DCIT, New Delhi V. M/s Fluor Daniel India Pvt. Ltd., New Delhi

ITA 5816/DEL/2010

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 69420 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 10 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-11-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 07-11-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 20-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIDHI SRIVASTAVA
• Assessee Lawyers: HIMANSHU SINHA; FAHAD KHALID
• Keywords: Transfer pricing; International transaction; Capital expenditure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH B BB B : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI R.S.SYAL R.S.SYAL R.S.SYAL R.S.SYAL, ,, , ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER AND AND AND AND SHRI SHRI SHRI SHRI RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV, ,, , JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ITA NO ITA NO ITA NO ITA NO. .. .5816 5816 5816 5816/DEL/20 /DEL/20 /DEL/20 /DEL/2010 1010 10 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 200 200 200 2004 44 4- -- -05 0505 05 DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CIRCLE CIRCLE CIRCLE CIRCLE- -- -11(1), 11(1), 11(1), 11(1), NEW DELH NEW DELH NEW DELH NEW DELHI. I.I. I. VS. VS. VS. VS. M/S FLUOR DANIEL INDIA PVT.LTD., M/S FLUOR DANIEL INDIA PVT.LTD., M/S FLUOR DANIEL INDIA PVT.LTD., M/S FLUOR DANIEL INDIA PVT.LTD., C/O DELOITTE HASKINS & SELLS MCT C/O DELOITTE HASKINS & SELLS MCT C/O DELOITTE HASKINS & SELLS MCT C/O DELOITTE HASKINS & SELLS MCT HOUSES, HOUSES, HOUSES, HOUSES, ONE OKHLA CENTRE, BLOCK ONE OKHLA CENTRE, BLOCK ONE OKHLA CENTRE, BLOCK ONE OKHLA CENTRE, BLOCK- -- -A, A,A, A, OKHLA INDUSTRIAL AREA, OKHLA INDUSTRIAL AREA, OKHLA INDUSTRIAL AREA, OKHLA INDUSTRIAL AREA, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 025. 110 025. 110 025. 110 025. PAN : PAN : PAN : PAN : AAACF0927G. AAACF0927G. AAACF0927G. AAACF0927G. (APPELLANT) (RESPONDENT) APPELLANT BY : MS. NIDHI SRIVASTAVA, SR.DR. RESPONDENT BY : SHRI HIMANSHU SINHA, ADVOCATE AND SHRI FAHAD KHALID, CA. ORDER ORDER ORDER ORDER PER R.S.SYAL, AM PER R.S.SYAL, AM PER R.S.SYAL, AM PER R.S.SYAL, AM : : : : THIS APPEAL BY THE REVENUE ARISES OUT OF THE ORDER PASSED BY THE LD. CIT(A) ON 29.10.2010 IN RELATION TO THE ASSESSM ENT YEAR 2004-05. 2. GROUND NO.1 OF THE APPEAL IS GENERAL, WHICH D OES NOT REQUIRE ANY ADJUDICATION. 3. GROUND NOS.2 AND 3 ARE AGAINST THE DELETION OF ADDITION MADE ON ACCOUNT OF TRANSFER PRICING ADJUSTMENT. WHEREAS IN THE SECOND GROUND, THE REVENUE HAS CHALLENGED THE USE OF MULTIPLE YEAR DATA FOR ANALYZING THE RESULT OF INTERNATIONAL TRANSACTION, IN THE OTH ER GROUND, THE REVENUE IS AGGRIEVED AGAINST ACCEPTING THAT NIIT GI S IS NOT COMPARABLE. 4. AT THE VERY OUTSET, THE LEARNED AR SUBMITTE D THAT THE ISSUE IN QUESTION HAS BEEN SETTLED BY THE COMPETENT AUTHORIT Y FOR SETTLEMENT ITA-5816/DEL/2010 2 OF DISPUTE UNDER THE MUTUAL AGREEMENT PROCEDURE OF INDIA-USA DTAC. A COPY OF THE ORDER OF THE AUTHORITY HAS BEEN PLACE D ON RECORD. IT WAS SUBMITTED THAT PURSUANT TO SUCH SETTLEMENT, THE AO HAS GIVEN EFFECT TO SUCH ORDER AND PASSED THE CONSEQUENTIAL ORDER. A CO PY OF SUCH CONSEQUENTIAL ORDER HAS ALSO BEEN PLACED ON RECORD. THE LEARNED DR WAS FAIR ENOUGH TO ACCEPT THE POSITION STATED ON BE HALF OF THE ASSESSEE IN THE LIGHT OF THE RELEVANT DOCUMENTS PLACED ON RE CORD. IN VIEW OF THE SETTLEMENT OF SUCH DISPUTE BY THE COMPETENT AUTHORI TY, THERE REMAINS NOTHING FOR ADJUDICATION OF DISPUTE AT OUR END. WE , THEREFORE, DISMISS THE GROUNDS AS HAVING BECOME INFRUCTUOUS. 5. THE ONLY OTHER ISSUE IS AGAINST THE DELETI ON OF ADDITION OF ` 1,55,27,266 MADE BY THE AO BY TREATING THE PAYMENT FOR SUBLICENSED SOFTWARE AS A CAPITAL EXPENDITURE AND NOT A REVENUE EXPENSE. 6. BOTH THE SIDES ARE IN AGREEMENT THAT IT I S RECURRING ISSUE AND HAS BEEN FINALLY SETTLED BY THE HONBLE HIGH COURT IN EARLIER YEARS IN FAVOUR OF THE ASSESSEE. A COPY OF THE JUDGMENT DATE D 30.11.2009 PASSED BY THE HONBLE DELHI HIGH COURT, DISMISSING THE APPEAL OF THE REVENUE FOR THE EARLIER YEAR ON THE SAME ISSUE, HAS BEEN PLACED ON RECORD. IN VIEW OF THIS PRECEDENT, IT BECOMES APPAR ENT, THAT THE VIEW CANVASSED BY THE LD. CIT(A) ON THIS ISSUE DOES NOT WARRANT ANY INTERFERENCE. THIS GROUND IS NOT ALLOWED. 7. IN THE RESULT, THE APPEAL IS DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 7 TH NOVEMBER, 2013. SD/- SD/- ( (( (RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV) )) ) ( (( (R.S. SYAL R.S. SYAL R.S. SYAL R.S. SYAL) )) ) JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATED : 07.11.2013 VK. ITA-5816/DEL/2010 3 COPY FORWARDED TO: - 1. APPELLANT : DEPUTY COMMISSIONER OF INCOME TA X, DEPUTY COMMISSIONER OF INCOME TAX, DEPUTY COMMISSIONER OF INCOME TAX, DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE CIRCLE CIRCLE CIRCLE- -- -11(1), NEW DELHI. 11(1), NEW DELHI. 11(1), NEW DELHI. 11(1), NEW DELHI. 2. RESPONDENT : M/S FLUOR DANIEL IN M/S FLUOR DANIEL IN M/S FLUOR DANIEL IN M/S FLUOR DANIEL INDIA PVT.LTD., DIA PVT.LTD., DIA PVT.LTD., DIA PVT.LTD., C/O DELOITTE HASKINS & SELLS MCT HOUSES, C/O DELOITTE HASKINS & SELLS MCT HOUSES, C/O DELOITTE HASKINS & SELLS MCT HOUSES, C/O DELOITTE HASKINS & SELLS MCT HOUSES, ONE OKHLA CENTRE, BLOCK ONE OKHLA CENTRE, BLOCK ONE OKHLA CENTRE, BLOCK ONE OKHLA CENTRE, BLOCK- -- -A, A,A, A, OKHLA INDUSTRIAL AREA, NEW DELHI OKHLA INDUSTRIAL AREA, NEW DELHI OKHLA INDUSTRIAL AREA, NEW DELHI OKHLA INDUSTRIAL AREA, NEW DELHI 110 025. 110 025. 110 025. 110 025. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR