DDIT (IT) 3(1), MUMBAI V. HALDOR TOPSOE A/S., NEW DELHI

ITA 6050/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1539 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2016
• Appeal Filed By: Department
• Bench Allotted: L
• Next Hearing Date: 26-10-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 29-09-2014
• Court: TRIBUNAL
• Department Lawyers: JASBIR CHOUHAN
• Keywords: Opportunity of being heard; Principle of natural justice; Rule of consistency

Judgement Text

IN THE INCO ME TAX APPELLATE TRIBUNAL L BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER I.T.A. NO. 6050/M/2014 (ASSESSMENT YEAR: 2009 - 2010 ) I.T.A. NO.6051/M/2014 (ASSESSMENT YEAR: 2010 - 2011) DDIT (IT) - 3(1), R.NO.136, 1 ST FLOOR, SCINDIA HOUSE, N.M. ROAD, BALLARAD ESTATE, MUMBAI 400 038. / VS. M/S. HALDOR TOPSOE A/S, C/O. VIJAY DEEPAK & CO., C.AS., JEVAN VIHA ANNEXE, 3 SANSD MARG, NEW DELHI 110001. ./ PAN : AAACJ2767A ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI JASBIR CHOUHAN, CIT / RESPONDENT BY : NONE / DATE OF HEARING : 28.11.2016 / DATE OF PRONOUNCEMENT : 16 . 12 .2016 / O R D E R PER D. KARUNAKARA RAO, AM: THERE ARE TWO APPEALS UNDER CONSIDERATION. BOTH THESE APPEALS ARE FILED BY THE REVENUE PERTAINING TO THE ASSESSMENT YEAR 2009 - 2010 AND 2010 - 2011. SINCE, THE ISSUES RAISED IN THESE APPEALS ARE IDENTICAL / INTER - CONNECTED, THEREFORE, FOR THE SAKE OF CONVENIENCE THEY ARE CLUBBED, HEARD COMBINEDLY AND DISPOSED OFF IN THIS CONSOLIDATED ORDER. APPEAL WISE ADJUDICATION IS GIVEN IN THE FOLLOWING PARAS OF THIS ORDER. 2. SINCE, THE GROUNDS RAISED IN BOTH THE APPEALS ARE IDENTICAL, THEREFORE, FOR THE SAKE OF REFERENCE AND FOR THE PURPOSE OF ADJUDICATION, GROUNDS RAISED BY THE REVENUE FOR THE AY 2010 - 2011 VIDE APPEAL ITA NO.6051/M/2014 ARE EXTRACTED AS UNDER: - 1. (I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) ERRED IN ACCEPTING THE CLAIM OF THE ASSESSEE REGARDING THE NON - TAXABILIY OF THE AMOUNTS OF RS. 5,22,29,322/ - RECEIVED FROM NRL (NUMALIGARH REFINERY LTD) ON ACCOUNT OF TECHNICAL DO CUMENTATION / ENGINEERING ETC WITHOUT APPRECIATING THE FACT THAT THE FEES RECEIVED ARE SEPARATE AND DISTINCT FROM THE 2 MACHINERY AND EQUIPMENT SUPPLIED, DISREGARDING THE FACT THAT GENESIS OF THE TWO FEES ARE FROM DIFFERENT CONTRACTS UNLIKE AY 1991 - 1992. (II ) ON THE FACTS AND IN THE CIRCUMSTANCES, THE CIT (A) ERRED IN NOT APPRECIATING THE FACTS THAT IN THE AY 2007 - 2008 AND 2008 - 09 THE ITAT IN THE ASSESSEES OWN CASE REMANDED THE SIMILAR ISSUE BACK TO THE AO TO ANALYSE THE TWO SEPARATE AGREEMENTS (ONE FOR SALE OF EQUIPMENTS AND OTHER FOR TECHNICAL DOCUMENTATION / ENGINEERING) TO UNDERSTAND THE NATURE OF TRANSACTION AND HE SHOULD HAVE ALLOWED SIMILAR OPPORTUNITY FOR THIS YEAR. 2. ON THE FACTS AND IN THE CIRCUMSTANCES, THE CIT (A) ERRED IN TREATING THE AMOUNT OF RS. 3,19,01,315/ - RECEIVED FROM GNFC, ON ACCOUNT OF ABANDONMENT OF ASSESSEES PROJECT, AS COMPENSATION AND NOT ROYALTY AND FTS AS ESTABLISHED BY THE AO. 3. THERE IS NONE TO REPRESENT THE CASE OF THE ASSESSEE BEFORE US DESPITE THE ISSUE OF NOTICE AT 7 DI FFERENT DATES. THEREFORE, CONSIDERING THE CONSISTENT NON - APPEARANCE OF THE ASSESSEE OR ITS REPRESENTATIVE, WE PROCEED TO ADJUDICATE THESE APPEALS ON MERITS WITH THE HELP OF THE LD DR FOR THE REVENUE AND THE RELEVANT MATERIAL ON RECORD. 4. DURING THE PROCE EDINGS BEFORE US, LD DR FOR THE REVENUE DEFENDED THE ORDER OF THE ASSESSING OFFICER AND RELIED HEAVILY ON THE ARGUMENTATIVE GROUNDS RAISED BY THE REVENUE FOR BOTH THE AYS. EVENTUALLY, BRINGING OUR ATTENTION TO GROUND NO.1(II), LD DR SUBMITTED THAT THE CIT (A) GRANTED RELIEF TO THE ASSESSEE RELYING ON THE ORDERS OF THE TRIBUNAL FOR THE AYS 2007 - 08 AND 2008 - 09. FURTHER, LD DR BROUGHT OUR ATTENTION TO THE TRIBUNALS ORDER FOR THE AY 2008 - 2009 VIDE ITA NO.8364/M/2010 AND ITA NO.7008/M/2011 [TS - 5446 - ITAT - 2013 (MUMBAI) - O], DATED 5.4.2013 AND SUBMITTED THAT THE MATTERS RAISED IN THE SAID APPEALS FOR THE AYS 2007 - 08 AND 2008 - 09 WERE REMANDED TO THE FILE OF THE AO AS PER THE DISCUSSION GIVEN IN PARA 6 OF THE SAID TRIBUNALS ORDER (SUPRA). LD DR FURTHER MENTIONED TH AT THERE IS NO CLARITY ABOUT THE ABSENCE OF CROSS APPEALS. 5. AFTER HEARING THE LD DR AND ON PERUSAL OF THE GROUNDS RAISED IN THE PRESENT APPEALS AND COMPARING THE SAME WITH THAT OF THE ISSUES REMANDED BY THE TRIBUNAL TO THE FILE OF THE AO, WE FIND, PARAS 6 & 7 OF THE SAID TRIBUNALS ORDER ARE RELEVANT AND THE SAME ARE EXTRACTED AS UNDER: - 6. WE HAVE HEARD THE LD DR AS WELL AS THE LD AR OF THE ASSESSEE AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE FACTS ARE IDENTICAL TO THE FACTS FOR THE AY 2007 - 20 08. WE HAVE DECIDED THE IDENTICAL ISSUE IN THE APPEAL OF THE ASSESSEE FOR THE AY 2007 - 2008. ACCORDINGLY, WE SET ASIDE THE IMPUGNED ORDER OF THE CIT (A) AND REMAND THE MATTER TO THE RECORD OF THE ASSESSING OFFICER ON THE IDENTICAL TERMS AS FOR THE ASSESSM ENT YEAR 2007 - 08. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE AS WELL AS THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. 3 6. FROM THE ABOVE, IT IS EVIDENT THAT CONSIDERING THE COMPARABILITY OF THE ISSUES, THE TRIBUNAL HAS ALREADY REMANDED THE ISSUES TO THE FILE OF THE AO AS PER THE DISCUSSION GIVEN ABOVE. CONSIDERING COMMONALITY OF THE ISSUES INVOLVED AS WELL AS FOLLOWING THE PRINCIPLE OF CONSISTENCY, WE ARE OF THE OPINION, DESPITE THE ABSENCE OF THE ASSESSEE OR ITS AUTHORIZED REPRESENTATIVE, THE IS SUES RAISED IN BOTH THE APPEALS SHOULD BE REMANDED TO THE FILE OF THE AO WITH IDENTICAL DIRECTIONS. WE ORDER ACCORDINGLY. AO SHALL GRANT A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS PER THE SET PRINCIPLES OF NATURAL JUSTICE. THUS, ALL THE GROUNDS RAISED BY THE REVENUE IN BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOU NCED IN THE OPEN COURT ON 1 6 T H DECEMBER, 2016. S D / - S D / - ( PAWAN SINGH ) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 16.12 .2016 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI