DCIT, CIRCLE- 16(2), NEW DELHI V. MITSUBISHI CORPORATION INDIA PVT. LTD., NEW DELHI

ITA 9364/DEL/2019

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 8234 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2016-2017
• Appeal Filed On: 04-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Double taxation relief; TDS
• Section: 143(3); 40(a)(ia); 195

Judgement Text

1 ITA No. 9364/Del/2019 DCIT Vs. Mitsubishi Corporation India, ND IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH : “D” NEW DELHI ] BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI YOGESH KUMAR US, JUDICIAL MEMBER I.T.A. No. 9364/DEL/2019 (A.Y 2016-17) DCIT, Circle : 16 (2), New Delhi. (APPELLANT) Vs. M/s. Mitsubishi Corporation India Private Limited, 5 th Floor, Birla Tower, 25, Barakhamba Road, New Delhi – 110 001. PAN No. AAACM4764G (RESPONDENT) ORDER PER YOGESH KUMAR US, JM This appeal is filed by the Revenue for assessment year 2016-17 against the order of the ld. Commissioner of Income Tax (Appeals)–6, New Delhi, dated 26.09.2019. 2. This appeal is defective as the Revenue has not filed any grounds of appeal, but submitted that the grounds mentioned in the Authorization letter Assessee by : Shri Tarandeep Singh, Advocate; Department by: Ms. Sapna Bhatia, [CIT] – D. R.; Date of Hearing 08.08.2022 Date of Pronouncement 12.08.2022 2 ITA No. 9364/Del/2019 DCIT Vs. Mitsubishi Corporation India, ND for filing the Appeal issued by the Pr. Commissioner of Income Tax, Delhi, vide letter dated 04/02/2019 may be treated as grounds of Appeal in the present Appeal, which are hereunder:- “Whether on the facts and circumstances of the case, the Ld. Is legally justified in deleting the disallowance of Rs. 11,85,35,823/- on account of disallowance of non-deduction of TDS? 2. Whether on the facts and circumstances of the case, the Ld. Is legally justified regarding disallowance of non-deduction of TDS under Section 40(a)(ia) of the I.T Act, as the assessee company made may purchases from its associates company and various non- residents group companies?” 3. Brief facts of the case are that, the assessment order u/s 143(3) of the Act came to be passed on 22/12/2018 by making disallowance for non deduction of TDS of Rs. 23,70,71,645/-. As against the assessment order, the assessee has preferred an Appeal before the CIT(A) and the Ld.CIT(A) vide order dated 26/09/2019 partly allowed the Appeal deleting the disallowance of Rs. 11,85,35,823/- on account of disallowance of non deduction of TDS. 4. Aggrieved by the order of Ld.CIT (A), the assessee has preferred the present Appeal. 5. The Ld. Counsel for the assessee submitted that, the issue involved in the present appeal is recurring in nature which have been decided in favour of the assessee right from Assessment Year 2006-07 to 2013-14 by the Tribunal. Therefore, submitted that the addition made by the A.O which has been deleted by the CIT(A) requires no interference by thesis Tribunal. 3 ITA No. 9364/Del/2019 DCIT Vs. Mitsubishi Corporation India, ND 6. Per contra, the Ld. DR neither disputed the above facts nor produced any contrary decisions in favour of the Revenue. 7. We have heard the parties, perused the material on record and gave our thoughtful consideration. 8. The Ld. A.O during the course of scrutiny assessment proceedings found that the assessee has not deducted TDS on purchases made from group entities which are reproduced hereunder:- S. No. Name and address of the A.E Description of transaction Amount of purchases 1 Mitsubishi Corporation, Japan Import of goods 8,11,45,10,660 2 MC, Energy Inc Import of goods 1,27,86,131 3 Mitsubishi Corporate Hong Kong Ltd. Import of goods 13,17,02,979 4 SPDC Ltd. Import of goods 33,52,02,588 5 Kohjin Life Sciences Co. Ltd. Import of goods 10,29,114 6 Mitsubishi Shoji Chemical Corporation Import of goods 35,88,732 7 Mitsubishi Co (Thailand). Ltd. Import of goods 1,40,19,024 8 Asia Modified Starch Co. Ltd. 79,47,865 TOTAL 8,62,07,87,093/- 9. The Ld. A.O while making the addition has referred the provisions of Section 195 of the Act and the relevant Article of DTAA. The above issue being recurring in nature which has been decided in favour of the assessee by the Tribunal in assessee’s own case for Assessment Year 2006-07 to 2014-15. 4 ITA No. 9364/Del/2019 DCIT Vs. Mitsubishi Corporation India, ND The Co-ordinate Bench of the Tribunal in ITA No. 4535 & 4346/Del/2019 while dealing with the very same issue for the Assessment Year 2014-15 and 2015-16 held as under:- 8. We have carefully perused the order of this Tribunal. This Tribunal has also considered this issue in ITA No.5184/Del/2017 for A.Y.2013-14. The relevant findings read as under :- Following, the decision rendered by coordinate Bench of the Tribunal in assessee’s own ease in AY 2010-11 and the decision rendered by Hon’ble High Court in CIT vs. Herbalife International India (P.) Ltd., wherein the assesses was an intervener, we are of the considered view that AO/DR.P have erred in disallowing of Rs,30,41,71,07,047 regarding purchases made by the assesses from its AEs u/s 40A(i) as section 40A(i) is not applicable to the assesses due to non- discrimination clause under DTAA and due to the fact that AEs do not have a permanent PE in -India. So, the issue is determined in favour of the assessee. Consequently, the appeal Filed by the assesses is hereby allowed. 9. Respectfully following the decision of the coordinate Bench we decline to interfere with the findings of the CIT(A) this ground is accordingly dismissed.” 10. Even in the present Appeal, there is no change in facts and circumstances, that of the earlier Assessment years. Therefore, by respectfully following the decision of the Coordinate Bench, we are declined to interfere with the findings and conclusion of the CIT(A). Accordingly, the grounds of Appeal filed by the Revenue are dismissed. 5 ITA No. 9364/Del/2019 DCIT Vs. Mitsubishi Corporation India, ND 11. In the result, the Appeal filed by the Revenue are dismissed. Order pronounced in the open court on : 12/08/2022. Sd/- Sd/- ( SHAMIM YAHYA ) (YOGESH KUMAR US) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated : 12/08/2022 *R.N* SR. PS Copy forwarded to : 1. Appellant 2. Respondent 3. CIT 4. CIT (Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI.