Dover India Pvt. Ltd., Bangalore V. Commissioner of Income-tax - 1,

ITA 962/PUN/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7522 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 22-06-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NIRUPAMA KOTRU
• Assessee Lawyers: SUMIT SUHANDA
• Keywords: Transfer pricing; International transaction; Wholly owned subsidiary
• Section: 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE . . . . , , BEFORE SHRI D.KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO. 962/PUN/2015 / ASSESSMENT YEAR : 2008-09 DOVER INDIA PRIVATE LIMITED, BAGMANE LAUREL, IST FLOOR, C BLOCK, BAGMANE TECH. PARK, C.V. RAMAN NAGAR, BANGALORE. PAN : AAACI3920N . /APPELLANT V/S CIT - I, PUNE . /RESPONDENT ASSESSEE BY : SHRI SUMIT SUHANDA REVENUE BY : SHRI NIRUPAMA KOTRU, CIT / ORDER PER D. KARUNAKARA RAO, AM : THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE R EVISION ORDER OF PR.CIT- I, PUNE DATED 31-03-2015 FOR THE ASSESSMENT YEAR 20 08-09. 2. BRIEFLY STATED RELEVANT FACTS ARE THAT THE ASSES SEE IS AN WHOLLY OWNED SUBSIDIARY OF DOVER (SWITZERLAND) HOLDING LLC. IT OPERATES DIFFERENT DIVISIONS VIZ, OPW-FUELLING COMPONENTS, HEAIL TRAILER, DESTAC O AND WILDEN PUMPS DIVISION AND SOFTWARE DIVISION AND OPW-FLUID TRANSF ER DIVISION. ASSESSEE FILED E-RETURN OF INCOME ON 29-09-2008 DECLARING TOTAL LO SS OF RS.1,84,92,189/-. ASSESSEE MADE INTERNATIONAL TRANSACTIONS WITH ITS A SSOCIATED ENTERPRISES AT RS.24,48,61,300/- TPO DID NOT ACCEPT THE BENCHMARK ING OF INTERNATIONAL / DATE OF HEARING : 05.09.2017 / DATE OF PRONOUNCEMENT: 05.09.2017 2 ITA NO.962/PUN/2015 DOVER INDIA PRIVATE LIMITED TRANSACTIONS DONE BY THE ASSESSEE WITH ITS ASSOCIAT ED ENTERPRISES AND MADE AN UPWARD ADJUSTMENT OF RS.59,57,455/-. DRP MADE A N ADJUSTMENT OF RS.33,14,189 ON ACCOUNT OF INTERNATIONAL TRANSACTIO NS DONE BY THE ASSESSEE WITH ITS ASSOCIATED ENTERPRISES. AGGRIEVED, THE AS SESSEE IS IN APPEAL BEFORE US. THE SAID ORDER WAS REVISED BY THE PR.CIT VIDE HIS ORDER DATED 31-03-2015 U/S.263 OF THE ACT. HOWEVER, THE FRESH ASSESSMENT ORDER WAS NOT MADE U/S.143(3) R.W.S. 263 OF THE ACT. 3. BEFORE US, AT THE OUTSET, ON THE SAID ISSUE, LD. COUNSEL FOR THE ASSESSEE DEMONSTRATED THAT THE FRESH ASSESSMENT ORDER, WHICH SHOULD HAVE BEEN PASSED IN A TIME BOUND MANNER, WAS NEVER PASSED IN THIS CASE. THEREFORE, IN EFFECT, IT IS A CASE OF NON DETERMINATION OF LOSS T O THE DEPARTMENT. THE LOSS OF REVENUE IS NEVER CRYSTALLIZED. THE ORDER PASSED BY THE AO ORIGINALLY WAS NEVER CONCLUSIVELY HELD PREJUDICIAL TO THE LOSS OF REVENUE AS NO SUCH LOSS IS EVERY QUANTIFIED. 4. IN REPLY, LD. DEPARTMENTAL REPRESENTATIVE FOR T HE REVENUE, AFTER MAKING NECESSARY ENQUIRIES WITH THE CONCERNED AO, M ENTIONED THAT NO FRESH ASSESSMENT ORDER WAS EVER PASSED BY THE AO U/S.263 R.W.S. 143(3) OF THE ACT. EXPLAINING THE REASONS, LD. DR FOR THE REVENU E SUBMITTED THAT THERE IS PROCEEDINGS RELATING TO TRANSFER OF ASSESSMENT FILE S FROM BANGALORE AND THE OFFICERS LOST SIGHT OF THE PENDING ACTIONS INCLUDIN G THE PENDING FRESH ASSESSMENT PROCEEDINGS. 5. AFTER HEARING BOTH THE PARTIES, WE ARE OF THE OP INION THAT IT IS A CASE WHERE THE REVENUE FAILED TO DEMONSTRATE THAT THE OR DER PASSED BY THE AO ORIGINALLY IS NOT PREJUDICIAL TO THE INTEREST OF RE VENUE. NO ADDITIONAL REVENUE IS BROUGHT TO TAX ON ACCOUNT OF DIRECTIONS GIVEN BY THE PR.CIT IN THE REVISION ORDER. THEREFORE, WE ARE OF THE OPINION THAT IT IS A CASE WHERE THE ASSESSEE 3 ITA NO.962/PUN/2015 DOVER INDIA PRIVATE LIMITED DID NOT HAVE ANY GRIEVANCE IN EFFECT. IN THIS REGA RD, WE PERUSED THE LETTER FILED BY THE ASSESSEE DT. 05-09-17 WHEREIN HE REQUE STED FOR DISMISSING OF THE APPEAL AS INFRUCTUOUS. RELEVANT PARA IS EXTRACTED AS UNDER : THE ABOVE MENTIONED APPEAL IS AGAINST THE ORDER U/ S 263 OF THE ITA, 1961 DATED 31/03/2015. DURING THE COURSE OF THE ITAT HEA RING, APPELLANT WAS DIRECTED TO F I ND OUT, WHETHE R THE APPELLANT IS IN RECEIPT OF ORDER U/S 143(3) R . W . S. 263 OF THE ITA , 1961 . IN THIS REGARDS, IT IS C L ARIFIED AND CONFIRMED THAT APPELLANT HAS NOT RECEIVED THE SAID ORDER TILL DATE . FURTHER APPELLANT SUBMITS THAT, AS PER THE PROVISION OF SECTION 153(2A) OF TH E ITA, 1961, ORDER 143(3) R . W.S 263 OF THE ITA,1961 HAS TO BE PASSED WITHIN ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH ORDER U/S 263 OF THE IT A,1961 IS PASSED BY PR . CIT. AS SUCH, NON-RECEIPT OF ORDER U/S 143(3) R . W.S. 263 OF THE ITA , 1961 MAKES THE ORDER U/S 263 OF THE ITA, 1961 INFRUCTUOUS/ INE FFECTIV E. 6. IN VIEW OF THE ABOVE, WE HAVE CONSIDERED THE COU NSELS REQUEST FOR TREATING THE APPEAL AS INFRUCTUOUS FAVOURABLY. ACC ORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE ARE DISMISSED AS INFRUCTUOUS. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 5 TH DAY OF SEPTEMBER, 2017. SD/- SD/- (VIKAS AWASTHY) (D. KARUNAKARA RAO) /JUDICIAL MEMBER / ACCOUNTANT MEMBER PUNE; DATED : 5 TH SEPTEMBER, 2017. COPY OF THE ORDER FORWARDED TO : / BY ORDER , // TRUE COPY // //TRUE COPY// SENIOR PRIVATE SECRETARY , / ITAT, PUNE 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT - I, PUNE 4. DCIT, CIRCLE - 1(2), PUNE/JCIT (TP) - II, PUNE 5. , , B BENCH PUNE; 6. GUARD FILE.