M/s Turner International India Pvt. Ltd., New Delhi V. DCIT, New Delhi

ITA 6627/DEL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3498 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: I
• Assessment Year: 2012-2013
• Appeal Filed On: 27-12-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Transfer pricing; International transaction
• Section: 143(3); 92

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH I - 1 , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SH. SUDHANSHU SRIVASTAVA , JM ITA NO. 6627 /DEL/2016 : ASSTT. YEAR : 2012 - 13 TURNER INTERNATIONAL INDIA PVT. LTD., 5 TH FLOOR, RADISSON COMMERCIAL PLAZA, NH - 8, MAHILPALPUR, NEW DELHI - 110037 VS DCIT, CIRCLE - 25(2 ), NEW DELHI (APPELLANT) (RESPONDENT) PAN /GIR NO. AA ACT3821H ASSESSEE BY : SH. KANCHAN KAUSHAL, ADV. REVENUE BY : SH . KUMAR PRANAV , SR. DR DATE OF HEARING : 21 .02 .201 8 DATE OF PRONOUNCE MENT : 22 .02 .201 8 ORDER PER N. K. SAINI, AM : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 30.12.2016 PASSED B Y THE AO U/S 143(3) R.W.S. 144C OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2. DURING THE COURSE OF HEARING, THE LD. SR. DR AT THE VERY OUTSET STATED THAT THE IMPUGNED ORDER HAS BEEN WITHDRAWN BY THE AO VIDE ORDER DATED 14.07.2017 (C OPY OF THE SAID ORDER WAS FURNISHED WHICH IS PLACED ON RECORD). IT WAS FURTHER SUBMITTED THAT THE ASSESSEE FOR THE SAME ASSESSMENT YEAR I.E. ASSESSMENT YEAR 2012 - 13 HAS ALSO FILED ANOTHER APPEAL IN ITA NO. 218/DEL/2017. THEREFORE, THE PRESENT APPEAL IN ITA NO. 6627/DEL/2016 IS INFRUCTUOUS. ITA NO. 6627 /DE L/2016 TURNER INTERNATIONAL INDIA PVT. LTD. 2 3. IN HIS RIVAL SUBMISSIONS, THE LD. COUNSEL FOR THE ASSESSEE COULD NOT CONTROVERT THE AFORESAID CONTENTION OF THE LD. SR. DR. 4. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES AND THE MATERIAL AVAILABLE ON RECO RD, IT IS NOTICED THAT THE DRAFT ASSESSMENT ORDER DATED 30.12.2016 FOR THE ASSESSMENT YEAR 2012 - 13 WAS WITHDRAWN BY THE AO VIDE LETTER DATED 14.07.2017 WRITTEN TO THE PR. OFFICER OF THE ASSESSEE STATING THEREIN AS UNDER: SUB: WITHDRAWAL OF DRAFT ASSESSM ENT ORDER DATED 30.12.2016 FOR A.Y. 2012 - 13 - REG. FROM THE PERUSAL OF RECORDS IT IS SEEN THAT DURING THE YEAR UND ER CONSIDERATION THE ASSESSEE H AD ENTERED INTO I NTERNATIONAL TRANSACTION WITH IT S ASSOCIATED ENTERPRISES. WITH THE PREVIOUS APPROVAL OF PR. C IT, DELHI - 9, NEW DELHI, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 92CA OF THE I.T. ACT, 1961, THE MATTER OF INTERNATIONAL TRANSACTIONS ENTERED INTO BY THE ASSESSEE WITH ITS ASSOCIATED ENTERPRISES WAS REFERRED TO THE TRANSFER PRICING OFFICER FOR DETERMIN ING THE ARM'S LENGTH PRICE. 2. THE ADDITIONAL COMMISSIONER OF INCOME TAX, TRANSFER PRICING OFFICER - 3(2), NEW DELHI HAS PASSED HIS ORDER U/S 92CA (3) OF THE IT. ACT, 1961 DATED 29.01.2016 WHEREIN HE HAS PROPOSED AN ADJUSTMENT OF RS. 61,52,84,260 U/S 92CA(3 ) OF THE IT ACT 1961. ACCORDINGLY THE AO PASS ED DRAFT ASSESSMENT ORDER U/S 143(3) R.W.S. 1 44C OF THE ACT DATED 15.03.2016 RECOMPUTING THE INCOME OF THE ASSESSEE AT RS.67,1L,31,920/ - MAK ING ADDITION OF RS. 61,52,84,260 / - ON ACCOUNT OF TPO ADJOURNMENT U/S 92 CA(3). 4. AGGRIEVED WITH THE SAID DRAFT ASSESSMENT ORDER OF THE AO, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE HON'BLE DISPUTE RESOLUTION PANEL AGAINST THE ITA NO. 6627 /DE L/2016 TURNER INTERNATIONAL INDIA PVT. LTD. 3 ADJUSTMENT OF RS. 6 1 ,52,84,260/ - AS PROPOSED BY THE TPO. THE HON'BLE DRP HAS ISSUED CERTAIN DIRECTI ONS VIDE ORDER U/S 1 44C(5) DATED 05.10.2016. THE SAME WAS FORWARDED TO THE TPO - 3(2)(1), NEW DELHI FOR GIVING EFFECT TO PASS THE FINAL ASSESSMENT ORDER AS THE CASE WAS TIME BARRED ON 31.12.2016. THE TPO VIDE LETTER DATED 28.11.2016, AS PER DIRECTIONS OF THE HON'BLE DRP, REVISED THE EARLIER ADJUSTMENT OF RS. 61,52,84,2607 - TO RS. 35,03,74,731/ - . ACCORDINGLY, - ANOTHER DRAFT ASSESSMENT ORDER DATED 30.12.2016 INCORPORATING TPO ADJUSTMENT OF RS.35,03,74,731/ - HAS BEEN INADVERTENTLY PASSED. 5. THE SAID DRAFT ASSE SSMENT ORDER DATED 23.12.2016 IS HEREBY WITHDRAWN IN VIEW OF THE FOLLOWING FACTS: - I) ONCE THE ASSESSEE GOES TO THE HON'BLE DRP AGAINST THE DRAFT ASSESSMENT ORDER, ANOTHER DRAFT ASSESSMENT ORDER INADVERTENTLY ISSUES BECOMES IRRELEVANT. II) AS PER THE DOC TRINE OF MERGER, THE DRAFT ASSESSMENT ORDER MERGED WITH HON'BLE DRP'S ORDER AND, III) UPON RECEIPT OF THE DIRECTIONS ISSUED BY THE HON'BLE DRP VIDE ORDER U/S 1 44C(5) DATED 5.10.2016, FINAL ASSESSMENT WAS COMPLETED ON 27.12.2016 VIDE ORDER U/S 143(3) R.W.S . I44C OF THE ACT IN CONFORMITY WITH THE SAID DIRECTIONS. IV) AS THE ASSESSEE HAS FILED APPEAL/ OBJECTIONS BEFORE THE HON'BLE DRP AGAINST THE FIRST DRAFT ASSESSMENT ORDER DATED 15.3.2016 THEN SECOND DRAFT ORDER WHICH WAS INADVERTENTLY PASSES BECOMES INFRU CTUOUS. SD/ - (BHARAT G. PATEL) ASSTT. COMMISSIONER OF INCOME TAX CIRCLE - 25(2), NEW DELHI ITA NO. 6627 /DE L/2016 TURNER INTERNATIONAL INDIA PVT. LTD. 4 5. SINCE, THE IMPUGNED ORDER DATED 14.07.2017 IS NOT IN EXISTENCE, THEREFORE, THE APPEAL FILED BY THE ASSESSEE AGAINST THE SAID ORDER BECOMES INFRUCTUOUS. ACCOR DINGLY, THE SAME IS DISMISSED. 6 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED AS INFRUCTUOUS. ( ORDER PRON OUNCED IN THE COURT ON 22 /02 / 2018 ) SD/ - SD/ - ( SUDHANSHU SRIVASTAVA ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 22 /0 2 /2018 *SUBODH* COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR