE PRESENT AP PEAL WITH THE ASSISTANCE OF THE LD. AR FOR THE ASSESSEE AS WELL A S ON THE BASIS OF DOCUMENTS AVAILABLE ON THE FILE. 5. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE TO THE APPEAL, GONE THROUGH THE DOCUMENTS RELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. BARE PERUSAL OF THE GROUNDS OF APPEAL RAISED BY THE REVENUE, EXTRACTED AT PRECEDING PARA NO.1, GOES TO PROVE THA T THE PRESENT APPEAL HAS JUST BEEN FILED ON THE GROUND THAT THE D ECISION OF M/S. GE PACKAGED POWER INC. 373 ITR 65 HAS NOT YET ATTAINED FINALITY ITA NO.4841/DEL./2016 4 AS THE REVIEW PETITION OF THE DEPARTMENT AGAINST TH E SAID DECISION LYING ADMITTED IN THE HONBLE SUPREME COURT. THE R EVENUE HAS NOT DISPUTED THE FACT THAT THE CASE OF M/S. GE PACKAGED POWER INC. (SUPRA) IS APPLICABLE TO THE ISSUE IN CONTROVERSY. OPERATIVE PARA 23 OF THE DECISION RENDERED BY HONBLE DELHI H IGH COURT IS EXTRACTED FOR READY PERUSAL :- FOR THE ABOVE REASONS, THIS COURT FINDS THAT NO IN TEREST IS LEVIABLE ON THE RESPONDENT-ASSESSEES UNDER SECTI ON 234B EVEN THOUGH THEY FILED RETURNS DECLARING NIL INCOME AT THE STAGE OF REASSESSMENT. THE PAYERS WER E OBLIGED TO DETERMINE WHETHER THE ASSESSES WERE LIAB LE TO TAX UNDER SECTION 195(1), AND TO WHAT EXTENT, BY TA KING RECOURSE TO THE MECHANISM PROVIDED IN SECTION 195(2 ) OF THE ACT. THE FAILURE OF THE PAYERS TO DO SO DOES NO T LEAVE THE REVENUE WITHOUT REMEDY; THE PAYER MAY BE REGARDED AN ASSESSEE-IN-DEFAULT UNDER SECTION 201, AND THE CONSEQUENCES DELINEATED IN THAT PROVISION WILL VISIT THE PAYER. THE APPEAL OF THE REVENUE IS ACCORDINGLY DISMISSED WITHOUT ANY ORDER AS TO COSTS. 7. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE, WHEN I SSUE RAISED IN THIS APPEAL BY THE REVENUE IS COVERED IN FAVOUR OF THE ASSESSEE VIDE JUDGMENT RENDERED BY HONBLE DELHI HIGH COURT IN CASE OF M/S. GE PACKAGED POWER INC. (SUPRA), NO CONTRARY VIEW CAN BE TAKEN BY THE TRIBUNAL MERELY ON THE GROUND THAT REV IEW PETITION OF THE REVENUE IS LYING ADMITTED BEFORE THE HONBLE SU PREME COURT IN CASE OF M/S. GE PACKAGED POWER INC. (SUPRA). SO, WE ARE OF THE CONSIDERED VIEW THAT LD. CIT (A) HAS RIGHTLY DE LETED THE ITA NO.4841/DEL./2016 5 ADDITION BY FOLLOWING THE LAW LAID DOWN BY HONBLE DELHI HIGH COURT IN M/S. GE PACKAGED POWER INC. (SUPRA). SO, FINDING NO ILLEGALITY OR PERVERSITY IN THE IMPUGNED ORDER PASS ED BY THE LD. CIT (A), PRESENT APPEAL FILED BY THE REVENUE IS HEREBY DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THIS 30 TH DAY OF APRIL, 2019. SD/- SD/- (R.K. PANDA) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 30 TH DAY OF APRIL, 2019 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-2, NOIDA. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.