Aviva International Holdings Ltd, Mumbai V. DCIT, Circle-1(1)(1),International Taxation, New Delhi

ITA 5650/DEL/2017

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 6299 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-12-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 03-09-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RADHA KATYAL NARAN G
• Keywords: Capital Gains
• Section: 234B

Judgement Text

1 ITA Nos.5588 & 5650/Del/2017 & C.O No. 89/Del/2019 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI “D” BENCH: NEW DELHI (THROUGH VIDEO CONFERENCING) BEFORE SHRI N. K. BILLAIYA, ACCOUNTANT MEMBER & SHRI C. N. PRASAD, JUDICIAL MEMBER ITA No.5650/Del/2017 [Assessment Year : 2009-10] & Aviva International Holdings Ltd. C/o. Dhruva Advisors LLP 1101 & 1102, 11 th Floor, Tower-2B, One India bulls Centre, 841, Senapati Bapat Marg, Elphinstone Road (West), Mumbai, AALCAB572D vs DCIT Circle -1(1)(1), Room No. 409, E-2 Block, Pratyaksh Kar Bhawan, Civic Centre, New Delhi APPELLANT RESPONDENT C.O No.89/Del/2019 [In ITA No. 5588/Del/2017 (A.Y 2009-10] Aviva International Holdings Ltd. ST Helens, 1, Undershaft, EC3P 3DQ, London AALCAB572D vs DCIT Circle -1(1)(1), Room No. 409, E-2 Block, Pratyaksh Kar Bhawan, Civic Centre, New Delhi APPELLANT RESPONDENT ITA No.5588/Del/2017 [Assessment Year : 2009-10] DCIT Circle -1(1)(1), Room No. 409, E-2 Block, Pratyaksh Kar Bhawan, Civic Centre, New Delhi vs Aviva International Holdings Ltd. ST Helens, 1, Undershaft, EC3P 3DQ, London AALCAB572D APPELLANT RESPONDENT Appellant by Shri Abhishek Mundada, CA Respondent by Ms. RAdha Katyal Narang, Sr.DR 2 ITA Nos.5588 & 5650/Del/2017 & C.O No. 89/Del/2019 Date of Hearing 16.12.2021 Date of Pronouncement 16.12.2021 ORDER PER C. N. PRASAD, JM : These appeals filed by the assessee and Revenue and Cross Objection filed by the assessee pertaining to Assessment Year 2009- 10 against the orders of the Ld.CIT(A)-42 dated 09/06/2017. 2. At the outset the Ld. Counsel for the assessee submitted that the assessee desire to withdraw its appeal in ITA No. 5650/Del/2017 and the Cross Objection No. 89/Del/2019, in the appeal filed by the Revenue in ITA No. 5588/Del/2017 for the Assessment Year 2009-10, as the dispute in appeal was settled with Commissioner of Income Tax (International Taxation-1, New Delhi) in terms of the provisions of taxation laws (Amendment) Act, 2021 (No. 34 of 2021 notified of August 13 th 2021) read with Income Tax (31 st Amendment) Rules 2021 by the Ministry of Finance Republic of India. 3. Ld. DR has no objection in assessee withdrawing its appeal and Cross Objection. 3 ITA Nos.5588 & 5650/Del/2017 & C.O No. 89/Del/2019 4. We have heard the rival contentions perused letter filed by the assessee dated 2 nd December 2021. Assessee in its letter dated 2 nd December, 2021 stated the following reason for its withdrawal of appeal and Cross Objection for Assessment Year 2009-10. “This is in connection with the captioned appeal and cross objection filed by the Company before the Hon'ble Members of ITAT Delhi - 'D' Bench for AY 2009-10. Copy of Form No 36 and Form No 36A filed for AY 2009-10 has been enclosed as Annexure 1 and Annexure 1A respectively. In this relation, the Company, wishes to state as under: • The said appeal has been filed by the Appellant against the order of the Commissioner of Income Tax (Appeals) fCIT(A)] dated June 9, 2017, whereby the Hon'ble CIT(A) upheld the tax liability on the capital gains arising in the hands of the Company out of the indirect transfer of shares of the Indian Company in AY 2009-10, as per the Assessment Order dated January 25, 2017 ('relevant order'). Copy of the said Order is enclosed as Annexure 2. • Vide the said order, the CIT(A) also allowed the Company to claim the credit of taxes deducted at source by the deductor and deleted the consequential levy of interest under section 234B of the Act, as a result of which the department had also preferred an appeal before the ITAT, Delhi, The Company has filed the cross objections against the department’s appeal' vide ITA No, 5588/Del/2017. » The aforesaid appeals are pending for disposal before your good self and is scheduled for hearing before your good self on December 15, 2021, • In this regard, the Company draws reference to the recently enacted the Taxation Laws (Amendment) Act, 2021 (No. 34 of 2021,) notified on August 13, 2021) read with Income Tax (31st Amendment) Rules, 2021 (‘the Rules’) by the Ministry of Finance, Republic of India, 4 ITA Nos.5588 & 5650/Del/2017 & C.O No. 89/Del/2019 wherein relief has been granted inter-alia in respect of any transfer of proceedings in respect of any transfer of shares of foreign entity (deriving substantial value from underlying investment in Indian entities), made on or before May 28, 2012, subject to filing of Undertaking in Form No 1 and fulfilling other conditions prescribed therein. • The Company has claimed the said relief granted vide the Taxation Laws (Amendment) Act, 2021 and accordingly, submitted the Undertaking in Form No, 1 (the 'Undertaking') along with the prescribed annexures and documents as prescribed therein before the Commissioner of Income Tax (International Taxation)-1, New Delhi on November 12, 2021. Copy of the said Undertaking is enclosed as Annexure 3. • Subsequently, the Commissioner of Income Tax (International Taxation, New Delhi has accepted the said Undertaking and granted a certificate to that effect vide Form No. 2. Copy of the said certificate dated November 26, 2021 is attached as Annexure 4. • Per the Rule 11UE(2) read with Rule 11UF(3) of the Rules, the Appellant is required to irrevocably withdraw terminate, or discontinue all the appeals against the relevant order and give intimation to this effect by filing Form No 3, within 60 days from the date of issue of Form No. 2. Accordingly, the Company desires to irrevocably, on a without prejudice basis, withdraw / discontinue and not further purse, the appeal filed (ITA No. 56501 Del 12017) and the cross objections filed against the department's appeal (C.O. No, 89 / Dei I 2019), by the Company, before your good self, so as to comply with the conditions prescribed under Rule 11UE of the Income Tax (31 s1 Amendment) Rules, 2021 to the Taxation Laws (Amendment) Act, 2021.” 5. As could be seen from above letter relief has been granted to assessee in respect of indirect transfer proceedings for the transfer 5 ITA Nos.5588 & 5650/Del/2017 & C.O No. 89/Del/2019 of share of foreign entity (deriving substantial value from underlying investment in Indian Entities) made on or before May 28 th 2012 and fulfilling other conditions prescribed therein. The undertaking of the assessee was accepted by the Commissioner of Income Tax Appeals (International Taxation-1, New Delhi) and the assessee decided to withdraw its appeal. 6. Considering the request of the assessee and the reasons stated in its letter, we permit assessee to withdraw its appeal and the Cross Objection filed in Revenue’s appeal in ITA No. 5588/Del/2017. 7. Since, we have permitted to withdraw the assessee its appeal and Cross Objection, we are of the view that the Revenue’s appeal will become infructuous. Therefore, the Revenue’s appeal is dismissed as infructuous. 8. We make it clear that in the event of the assessee’s claim rejected/not accepted by the Revenue for any reason liberty is given to the assessee and the Revenue to file Miscellaneous Applications 6 ITA Nos.5588 & 5650/Del/2017 & C.O No. 89/Del/2019 for recall of the appeals and the Cross Objection. With these observations, these appeals and Cross Objection are dismissed. 9. In result, appeal and Cross Objection of the assessee are dismissed as withdrawn and Revenue’s appeal is dismissed as infructuous. Above decision was pronounced on conclusion of Virtual Hearing in the presence of both the parties on 16th December, 2021. Sd/- Sd/- (N. K. BILLAIYA) (C. N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER 16/12/2021 *R. N* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI