British Gas India Pvt. Ltd., New Delhi V. ACIT, Gurgaon

ITA 5314/DEL/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58868 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 05-03-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 26-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Transfer pricing
• Section: 92C

Judgement Text

ITA 5314/DEL/2010 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `A NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER I.T.A.NO.5314/DEL/2010 ASSESSMENT YEAR : 2006-07 BG INDIA ENERGY PRIVATE LIMITED, VS ASSTT. COMMIS SIONER OF INCOME TAX, FORMERLY KNOWN AS BRITISH GAS GURGAON C IRCLE, GURGAON, 5 TH FLOOR, INDIA PRIVATE LIMITED, H SIIDC BUILDING, VANIJYA NIKUNJ, 7 TH FLOOR, WORLD TRADE TOWER, UDYOG VIH AR-PHASE V, BARAKHAMBA LANE, GURGAON, HARYANA. CONNAUGHT PLACE, NEW DELHI. (PAN AAACB7268C) (APPELLANT) (RESPONDENT) APPELLANT BY: S/SHRI ARIJIT CHAKRAVORTHY, MANOMET DALAL RESPONDENT BY : SHRI PIYUSH JAIN, CIT DR O R D E R PER CHANDRA MOHAN GARG, JUDICIAL MEMBER THIS IS AN APPEAL BY THE ASSESSEE, PREFERRED AGAINS T THE ORDER OF DISPUTE RESOLUTION PANEL (HEREINAFTER REFERRED TO A S DRP) DATED 31.8.2010 UNDER SECTION 144C OF THE INCOME TAX ACT, 1961 (HER EINAFTER THE ACT) DISMISSING THE OBJECTIONS OF THE ASSESSEE TO THE DR AFT ASSESSMENT ORDER DATED 29.1.2010 OF THE ASSTT. COMMISSIONER OF INCOM E TAX, GURGAON CIRCLE- 1, GURGAON. ITA 5314/DEL/2010 2 2. THE APPELLANT/ASSESSEE HAS SUBMITTED WRITTEN OBJ ECTIONS RELATING TO TRANSFER PRICING MATTERS BEFORE THE DRP. ON PERUSA L OF THE RECORD AND AFTER CAREFUL CONSIDERATION OF THE ARGUMENTS OF BOTH THE PARTIES, WE FIND THAT THE ASSESSEE SUBMITTED TOTAL EIGHT GROUNDS BEFORE THE D RP AND AGAIN THESE ARE SUBMITTED BEFORE US WITH SOME REQUIRED MODIFICATION S IN THIS APPEAL. 3. ON PERUSAL OF THE IMPUGNED ORDER OF THE DRP DATE D 31.8.2010, IT IS VERY MUCH CLEAR THAT THE DRP DID NOT ADJUDICATE ALL THE OBJECTIONS/GROUNDS RAISED BEFORE IT BY THE ASSESSEE BUT PASSED A SHORT ORDER DEALING WITH THE LAST GROUND UNDER SECTION 92C OF THE ACT. 4. DURING THE ARGUMENTS BEFORE US, LD. COUNSEL APPE ARING FOR THE ASSESSEE FORCEFULLY ADVANCED THIS CONTENTION THAT T HE IMPUGNED ORDER PASSED BY THE DRP WAS OF CRYPTIC NATURE, PASSED WITHOUT AD JUDICATION OF ALL THE OBJECTIONS AND GROUNDS SUBMITTED BY THE ASSESSEE BE FORE IT. THE LD. DR APPEARING FOR THE REVENUE SUPPORTED THE ORDER OF TH E DRP. 5. IN THIS REGARD, THE LD. COUNSEL OF AR HAS MADE R EFERENCE TO THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT O F DELHI IN THE CASE OF VODAFONE ESSAR LTD. VS DISPUTE RESOLUTION PANEL-II REPORTED IN 240 CTR 263 (DELHI) WHEREIN IT HAS BEEN HELD THAT WHEN A QUASI-JUDICIA L AUTHORITY LIKE THE DRP DEALS WITH A LIS U/S 144C OF THE ACT, THEN, IT IS OBLIGATORY ON ITS PART TO ASCRIBE COGENT AND GERMANE REASONS AS THE SAME I S HEART AND SOUL OF THE ITA 5314/DEL/2010 3 MATTER AND ALSO FACILITATES APPRECIATION WHEN ORDER IS CALLED IN QUESTION BEFORE SUPERIOR OR APPELLATE FORUM. 6. ON THE OTHER HAND, LD. CIT, DR VEHEMENTLY OBJECT ED TO SUCH PLEA OF THE LEARNED A.R. AND POINTED OUT THAT ALL GROUNDS A ND OBJECTIONS HAVE BEEN DECIDED TOGETHER AS THEY WERE MIXED ON FACTS AND LA W POINTS, HENCE, THE ORDER OF THE LD. DRP IS JUSTIFIED AND PROPER IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 7. AS THE DETAILED AND PROPER FINDINGS OF THE DRP A RE NOT BEFORE US, THEREFORE, WE ARE OF THE OPINION THAT WITHOUT DEALI NG WITH THE GROUNDS SUBMITTED BEFORE US, THE MATTER DESERVES TO BE REMI TTED BACK TO THE DRP FOR PROPER ADJUDICATION ON ALL THE OBJECTIONS AND GROUN DS RAISED BY THE ASSESSEE, AFTER FRESH HEARING OF BOTH THE PARTIES DELIVERING A SPEAKING ELABORATE ORDER AS PER REQUIREMENT OF LAW AND PROCEDURE ACCEPTED BY THE COURTS AND ALSO BY THE AUTHORITIES WORKING AS QUASI-JUDICIAL FUNCTIONA RIES. 8. IN THE LIGHT OF ABOVE DISCUSSION, THE APPEAL IS ALLOWED AND THE MATTER IS REMITTED BACK FOR FRESH ADJUDICATION WITH ABOVE DIRECTIONS TO THE DRP. ORDER PRONOUNCED IN THE OPEN COURT ON 16.3.2012. SD/- SD/- (G.D. AGRAWAL) (CHANDRA MOHAN GAR G) VICE PRESIDENT JUDICIAL MEMBER DT. 16TH MARCH, 2012 GS ITA 5314/DEL/2010 4 COPY FORWARDED TO:- 1. BRITISH GAS INDIA PVT. LTD., NEW DELHI. 2. ACIT, GURGAON CIRCLE, GURGAON. 3. CIT(A) 4. CIT 5. DR BY ORDER ASSTT. REGISTRAR