M/s Bangla Entertainment Pvt. Ltd., Mumbai V. PCIT, CIR-3, KOLKATA, Kolkata

ITA 535/KOL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1640 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 01-11-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 28-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: Transfer pricing; International transaction
• Section: 92B; 92E; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA C BENCH, KOLKATA [BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER & SRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER] I.T.A. NO. 535/KOL/2016 ASSESSMENT YEAR: 2011-12 M/S BANGLA ENTERTAINMENT PRIVATE LIMITED....APPELLANT 4 TH FLOOR, INTERFACE 7, OFF MALAD LIND ROAD, MALAD (W), MUMBAI 400 064 [PAN : AADCB 0467 E] PRINCIPAL COMMISSIONER OF INCOME-TAX RANGE-3...RESPONDENT AAYAKAR BHAWAN 5 TH FLOOR KOLKATA 700 069 APPEARANCES BY: SHRI MIRAJ D. SHAH, AR, APPEARING ON BEHALF OF THE ASSESSEE. MR. DAVID Z. CHAWNGTHU, ADDITIONAL CIT, SR. DR, APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : AUGUST 08, 2017 DATE OF PRONOUNCING THE ORDER : AUGUST 23, 2017 O R D E R PER J. SUDHAKAR REDDY :- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. PRINCIPAL COMMISSIONER OF INCOME TAX (APPEALS)-3, KOLKATA (HEREINAFTER THE LD. PR. CIT), DT. 22/01/2016, PASSED U/S 263 OF THE INCOME TAX ACT, 1961 (THE ACT), FOR THE ASSESSMENT YEAR 2011-12. 2. THE CONCLUSION OF THE LD. PR. CIT, IN HIS ORDER U/S 263 OF THE ACT, HAS HELD AS FOLLOWS:- 8. IN VIEW OF THE ABOVE, I HOLD THAT THERE WAS NO INTERNATIONAL TRANSACTION AS DEFINED IN SECTION-90 2B OF THE I.T. ACT, 1961 AND THEREFORE, THERE WAS NO REQUIREMENT FOR 2 I.T.A. NO. 535/KOL/2016 ASSESSMENT YEAR: 2011-12 M/S BANGLA ENTERTAINMENT PRIVATE LIMITED FILING FORM NO. 3CEB. CONSEQUENTLY, I HOLD THAT THE DUE DATE FOR FILING OF RETURN FOR THE ASSESSMENT YEAR 2011-12 WAS 30.09.2011. THE ASSESSING OFFICER IS DIRECTED TO PASS CONSEQUENTIAL ORDER IN VIEW OF THE DIRECTION AND FINDINGS, AFTER GIVING OPPORTUNITY TO THE ASSESSEE. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LEARNED PR. CIT HAS COMMITTED AN ERROR IN CONFUSING THE ATTACHMENT TO ANNEXURE 2 FORM NUMBER 3CEB AT COLUMN 13 WITH NOTE 2. HE POINTED OUT THAT THE ASSESSEE HAD ENTERED INTO AN INTERNATIONAL TRANSACTION DURING THE PREVIOUS YEAR AND FILED A REPORT IN FORM NO. 3CEB AS REQUIRED UNDER SECTION 92E OF THE INCOME TAX ACT, 1961. HE SUBMITTED THAT IN THE SUBSEQUENT YEAR ON THE VERY SAME FACTS AND CONSEQUENT TO THE ASSESSEE FILING A SIMILAR REPORT ON FORM NUMBER 3CEB, THE ASSESSING OFFICER REFERRED THE TRANSACTION TO THE TPO AND THE TPO PASSED AN ORDER UNDER SECTION 92CA(3) OF THE ACT ON 03/12/2015. HE FURTHER SUBMITTED THAT REIMBURSEMENT OF EXPENDITURE TRANSACTION WITH AE IS COVERED BY THE DEFINITION OF INTERNATIONAL TRANSACTION AS PER SECTION 92B OF THE ACT AND FOR THIS PROPOSITION HE RELIED ON THE FOLLOWING CASE LAWS:- M/S STREAM INTERNATIONAL SERVICE PVT. LTD. VS. ASST DIT (ITA NO. 8997/MUM/2010) DATED 11 JANUARY, 2013 3 I.T.A. NO. 535/KOL/2016 ASSESSMENT YEAR: 2011-12 M/S BANGLA ENTERTAINMENT PRIVATE LIMITED CIT VS. CUSHMAN AND WAKEFIELD (INDIA) PVT. LTD. [367 ITR 730] DATED 23 MAY 2014 (DEL HC) HENCE, HE SUBMITTED THAT THE CONCLUSION DRAWN BY THE LEARNED PR. CIT WAS ERRONEOUS AND NEEDS TO BE VACATED. 4. THE LEARNER DR, ON THE OTHER HAND, SUPPORTED THE ORDER OF THE LEARNED PR. CIT BUT COULD NOT POINT OUT ANY FACTUAL ERROR IN THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE. 5. AFTER HEARING LEVEL CONTENTIONS, WE FIND THAT THE ASSESSEE HAD DECLARED THE TRANSACTION I.E. REIMBURSEMENT PAID/PAYABLE EXPENSES PAID BY THE AE ON BEHALF OF THE ASSESSEE AS AN INTERNATIONAL TRANSACTION. IN THE ANNEXURE TO FORM NO. 3CED AT SERIAL NUMBER 13, ANNEXURE-2. THIS FACT WAS MENTIONED. THE LEARNED PR. CIT CONFUSED THE SAME WITH NOTE 2, WHICH REFERRED TO THE ISSUE OF SHARES AT A PREMIUM. A SIMILAR TRANSACTION WAS CONSIDERED AS AN INTERNATIONAL TRANSACTION BY THE TPO FOR THE ASSESSMENT YEAR 2012-13. ON THESE FACTS, IT IS CLEAR THAT THE LEARNED PR. CIT HAS COMMITTED AN ERROR IN COMING TO THE CONCLUSION THAT THE ASSESSEE HAD NO INTERNATIONAL TRANSACTION DURING THE YEAR AND CONSEQUENTLY THE DUE DATE OF FILING OF THE RETURN OF INCOME WAS 30/09/2011. THE ASSESSEE HAD ENTERED INTO AN INTERNATIONAL TRANSACTION DURING THE YEAR AND HENCE THE DUE DATE OF FILING OF THE RETURN WAS 30/11/2011. AS THE ASSESSEE E-FILED THE RETURN ON 28/11/2011, THE RETURN WAS FILED WITHIN 4 I.T.A. NO. 535/KOL/2016 ASSESSMENT YEAR: 2011-12 M/S BANGLA ENTERTAINMENT PRIVATE LIMITED TIME. HENCE THE ORDER OF THE LEARNED PR. CIT, WAS WRONG ON FACTS. HENCE WE QUASH THE SAME AND ALLOW THE APPEAL OF THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. KOLKATA, THE 23 RD DAY OF AUGUST, 2017. SD/- SD/- [S.S. VISWANETHRA RAVI] [ J. SUDHAKAR REDDY ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 23.08.2017 {SC SPS} COPY OF THE ORDER FORWARDED TO: 1. M/S BANGLA ENTERTAINMENT PRIVATE LIMITED 4 TH FLOOR, INTERFACE 7, OFF MALAD LIND ROAD, MALAD (W), MUMBAI 400 064 2. PRINCIPAL COMMISSIONER OF INCOME-TAX RANGE-3 AAYAKAR BHAWAN 5 TH FLOOR KOLKATA 700 069 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY HEAD OF OFFICE/ D.D.O. ITAT, KOLKATA BENCHES