M/s. Shell International B.V., Ahmedabad V. The Dy.CIT, Intl.Taxn.-1, Ahmedabad

ITA 779/AHD/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 9120 (ITAT-AHMEDABAD)
• Duration Of Justice: 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 07-02-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 30-03-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Transfer pricing; Double taxation relief; International transaction; Additional evidence
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 143(3); 92; 142(1); 201; 144C; 274; 143(2); 9(1); 9(1); 9(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD I BENCH BEFORE: SHR I R. P. TOLANI , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER SHELL INTERNATIONAL BV, CAREL VAN BYLANDTLAAN 30 DEN HAAG, THE NETHERLANDS PAN: AAHCS9360D (APPELLANT) VS THE DCIT, INTERNATIONAL TAXATION - I, ROOM NO. 205, 2 ND FLOOR, NAVJIVAN TRUST BUILD, ASHRAM ROAD, AHMEDABAD (RESPONDENT) REVENUE BY : S H RI HARIGOVIND SINGH, CIT - D . R. ASSESSEE BY: S H RI RAHUL MITRA , A.R. DATE OF HEARING : 07 - 02 - 2 017 DATE OF PRONOUNCEMENT : 01 - 03 - 2 017 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THIS ASSESSEE S APPEAL FOR A.Y. 2011 - 12 , AR IS ES FROM ORDER OF THE ASSESSING OFFICER, AHMEDABAD DATED 27 - 01 - 2016 , IN PROCEEDINGS UNDER SECTION 143(3) R.W.S. 144C OF THE INCOME TAX ACT, 1961; IN SHOR T THE ACT . I T A NO . 779 / A HD/20 16 A SS ESSME NT YEAR 2011 - 12 I.T.A NO. 779 /AHD/20 16 A.Y. 2011 - 12 PAGE NO SHELL INTERNATIONAL BV VS. DCIT 2 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: - 1. THE LEARNED AO BASED ON THE DIRECTIONS OF THE DRP HAS ERRED ON THE FACTS AND IN LAW IN TREATING THE AGGREGATE COST RECOVERY OF RS. 1,09,52,900 RECEIVED FROM HAZIRA LNG PRIVATE LIMITED ('HLPL'), HAZIRA PORT PRIVATE LIMITED HPPL') AND SHELL INDIA MARKETS PRIVATE LIMITED ( SIMPL') FOR HR SHELL PEOPLE SUPPORT (WHICH INCLUDES LICENSE FEES FOR USE OF HR SOFTWARE AND ONGOING SUPPORT) AS ROYALTY UNDER SECTION 9(1)(VI) OF THE ACT AND AR TICLE 12 OF INDIA - NETHERLANDS TAX TREATY ('TAX TREATY'). 2. THE LEARNED AO BASED ON THE DIRECTIONS OF THE DRP ERRED ON THE FACTS AND IN LAW IN TREATING THE COST RECOVERY OF RS. 2,67,77,982 RECEIVED FROM SIMPL FOR GRANT OF EXTERNAL INFORMATION SYST EM ('EIS') LICENSES (LICENSE FOR ONLINE DATABASES) AS ROYALTY UNDER SECTION 9(1)(VI) OF THE ACT AND ARTICLE 12 OF TAX TREATY. 3. THE LEARNED AO BASED ON THE DIRECTIONS OF THE DRP HAS ERRED ON THE FACTS AND IN LAW IN TREATING THE COST RECOVERY OF RS . 62,66,328 RECEIVED FROM SIMPL FOR CHR RECRUITMENT FEES AS FEES FOR TECHNICAL SERVICES UNDER SECTION 9(1)(VII) OF THE ACT AND ARTICLE 12 OF TAX TREATY. 4. THE LEARNED AO BASED ON THE DIRECTIONS OF THE DRP HAS ERRED ON THE FACTS AND IN LAW IN TREAT ING THE COST RECOVERY OF RS. 55,28,664 RECEIVED FROM SIMPL FOR IT MIGRATION SUPPORT AS FEES FOR TECHNICAL SERVICES UNDER SECTION 9(1)(VII) OF THE ACT AND ARTICLE 12 OF TAX TREATY. 5. WITHOUT PREJUDICE TO THE ABOVE MENTIONED GROUNDS, THE LEARNED AO B ASED ON THE DIRECTIONS OF THE DRP HAS ERRED ON THE FACTS AND IN LAW IN DISREGARDING THE FACT THAT THE AMOUNT RECEIVED FOR THE ABOVE MENTIONED COST RECOVERIES IS A MERE ALLOCATION OF COST INCURRED BY SIBV WITHOUT MARKUP AND HENCE THE SAME IS NOT CHARGEABLE TO TAX IN INDIA. 6. THE LEARNED AO HAS ERRED IN LEVY OF INTEREST UNDER SECTION 234A, 234B, 234C AND 234D OF THE ACT. 7. THE LEARNED AO BASED ON THE DIRECTIONS OF THE DRP HAS ERRED IN INITIATING PENALTY PROCEEDINGS UNDER SECTION 274 R.W.S 271(1)(C ) OF THE ACT AGAINST THE APPELLANT . I.T.A NO. 779 /AHD/20 16 A.Y. 2011 - 12 PAGE NO SHELL INTERNATIONAL BV VS. DCIT 3 3. THE BRIEF FACT OF THE CASE IS THAT THE ASSESSEE FILED RETURN OF INCOME FOR ASSESSMENT YEAR 2011 - 12 DECLARING INCOME OF RS. 71 , 88 , 434/ - . THE CASE WAS SELECTED FOR SECRUTINY. THEREAFTER, THE ASSESSING OFFICER ISSUED NOTICE U/S. 143(2) AND 142(1) OF THE ACT TO THE ASSESSEE. DURING THE COURSE OF APPELLATE PROCEEDINGS, ASSESSING OFFICER NOTICED ON VERIFICATION OF FORM NO. 3CEB THAT THE ASSESSEE COMPANY HAS ENTERED INTO INTERNATIONAL TRANSACTION WITH ITS ASSOCIATE ENTERP RISE TO THE TUNE OF RS. 17 , 38 , 36 , 991/ - . THEREAFTER , THE CASE OF THE ASSESSEE WAS REFERRED TO THE TPO FOR DETERMINATION OF ARM S LENGTH PRICE OF THE INTERNATIONAL TRANSACTION AND TPO HAS NOT RECOMMENDED ANY ADJUSTMENT. THE ASSESSE WAS A FOREIGN COMPANY IN CORPORATED IN NETHERLAND S AND WAS PRIMARILY ENGAGED IN PROVIDING TECHNICAL/OTH ER SERVICES GLOBALLY TO THE SHELL GROUP OF COMPANIES EN GAGED IN SUPPL YING OIL, CHEMICAL, GAS AND POW ER AROUND THE WORLD. DURING THE YEAR UNDER CONSIDERATION, ASSESSEE COMPANY HA S PROVIDED SOME SERVICES AND SOME OF THEM HAVE BE EN OFFERED TO TAX AS FEES FOR TECHNICAL SERVICES/ROYALTY. HOWEVER, REVENUE FROM RENDERING CERTAIN SERVICES HAVE BEEN CLAIMED AS NON - TAXABLE BY THE ASSESSEE. THE ASSESSING OFFICER OBSERVED THAT OUT OF THE R EVENUE CLAIMED AS NON - TAXABLE IN CASE OF CERTAIN SERVICES W AS FOUND TO BE TAXABLE. THE ASSESSING OFFICER MADE DRAFT ORDER U/S. 144C(1) OF THE ACT FOR TAXING THE SERVICES WHICH CLAIMED BY THE ASSESSEE AS NON - TAXABLE. THE ASSESSEE FILED OBJECTION AGAINST THE DRAFT ORDER MADE BY THE ASSESSEE BEFORE THE DISP UTE RESOLUTION PANEL (DRP) MU MBAI. THEREAFTER, TH E DRP HAS ISSUED DIRECTION U/S. 144C(5) OF THE ACT FOR COMPLETION OF THE ASSESSMENT TO THE ASSESSING OFFICER. THE I.T.A NO. 779 /AHD/20 16 A.Y. 2011 - 12 PAGE NO SHELL INTERNATIONAL BV VS. DCIT 4 ASSESSING OFFICER ACCORDINGLY DETERMIN ED THE FOLLOWING SERVICES WHICH THE ASSESS EE CONSIDERED AS NOT TAXABLE WERE LIABLE TO TAX: - - HR SHELL PEOPLE SUPPORT SERVI CES OF RS 1 ,09,52,900/ - - LICENSES, FEES, PATENTS AND SUBSCRIPTIONS OF RS 2,67,77,982/ - - CH R RECRUITMENT FEES OF RS 62,66, 328/ - - I T S ERVICE MIGRATION SUPPORT OF RS 55,28 / 664/ - DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER HAS ASKED THE ASSESSEE TO EXPLAIN THE NATURE OF SERVICES SUB HEADS WISE AND ESTABLISH WITH COGENT EVIDENCES THAT THEY WERE NOT TAXABLE AS PER T HE ACT AND AS PER THE DTAA. THE SAME ARE DISCUSSED AS UNDER: - HR SHELL PEOPLE SUPPORT SERVICES OF RS 1,09,52,900/ - 4. DURING THE COURSE OF A SSESSMENT PROCEEDINGS, IT WAS FOUND THAT ASSSESSEE HA D RECEIVED A SUM OF RS. 1 , 09 , 52 ,90 0/ - ON ACCOUNT OF HR SH ELL SUPPORT SERVICES . THE ASSESSEE EXPLAINED THAT THIS PAYMENT RELATED TO A WIDE ARRAY OF SERVI CES WHICH INCLUDE USE OF HR SOFTWARE AND ONGOING SUPPORT SERVICES. THE ASSESSING OFFICER ASKED THE ASSESSEE TO SUBMIT THE BIFURCATION OF PAYMENT WHICH RELATED TO SOFTWARE AND ONGOING SUPPORT SERVICES. THE ASSESSING OFFICER REPORTED THAT THE ASSESSEE SUBMITTED THAT IT WAS NOT POSSIBLE TO PROVIDE DETAILED BIFURCATION. THE ASSESSING OFFICER ALSO STATED THAT DURING THE COURSE OF HEARING THE ASSESSEE INFORMED THAT MAJORITY OF PAYMENT WAS RELATED TO LICENSE FEES FOR USE OF HR SOFTWARE. THE I.T.A NO. 779 /AHD/20 16 A.Y. 2011 - 12 PAGE NO SHELL INTERNATIONAL BV VS. DCIT 5 ASSESSING OFFICER POINTED OUT THAT ASSESSEE HAD NOT FURNISH ED COPY OF AGREEMENT AND ONLY INVOICES WERE SUBMITTED WHICH WERE NOT VERY DESCRIPTI VE. O N PERUSAL OF LIMITED DETAIL SUBMITTED BY THE ASSESSEE DURING THE COURSE OF VERIFICATION , THE ASSESSING OFFICER OBSERVED THAT PAYMENT PERTAINED TO USE OF SHELL HL SOFTWARE ALONG WITH OTHER INSTANCES SERVICES W AS IN THE NATURE OF R OYALTY PAYMENT AND CHARGEABLE TO TAX AS ROYALTY U/S. 9( 1)(VI ) R EAD WITH CORRESPONDING ARTICLE OF RELEVANT DTAA. THEREAFTER, THE ASSESSING OFFICER ISSUED SHOW CAUSE NOTICE TO THE ASSESSEE AS TO WHY THE SAME SHOULD NOT BE TAXED AS SUCH . THE ASSESSEE SUBMITTED THAT HR SOFTWARE WAS DEVELOPED AND MAINTAINED BY A SI B V F O R THE SH E L L G ROUP . THROUGH THIS SOFTWARE THE EMPLOYEE RELATED INFORMATION WAS CAPTURED AND MADE AVAILABLE TO THE RECRUITMENT TEAMS AND EXECUTIVE MANAGEMENT TO MANAGE THE RESOURCES OF THE COMPANY IN A MOST EFFECTIVE AND EFFICIENT MANNER. IT WAS ALS O SUBMITTED THAT SIBP HAD ONLY GRANTED ACCESS FOR THE USE OF HR SOFTWARE DEVELOPED BY IT AND HAS NOT GIVEN ANY RIGHT TO REPRODUCE OR MAKE COPIES OF THE SAID SOFTWARE. THE ASSESSEE HAS ALSO REFERRED BEFORE THE ASSESSING OFFICER ABOUT THE PROVISIONS OF INDIA NETHERLAND TAX TREATY STATING THAT PAVEMENT FO R SOFTWARE IS NOT TAXABLE IN INDIA. T HE ASSESSEE HAS ALSO DISCUSSED ABOUT THE PROVISION OF COPYRIGHT ACT, 1957 STATING THAT RIGHT TO USE COPYRIGHT IS DIFFERENT FROM THE RIGHT OR RIGHT TO USE A COPYRI GHTED ARTICLE. THE ASSESSEE HAS ALSO PLACED RELIANCE ON THE NUMBER OF JUDICIAL PRONOUNCEMENTS IN SUPPORT OF ITS CONTENTION. THE ASSESSEE ALSO MENTIONED THAT THE AMOUNT RECEIVED WAS MORE IN THE NATURE OF REIMBURSEMENT OF EXPENDITURE WITH THE NO INCOME EL EMENT INVOLVED. I.T.A NO. 779 /AHD/20 16 A.Y. 2011 - 12 PAGE NO SHELL INTERNATIONAL BV VS. DCIT 6 HOWEVER, THE ASSESSING OFFICER HAS NOT ACCEPTED THE EXPLANATION OF THE ASSESSEE AND STATED THAT PAYMENT WAS TAXABLE AS ROYALTY AS PER THE PROVISIONS OF SECTION 9(1)(VI) OF THE ACT. THE ASSESSING OFFICER HAS POINTED OUT THAT THE TAX TREATY PROVIDES FOR CHARGING OF TAX ON GROSS BASIS. ASSESSING OFFICER ALSO MENTIONED THAT THE FACTS MADE IT CLEAR THAT THIS AMOUNT DID NOT REPRESENT THE REIMBURSEMENT BUT PAYMENT FOR USING A SERVICE OR FACILITY ARRANGED BY THE NON - RESIDENT PARTY. THE ASSESS ING OFFICER ALSO POINTED OUT THAT THE ASSESSEE HAS FAILED TO SUBMIT ANY AGREEMENT PURSUANT TO WHICH SUCH SERVICES HAVE BEEN PROVIDED. THE ASSESSING OFFICER HAS ALSO STATED THE PROVISION OF COPYRIGHT ACT IN SUPPORT OF HIS CONTENTION THAT THE RIGHT TO MAKE COPIES OF COPYRIGHTED WORK ALSO CONSTITUTE EXCLUSIVE RIGHT OF THE COPYRIGHT HOLDER AS PER SECTION 51 OF THE COPYRIGHT ACT. THE ASSESSING OFFICER HAS ALSO PLACED RELIANCE ON THE NUMBER OF JUDICIAL PRONOUNCEMENT IN SUPPORT OF HIS DECISION. LICENSES, FEES, P ATENTS AND SUBSCRIPTIONS OF RS 2,67,77,982/ - 5. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS FOUND BY THE ASSESSING OFFICER THAT ASSESSEE HAS RECEIVED AS SUM OF RS. 2,67,77,982/ - F R O M ITS AFFILIATES ON ACCOUNT OF REIMBURSEMENT FOR PAYMENTS MADE T O THIRD PARTIES IN RESPECT OF FEE FOR ONLINE DATA BASE ACCESS. ASSESSING OFFICER STATED THAT SUCH RECEIPTS WERE IN THE NATURE OF ROYALTY AND CHARGEABLE TO TAX U/S. 9(1)(VI) OF THE ACT R.W. CORRESPONDING ARTICLE OF DTAA. IN THIS CONNECTION THE ASSESSEE HAS SUBMITTED THAT SIBV SUBSCRIBES TO THE VARIOUS EXTERNAL INFORMATION I.T.A NO. 779 /AHD/20 16 A.Y. 2011 - 12 PAGE NO SHELL INTERNATIONAL BV VS. DCIT 7 SYSTEM SERVICE PROVIDERS ON THE HALF OF THE SHELL GROUP. THE COST INCURRED BY SIBV FOR EXTERNAL INFORMATION SYSTEM ( EIS ) SERVICES WAS CHARGED TO SHELL GROUP ENTITIES BASED ON THEIR USAGE O F EIS SERVICES. THE ASSESSEE HAS ALSO SUBMITTED THAT THE PAYMENT MADE TO SIBV WOULD NOT CONSTITUTE ROYALTY AS PER ARTICLE 12 OF INDIA NETHERLAND TAX TREATY AND THE SAME WAS NOT TAXABLE IN INDIA. THE ASSESSING OFFICER HAS NOT AGREED WITH THE SUBMISSION OF THE ASSESSEE AND STATED THAT IT WAS CLEAR FROM THE CERTAIN AGREEMENT SUBMITTED BY THE ASSESSEE THAT THE DATABASE WAS AVAILABLE ON PAYMENT OF ACCESS FEES AND THEREFORE IT WAS CLEAR THAT THE INFORMATION WAS NOT FREELY AVAILABLE IN THE PUBLIC DOMAIN. THE ASS ESSING OFFICER IN SUPPORT OF HIS DECISION ALSO PLACED RELIANCE ON A NUMBER OF JUDICIAL PRONOUNCEMENT. CHR RECRUITMENT FEES OF RS 62,66,328/ - & IT SERVICE MIGRATION SUPPORT OF RS 55,28 / 664/ - 6. DURING THE COURSE OF SCRUTINY PROCEEDINGS, IT WAS FOUN D THAT ASSESSEE HAS RECEIVED CHR RECRUITMENT FEES OF RS. 62 , 6 6, 328/ - AND IT SERVICE S OF MIGRATION SUPPORT OF RS. 55, 28 , 664/ - FROM ITS AFFILIATES. THE ASSESSING OFFICER STA T ED THAT SUCH RECEIPTS WERE IN THE NATURE OF FTS/FIS AND ARE CHARGEABLE TO TAX U/S. 9(1) ( VII) OF THE ACT READS WITH CORRESPONDING ARTICLE OF DTAA. THE ASSESSEE HAS STATED IN HIS SUBMISSION THAT THE COST INCURRED BY THE GLOBAL RECRUITMENT TEAM WAS SHARED ACROSS VARIOUS SHALL ENTITIES WHICH HAVE AVAILED THE SERVICES OF THE RECRUITMENT TEAM. THE ASSESSEE ALSO SUBMITTED THAT THE ABOVE SERVICES HAD NOT MADE AVAILABLE ANY TECHNICAL KNOWLEDGE, SKILL OR I.T.A NO. 779 /AHD/20 16 A.Y. 2011 - 12 PAGE NO SHELL INTERNATIONAL BV VS. DCIT 8 EXPERIENCE AS CONTEMPLATED VIDE ARTICLE 12 OF INDIA - NETHERLAND TAX TREATY. THE ASSESSEE HA D ALSO PLACED RELIANCE ON A NUMBER OF JUDICIAL PRONOUNCEM ENTS IN SUPPORT OF ITS CONTENTION. HOWEVER ,THE ASSESSING OFFICER HAS NOT ACCEPTED THE REPLY OF THE ASSESSEE AND STATED THAT THE ASSESSEE FAILED TO SUBMIT ANY AGREEMENT PURSUANT TO WHICH SUCH SERVICES HAVE BEEN PROVIDED. THE ASSESSING OFFICER HAS ALSO DISC USSED THE INDIA NETHERLAND DTAA AND MENTIONED THAT IT IS CLEAR THAT IT NOT ONLY TALK ABOUT TAXABILITY OF TECHNICAL SERVICES BUT ALSO CONSULTANCY SERVICES. HE FURTHER MENTIONED THAT THE CONSULTANCY SERVICES FALL IN THE AMBIT OF TAXATION IF SUCH SERVICES M AKE AVAILABLE EXPEDIENCE OR SKILL POSSESSED BY THE ASSESSEE TO THE AFFILIATES. O N PERUSAL OF THE SERVICES THE ASSESSING OFFICER OBSERVED THAT THE NON RESIDENT COMPANY PROVIDES HIGHLY TECHNICAL SERVICES WHICH WERE USED BY THE ASSESSEE FOR TAKING IMPORTANT AND STRATEGIC DECISIONS. THE ASSESSING OFFICER STATED THAT THESE PAYMENTS WERE TAXABLE AND CONSULTANCY SERVICES AS WAS CLEARLY FALL IN THE DEFINITION OF ARTICLE 12.4 OF THE DTAA. THE ASSESSING OFFICER ALSO DISCUSSED ABOUT MEMORANDUM OF UNDERSTANDING CONCE RNING FEES FOR INCLUDED SERVICES IN ARTICLE 12 DATED 15TH MAY,1989. THE ASSESSING OFFICER HAS ALSO PLACED RELIANCE ON A NUMBER OF JUDICIAL PRONOUNCEMENT IN SUPPORT OF HIS DECISION THAT EXPERIENCE OR SKILL POSSESSED BY THE ASSESSEE HAS BEEN TRANSFERRED TO THE AFFILIATES WHICH AMOUNTS TO MAKING AVAILABLE THE FIS/ FTS AND THEREFORE THE AMOUNTS RECEIVED ARE TAXABLE AS PER THE DTAA. I.T.A NO. 779 /AHD/20 16 A.Y. 2011 - 12 PAGE NO SHELL INTERNATIONAL BV VS. DCIT 9 7. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US, THE ASSESSEE HAS FILED ADDITIONAL EVIDENCES VIDE LETTER DATED 16 - 08 - 08 - 2 016, 30 TH SEPTEMBER, 2016 AND 17 TH JANUARY, 2017 RESPECTIVELY . THE ASSESSEE HAS REQUESTED TO ADMIT THE ADDITIONAL EVIDENCES PERTAINING TO THE FOUR GROUNDS OF APPEAL CHA LL E N GING THE ADDITION S MADE BY THE ASSESSING OFFICER REGARDING HR SHELL PEOPLE SUPPORT SERVICES OF RS 1,09,52,900/ - , LICENSES, FEES, PATENTS AND SUBSCRIPTIONS OF RS 2,67,77,982/ - , CHR RECRUITMENT FEES OF RS 62,66,328/ - AND IT SERVICE MIGRATION SUPPORT OF RS 55,28 / 664/ - . THE ASSESSEE HAS FILED THESE ADDITIONAL EVIDENCES UNDER RULE 29 OF ITA T RULES, 1961. 1. ADDITIONAL EVIDENCE FILED ON 16.08.2016 2. ADDITIONAL EVIDENCE FILED ON 30 - 09 - 2016 3. A DDITIONAL EVIDENCES FILED ON1 7 .01 2017 IT WAS FURTHER SUBMITTED THAT THESE EVIDENCES ARE MATERIAL AND EXTREMELY RELEVANT TO SUPPORT THE CONTENTION O F THE ASSES SEE AND DECIDE THE ISSUE. THE LD C OUNSEL RELIED ON THE JUDICIAL PRONOUNCEMENT IN THE CASE OF CIT V.TEXT HUNDRED INDIA(P) LTD.(2011)197 TAXMAN128 (DELHI) IT WAS SUBMITTED THAT THE ABOVE REFERRED EVIDENCES ARE IMPORTANT DOCUMENTS FOR DECIDING T HE APPEAL, AND, THEREFORE, DESERVE TO BE ADMITTED AS ADDITIONAL EVIDENCES. THE LEARNED COUNSEL ALSO CONTENDED THAT PART OF THE ADDITIONAL EVIDENCES PERTAIN TO THE LATER YEARS , BUT JUSTIFIES /DEMONSTRATES THE NATURE OF SERVICES BEING I.T.A NO. 779 /AHD/20 16 A.Y. 2011 - 12 PAGE NO SHELL INTERNATIONAL BV VS. DCIT 10 RENDERED BY THE ASSESSE E ON YEAR ON YEAR BASIS. THE LEARNED COUNSEL FURTHER STATED THAT THESE EVIDENCES GO THE ROUTE OF THE MATTER IN DESCRIBING THE NATURE OF SERVICES RENDERED BY THE ASSESSING. ON THE OTHER HAND THE LD. DR OPPOSED THE ADDITIONAL EVIDENCES AND RELIED ON THE ORDE R OF THE ASSESSING OFFICER. 8. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATERIAL ON RECORD. WE HAVE CONSIDERED THE CONTENTION OF THE ASSESSEE THAT THE ABOVE REFERRED EVIDENCES ARE IMPORTANT DOCUMENTS FOR DECIDING THE APPEAL, AND, THEREFORE, DESERVE T O BE ADMITTED AS ADDITIONAL EVIDENCES. WE HAVE ALSO PERUSED THE JUDICIAL PRONOUNCEMENT IN THE CIT V. TEXT HUNDRED INDIA(P) LTD.(2011)197 TAXMAN128 (DELHI) IN WHICH THE HON'BLE DELHI HIGH COURT HELD ' A DISCRETION LIES WITH THE TRIBUNAL TO ADMIT ADDITIONA L EVIDENCE IN THE INTEREST OF JUSTICE, ONCE THE TRIBUNAL AFFIRMS OPINION THAT DOING SO WOULD BE NECESSARY FOR PROPER ADJUDICATION OF THE MATTER AND THIS CAN BE DONE EVEN WHEN APPLICATION IS FILED BY ONE OF PARTIES TO APPEAL AND IT NEED NOT TO BE A SUO MOTU ACTION OF THE TRIBUNAL. THE AFORESAID RULE IS MADE FOR ENABLING THE TRIBUNAL TO ADMIT THE ADDITIONAL EVIDENCE IN ITS DISCRETION, IF THE TRIBUNAL HOLDS THE VIEW THAT SUCH AN ADDITIONAL EVIDENCE WOULD BE NECESSARY TO DO SUBSTANTIAL JUSTICE IN THE MATTER. IT IS WELL - SETTLED THAT THE PROCEDURE IS HANDMADE FOR JUSTICE AND SHOULD NOT BE ALLOWED TO BE CHOKED ONLY BECAUSE OF SOME INADVERTENT ERROR OR OMISSION ON THE PART OF ONE OF THE PARTIES TO LEAD EVIDENCE AT THE APPROPRIATE STAGE. ' WE HAVE GONE THROUGH THE ABOVE JUDICIAL PRONOUNCEMENT DELIVERED BY THE HON'BLE DELHI HIGH COURT REGARDING ADMISSION OF ADDITIONAL EVIDENCES. AFTER TAKING INTO CONSIDERATION THE ABOVE FACTS AND LEGAL FINDINGS WE LOOKED INTO THE ENTIRE MATTER AND ARRIVED AT A CONCLUSION THAT EX AMINATION OF THESE ADDITIONAL EVIDENCES WOULD BE USEFUL AND I.T.A NO. 779 /AHD/20 16 A.Y. 2011 - 12 PAGE NO SHELL INTERNATIONAL BV VS. DCIT 11 RELEVANT FOR ADJUDICATION OF THE ISSUES INVOLVED IN THIS CASE ON MERIT . THEREFORE, WE CONSIDERED IT APPROPRIATE TO RESTORE THIS MATTER TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THIS MATTER A FRESH AFTER VERIFICATION OF THE ADDITIONAL EVIDENCES FURNISHED BY THE ASSESSEE AND AFTER PROVIDING DUE OPPORTUNITY TO THE ASSESSEE. WE HAVE ALSO NOTICED THAT THE PAPER BOOK SUBMITTED BY THE ASSESSEE REGARDING ADMISSION OF ADDITIONAL EVIDENCES CONTAINED A LETTER DATED 19 SEPTEMBER2016 OF THE ASSESSIMG OFFICER ADDRESSED TO DRP OBJECTING THE ADDITIONAL EVIDENCES SUBMITTED BY THE ASSESSEE TO DEFEND ITS CLAIM ON THE BASIS OF DOCUMENT /EVIDENCES AFTER THE ASSESSMENT PROCEEDINGS WERE OVER. IN THIS CONNECTION AS PER OUR CONSIDERED OPINION FOR PROPER ADJUDICATION OF THE MATTER AND IN THE INTEREST OF SUBSTANTIAL CAUSE WE DIRECT THE ASSESSING OFFICER TO PROVE HIS CONTENTIONS REGARDING GENUINENESS OF THE ADDITIONAL EVIDENCES AFTER NECESSARY EXAMINATIONS AND V ERIFICATIONS DURING THE COURSE OF FRESH ASSESSMENT PROCEEDINGS AS STATED SUPRA IN THIS ORDER . 9 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PR ONOUNCED IN THE OPEN C OURT ON 01 - 03 - 201 7 SD/ - SD/ - ( R. P. TOLANI ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 01 /03 /2017 I.T.A NO. 779 /AHD/20 16 A.Y. 2011 - 12 PAGE NO SHELL INTERNATIONAL BV VS. DCIT 12 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. D R, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,