Appeal details
Counselvise Citation
[2012] 140 COUNSELVISE.COM (IT) 58506 (ITAT-DELHI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 1 month(s) 20 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
13-01-2012
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
B
Next Hearing Date
05-01-2012
Assessment Year
2006-2007
Appeal Filed On
23-11-2010
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH `B : NEW DELHI) BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO.5187/DEL./2010 (ASSESSMENT YEAR : 2006-07) M/S CONSULTING ENGINEERING SERVICES (INDIA) PVT. L TD., VS. ADDL.CIT, RANGE 3, 57, MANJUSHA BUILDING, NEW DELHI. NEHRU PLACE, 5 TH FLOOR, NEW DELHI 110 019. (PAN/GIR NO.AAACC5110G) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI V.P. GUPTA/BASANT KUMAR/AMAR MIT TAL REVENUE BY : SHRI ROHIT GARG, SR.DR ORDER PER U.B.S. BEDI, J.M. THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE ADDL.CIT, NEW DELHI DATED 24.9.2010 PASSED U/S 143(3) READ WITH S ECTION 144C OF THE I.T. ACT, 1961, RELEVANT TO ASSESSMENT YEAR 2006-07, WHEREBY FOLLOW ING GROUNDS HAVE BEEN RAISED: 1. (A) THAT THE ORDER PASSED BY THE DISPUTE RESOLU TION PANEL DATED 20.07.2010 UNDER SECTION 144C OF THE ACT IS BAD AS SAME HAS BEEN PASSED WITHOUT PROPERLY CONSIDERING THE FACTS AND SUBMISSI ONS OF THE APPELLANT. (B) THAT THE ORDER PASSED BY THE ADDL.CIT PURSUANT TO THE ORDER OF TPO AND DIRECTIONS OF DISPUTE RESOLUTION PANEL IS E RRONEOUS AND BAD IN LAW AS SAME HAS BEEN PASSED WITHOUT PROPERLY CONSID ERING THE FACTS AND SUBMISSIONS OF THE APPELLANT AND PARTICULARLY THE D IRECTIONS OF DRP. 2. THE ASSESSING OFFICER HAS ERRED ON FACTS AND IN LAW IN MAKING DISALLOWANCE OF RS.5,11,412/- ON ACCOUNT OF DEPRECI ATION CLAIMED ON COMPUTER PERIPHERALS @ 60% WHICH ARE PART AND PARCEL OF THE COMPUTERS. HE HAS FURTHER ERRED IN NOT FOLLOWING THE DIRECTION OF DISPUTE RES OLUTION PANEL IN THIS REGARD. I.T.A. NO.5187/DEL./2010 (A.Y. : 2006-07) 2 3. THAT THE ORDER PASSED BY THE ASSESSING OFFICER M AKING ADDITION OF RS.1,90,37,209/- ON ACCOUNT OF INTERNATIONAL TRANSA CTIONS PURSUANT TO ORDER OF TPO AND DRP IS BAD AS SAME HAS BEEN MADE WITHOUT CONSID ERING THE FACTS AND SUBMISSIONS OF THE APPELLANT COMPANY AND BY MERELY FOLLOWING DETERMINATION MADE BY TPO. 4. THAT THE DRP ERRED IN PASSING THE ORDER DATED 20 .07.2010 OBSERVING IN REGARD TO ADJUSTMENT DETERMINED BY TPO VIDE HIS ORD ER DATED 20.10.2009 THAT SUBMISSIONS OF THE APPELLANT WERE SUFFICIENTLY ANSW ERED BY TPO WHEREAS DRP WAS DUTY BOUND TO LOOK INTO THE FACTS AND CONTENTIO NS OF THE APPELLANT COMPANY AND GIVE NECESSARY DIRECTIONS TO THE ASSESSING OFFI CER. THE DRP PARTICULARLY FAILED TO APPRECIATE THAT:- (A) THE TPO HAD NOT CORRECTLY APPRECIATED THE FACTS AND SUBMISSIONS OF THE APPELLANT COMPANY. (B) THE TPO HAD DETERMINED ARMS LENGTH PRICE FOLLO WING TNMM METHOD BY WRONGLY REJECTING THE METHOD ADOPTED BY T HE APPELLANT I.E. COST PLUS METHOD. (C) HE HAD ALSO WRONGLY ADOPTED THE COMPARABLE I.E. TCE CONSULTING ENGINEERS LTD. WHICH COMPANY WAS NOT COMPARABLE WIT H THE APPELLANT COMPANY FOR VARIOUS REASONS; (D) THE TPO HAD ALSO WRONGLY COMPUTED OPERATIONAL P ROFIT MARGIN OF THE APPELLANT COMPANY AS WELL AS OF M/S TCE CONSULT ING ENGINEERS LTD. (E) THE TPO HAD ALSO NOT ALLOWED MARGIN OF 5% ALLOW ABLE IN TERMS OF SECOND PROVISO TO SECTION 92C(2) OF THE ACT. 5. THAT DRP/ASSESSING OFFICER ALSO ERRED NOT EVEN C ORRECTING THE CALCULATION MISTAKES POINTED OUT BY THE APPELLANT BEFORE THE DR P IN DETERMINATION OF AMOUNT TO BE ADDED EVEN ON THE BASIS OF TPO. 6. THAT THE ASSESSING OFFICER ERRED IN INITIATING P ENALTY PROCEEDINGS FOR CONCEALMENT OF INCOME U/S 271(1)(C) OF THE ACT IN T HE FACTS AND CIRCUMSTANCES OF I.T.A. NO.5187/DEL./2010 (A.Y. : 2006-07) 3 THE APPELLANT COMPANY AND PARTICULARLY WITH REFEREN CE TO ADDITION/DISALLOWANCES OFFERED BY THE APPELLANT VIDE REVISED RETURN FILED ON 31/03/2008 OBSERVING THAT THE RETURN WAS FILED AFTER THE ISSUE OF NOTICE UNDER SE CTION 143(2) OF THE ACT WITHOUT APPRECIATING THAT THE REVISED RETURN WAS FILED WITH IN THE TIME LIMIT PROVIDED UNDER THE ACT AND ADDITIONS MADE THEREIN WERE ON ACCOUNT OF FIGURES INADVERTENTLY LEFT OUT IN EARLIER RETURNS. HE ALSO FAILED TO TAKE INT O ACCOUNT DIRECTIONS OF DRP IN THIS REGARD. 7. THAT THE APPELLANT CRAVES THE LEAVE TO ADD, AMEN D, WITHDRAW, MODIFY OR VARY ANY OF THE GROUNDS RAISED ABOVE ON OR BEFORE T HE DATE OF HEARING. 2. AT THE VERY OUTSET, LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT DISPUTE RESOLUTION PANEL HAS PASSED A VERY BRIEF ORDER WIT HOUT CONSIDERING THE RELEVANT FACTS, MATERIAL ON RECORD, VOLUMINOUS DOCUMENTARY EVIDENCE FILED BEFORE IT AND ARGUMENTS ADVANCED AND THE ADDL.CIT PASSED THE ORDER U/S 143 (3) R.W.S. 144C OF THE ACT BASED ON THE DIRECTION OF THE DRP U/S 144C OF THE ACT AND BY CITING FOLLOWING DECISIONS, IN WHICH FACTS ARE STATED TO BE IDENTICAL WITH THAT OF THE ASSESSEES CASE:- 1. INSILCO LIMITED VS. DCIT, I.T.A. NO.5781/DEL./20 10 DECIDED ON 08.06.2011. 2. GAP INTERNATIONAL SOURCING INDIA (P) LTD. VS. DC IT, 135 TTJ (DEL.) 627. 3. VODAFONE ESSAR LTD. VS. DISPUTE RESOLUTION PANEL , 240 CTR (DEL.) 263. 4. ACTIS ADVISERS (P) LTD VS. DCIT, 138 TTJ (DEL.) 312. 5. CIT VS. BSES YAMUNA POWERS LTD., 2010 TMI 78240- DELHI HIGH COURT. 6. CIT VS. ORIENT CERAMIC & INDUSTRIES LTD., 56 DTR (DEL.)397. 3. IT WAS PLEADED FOR SETTING ASIDE THE ORDERS, REM ITTING THE MATTER BACK TO DRP FOR RECONSIDERATION DE NOVO. THE COPIES OF THE DECISIO NS COMPILED OF ENTIRE CASE LAW LIST GIVEN BY THE ASSESSEE IN A SMALL PAPER BOOK WAS HAN DED OVER TO THE LD.DR ON 3 RD JANUARY, 2012 WITH THE DIRECTION THAT HE SHOULD EX AMINE THESE DECISIONS VIS--VIS THE I.T.A. NO.5187/DEL./2010 (A.Y. : 2006-07) 4 CASE OF THE ASSESSEE AND STATE HIS OBJECTION, IF AN Y, AT THE TIME OF HEARING ON 5 TH JANUARY, 2012. 4. CONSEQUENT UPON SUCH DIRECTION, ON NEXT DATE I .E. 05.1.2012, LD.DR SUBMITTED THAT THOUGH THE ORDER IS VERY BRIEF YET EACH AND EV ERY ASPECT HAS BEEN CONSIDERED BY THE DRP. SO, THERE IS NO POINT IN REMITTING THE CASE B ACK TO DRP FOR CONSIDERATION AND THE MATTER BE DECIDED ON MERIT. 5. LD. COUNSEL FOR THE ASSESSEE, IN ORDER TO COUNTE R THE SUBMISSION OF THE LD.DR HAS SUBMITTED THAT IF THE CASE IN INSILCO LIMITED VS. D CIT, I.T.A. NO.5781/DEL./2010 AT PAGES 1-7 OF THE PAPER BOOK AND GAP INTERNATIONAL SOURCIN G INDIA (P) LTD. VS. DCIT, 135 TTJ(DEL.) 627 AT PAGES 8-11 OF THE PAPER BOOK ARE L OOKED INTO, IT WOULD TRANSPIRE THAT FACTS AND DECISION TAKEN IN THOSE CASES AND THE FAC TS OF THE PRESENT CASE AND ORDER OF DRP PASSED IN THOSE CASES AND THAT OF THE ASSESSEES AR E SIMILAR AND THE MATTER HAS BEEN REMANDED BACK. MOREOVER, IN THE CASE OF VODAFONE ESSAR LTD. VS. DISPUTE RESOLUTION PANEL, 240 CTR (DEL.) 263 AT PAGES 12-13 OF THE PAP ER BOOK, THE HONBLE HIGH COURT ALSO REMITTED THE MATTER BACK FOR RE-CONSIDERATION AND IN CASE, THE MATTER IS RESTORED BACK TO DRP FOR RE-CONSIDERATION. IT WAS THUS PLEADED F OR SETTING ASIDE THE ORDER OF DRP AND RESTORING THE MATTER FOR RE-CONSIDERATION TO IT. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE TPO AS WELL AS DRP AND FIND THAT BRIEF ORDER HAS BEEN PASSED BY T HE DRP AND ADDL.CIT HAS PASSED THE ORDER WHILE CONSIDERING AND APPLYING THE CONCLUSION AS DRAWN BY DRP WHEN THE ENTIRE FACTS AND CIRCUMSTANCES IN THE LIGHT OF DOCUMENTARY EVIDENCE FILED BEFORE DRP HAVE NOT BEEN CONSIDERED APPROPRIATELY. THEREFORE, IN THE I NTEREST OF JUSTICE AND TO HAVE FAIR PLAY IN THE MATTER, WE FIND IT JUST AND APPROPRIATE TO S ET ASIDE THE IMPUGNED ORDER AND RESTORE I.T.A. NO.5187/DEL./2010 (A.Y. : 2006-07) 5 THE MATTER BACK TO DRP TO DECIDE THE CASE OF THE AS SESSEE AFRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE BY PASSING A SPEAKING O RDER. WE HOLD AND DIRECT ACCORDINGLY. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 13./1/201 2. SD/- SD/- (SHAMIM YAHHA) ACCOUNTANT MEMBER (U.B.S. BEDI ) JUDICIAL MEMBER DATED : JANUARY 13, 2012 SKB COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. ADDL.CIT 4. DRP, PANEL 1, NEW DELHI. 5. CIT(ITAT) DEPUTY REGISTRAR, ITAT
