Tantia Joint Venture, Kolkata V. DCIT, Circle-51, Kolkata, Kolkata

ITA 78/KOL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1551 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 17-01-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AVINASH MISHRA CIT L D
• Assessee Lawyers: MANISH TIWARI F C A LD
• Keywords: Transfer pricing
• Section: 143(3); 263; 92

Judgement Text

1 ITA NO. 78/KOL/2017 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KO LKATA BEFORE: SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JU DICIAL MEMBER I.T.A NO. 78/KOL /2017 A.Y: 2013 -14 M/S. TANTIA TBL VS. PR. CIT-17, KOLKATA JOINT VENTURE PAN: AAAAT4792R [APPELLANT] [RESPONDEN T] FOR THE APPELLANT : SHRI MANISH TIWARI, FCA, L D.AR FOR THE RESPONDENT : SHRI AVINASH MISHRA, CIT, L D.DR DATE OF HEARING : 28-11-2017 DATE OF PRONOUNCEMENT : 14-02-2018 ORDER SHRI S.S.VISWANETHRA RAVI, JM: THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER O F THE PR. COMMISSIONER OF INCOME TAX, KOL-17, KOL. DT. 30-08- 2016 FOR THE A.Y 2013-14 PASSED U/S. 263 OF THE ACT. 2. THE LD.AR SUBMITS THAT THE PR.CIT HAVING EXERCI SED HIS JURISDICTION U/S. 263 OF THE ACT HELD THE ASSESSM ENT ORDER PASSED U/S. 143(3) OF THE ACT DT. 29-12-2015 IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE AND DIRECTED THE AO TO CONDUCT ENQUIRY IN RESPECT OF AMOUNTS PAID TO TWO RELATED PARTIES AS P ER SECTION 92C(1) OF THE ACT. THE LD. AR PLACED ON RECORD AN ORDER DT . 24-10-2017 PASSED BY THE TPO U/SEC. 92 CA(3) OF THE ACT AND RE FERRED TO PARA-3 OF THE SAID ORDER AND ARGUED THAT IT HAS NO GRIEVAN CE AGAINST THE IMPUGNED ORDER PASSED BY THE PR. CIT U/SEC. 263 OF THE ACT IN VIEW OF THE FINDING OF TPO (TRANSFER PRICING OFFICER) TH AT NO TRANSFER PRICING ADJUSTMENT IS WARRANTED IN THE CASE OF ASSESSEE. 2 ITA NO. 78/KOL/2017 3. ON THE OTHER HAND, THE LD. DR RELIED ON THE ORDE R OF THE PR.CIT. 4. HEARD RIVAL SUBMISSIONS AND PERUSED MATERIAL. W E FIND THAT THE PR. CIT OPINED THAT THE ASSESSEE HAS ONLY SUBMITTE D A JOINT VENTURE AGREEMENT DT. 01-03-2001 & 04.05.2001 WITH M/S. TEC HNI BHARATI LTD & M/S. TANTIA CONSTRUCTION LTD IN THE ASSESSMENT PR OCEEDINGS U/S. 143(3) OF THE ACT IN WHICH PERCENTAGE OF SHARE OF P AYMENT IS ONLY MENTIONED, BUT NO BASIS FOR DETERMINATION OF SUCH P ERCENTAGE HAS BEEN GIVEN TO SHOW THAT SUCH PAYMENT WAS COMMENSURA TE WITH THE SERVICES PROVIDED BY THE PARTIES AND ALSO WORK DONE BY THEM FOR THE ASSESSEE BY PRESENTING DATA OF SIMILAR PAYMENTS BEI NG MADE TO SOME UNRELATED PARTIES FOR SAME KIND OF SERVICES AND EXE CUTION OF WORK AS DONE BY THESE TWO PARTIES I.E M/S. TANTIA CONSTRUCT ION LTD & M/S. TECHNO BHARATI LTD. THEREFORE, THE AO WAS REQUIRED TO OBTAIN SUCH DATA AND MAKE NECESSARY EXAMINATION TO ASCERTAIN TH E MOST APPROPRIATE METHOD TO BE APPLIED IN CASE OF THE PRE SENT ASSESSEE FOR DETERMINATION OF ALP IN RELATION TO THE TRANSACTION BY THE ASSESSEE WITH THE SAID TWO PARTIES. SINCE NO SUCH ENQUIRY OR COLLECTION OF DATA FOR FURTHER EXAMINATION HAS BEEN DONE BY THE AO, TH E CIT DIRECTED THE AO TO REFER THE MATTER TO THE TPO FOR DETERMINA TION OF ALP IN RESPECT OF THE TRANSITIONS WITH THE ABOVE MENTIONED TWO PARTIES. IT IS OBSERVED FROM THE ORDER DT. 24-10-2017 PASSED BY TH E TPO THAT THE NOTICE U/S. 92CA(2) DT. 1-3-2017 WAS ISSUED TO ASSE SSEE. IN RESPONSE TO WHICH, THE AR OF THE ASSESSEE APPEARED BEFORE TH E TPO AND SUBMITTED REQUISITIONED DOCUMENTS AND INFORMATION . ON EXAMINING THE SAME, THE TPO, HELD THAT NO TRANSFER PRICING AD JUSTMENT IS WARRANTED IN THE SPECIFIED DOMESTIC TRANSACTIONS E NTERED INTO BY THE ASSESSEE. WE FIND FROM THE ORDER DT. 24-10-2017 OF TPO, WHICH IS PLACED ON RECORD BY THE LD.AR, WHEREIN IT IS CLEAR THAT THE OBJECTIONS RAISED BY THE CIT U/S. 263 WERE ANSWERED. THEREFOR E, THE GROUNDS RAISED BY THE ASSESSEE IN THE APPEAL HAVE BECOME IN FRUCTUOUS AND HENCE, DISMISSED. 3 ITA NO. 78/KOL/2017 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 14- 02-2018 SD/- SD/- J. SUDHAKAR REDDY S.S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 14-02-2018 PP(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT/ASSESSEE: M/S. TANTIA TBL JOINT VENTURE, DD-30, SALT LAKE CITY, SECTOR-I, KOLKATA-700 064. 2 RESPONDENT/REVENUE : PR. CIT-17, KOLKATA MANICKTALLA, UTTARAPAN COMPLEX, CIVIC CENTRE, KOLKA TA-700 054. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, SR.PS/H.O.O ITAT KOLKATA