DCIT 1(3), MUMBAI V. UNILIVER INDUSTRIES P. LTD, MUMBAI

ITA 7590/MUM/2010

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3503 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 9 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-08-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: K
• Next Hearing Date: 11-03-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 03-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N K CHAND
• Keywords: Transfer pricing; International transaction; Capital expenditure
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH K , MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD , JUDICIAL MEMBER IT A NO. 7590 /MUM/20 1 0 : (A.Y : 20 0 3 - 04 ) DCIT - 1(3), MUMBAI ( APPELLANT ) VS. M/S. UNILEVER INDUSTRIES PVT. LTD., 165/166, BACKBAY RECLAMATION, MUMBAI 400 020 (RESPONDENT) PAN : AAACU0791P ASSESSEE BY : SHRI NISHANT THAKKAR & MS. JASMIN AMALSADVALA REVENUE BY : SHRI N.K. CHAND DATE OF HEARING : 03 /0 8 /2016 DATE OF PRONOUNCEMENT : 17 /0 8 /2016 O R D E R PER G.S. PANNU , AM : THE CAPTIONED APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A) - 15 , MUMBAI DATED 04 . 0 8 .20 1 0 , PERTAINING TO THE ASSESSMENT YEAR 20 0 3 - 04 , WHICH IN TURN HAS ARISEN FROM THE ORDER PASSED BY THE ASSESSING OFFICER DATED 2 8 . 0 3 .20 08 UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. IN THIS APPEAL, THE SOLITARY ISSUE IS WITH REGARD TO PENALTY OF RS.55,06,597/ - IMPOSED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE ACT. 2 M/S. UNILEVER INDUSTRIES PVT. LTD. ITA NO. 7590/MUM/2010 3. BRIEFLY PUT, THE RELEVANT F ACTS ARE THAT THE RESPONDENT - ASSESSEE IS A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 AND IS, INTER ALIA , ENGAGED IN THE BUSINESS OF PROVISION OF RESEARCH SERVICES TO THIRD PARTIES. FOR ASSESSMENT YEAR 2003 - 04, IT FILED RETURN OF INCOME DECLARING TOTAL INCOME OF RS.8,31,59,860/ - WHICH WAS SUBJECT TO SCRUTINY ASSESSMENT U/S 143(3) OF THE ACT DATED 24.3.2006 WHEREBY INCOME WAS ASSESSED AT RS.9,83,94,180/ - . SUBSEQUENTLY, THE ASSESSING OFFICER HELD THE ASSESSEE GUILTY OF FURNISHING O F INACCURATE PARTICULARS OF INCOME WITHIN THE MEANING OF SEC. 271(1)(C) OF THE ACT QUA TWO ADDITI ONS MADE TO THE RETURNED INCOME; FIRSTLY, THE CLAIM OF THE ASSESSEE TO TREAT THE EXPENDITURE OF RS.1,30,43,938/ - ON ACCOUNT OF PURCHASED SERVICES AS REVENUE EX PENDITURE WAS DENIED AND INSTEAD IT WAS T REATED AS A CAPITAL EXPENDITURE; SECONDLY, THE ARMS LENGTH PRICE OF INTERNATIONAL TRANSACTION OF RENDERING RESEARCH SERVICES TO ITS ASSOCIATED ENTERPRISES WAS DETERMINED AT A FIGURE HIGHER THAN THE STATED VALUE OF S UCH TRANSACTIONS ENTERED IN THE ACCOUNT BOOKS BY AN AMOUNT OF RS.19,40,000/ - . THE ASSESSING OFFICER LEVIED PENALTY U/S 271(1)(C) OF THE ACT @ 100% OF THE TAX SOUGHT TO BE EVADED ON THE AFORESAID INCOMES THEREBY RESULTING IN LEVY OF PENALTY OF RS.55,06,597 / - . THE CIT(A) HAS SINCE DELETED THE PENALTY FOR THE REASONS ADVANCED IN THE IMPUGNED ORDER. THE REVENUE IS IN APPEAL BEFORE US CHALLENGING THE AFORESAID DECISION OF THE CIT(A). 4. AT THE TIME OF HEARING, THE LEARNED REPRESENTATIVE FOR THE RESPONDENT - AS SESSEE SUBMITTED AT THE OUTSET THAT THE ADDITIONS ON THE BASIS OF WHICH PENALTY HAS BEEN LEVIED, HAD SINCE BEEN DELETED BY THE 3 M/S. UNILEVER INDUSTRIES PVT. LTD. ITA NO. 7590/MUM/2010 TRIBUNAL WHILE ADJUDICATING ASSESSEES APPEAL IN THE QUANTUM PROCEEDINGS VIDE ITA NO.1936/MUM/2007 DATED 8.1.2016, A COPY OF SUCH ORDER WAS PLACED ON RECORD. IT IS ALSO POINTED OUT THAT THE SAID DECISION OF THE TRIBUNAL CONTINUES TO HOLD THE FIELD AS IT HAS NOT BEEN ALTERED BY ANY HIGHER AUTHORITY. 5. IN VIEW OF THE AFORESAID, IT IS CLEAR THAT THE VERY BASIS ON WHICH THE PENALTY W AS IMPOSED BY THE ASSESSING OFFICER NO LONGER SURVIVES AND, THEREFORE, THE ULTIMATE CONCLUSION OF THE CIT(A) IN DELETING THE PENALTY IS LIABLE TO BE UPHELD , ALBEIT ON A DIFFERENT GROUND. WE HOLD SO. 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED, AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 1 7 T H AUGUST, 2016. SD/ - SD/ - ( RAVISH SOOD ) JUDICIAL MEMBER ( G.S. PANNU ) ACCOUNTANT MEMBER MUMBAI, DATE : 1 7 T H AUGUST , 2016 *SSL* COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, K BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI