Addl. CIT, Dehradun V. M/s Eni India Limited, New Delhi

MA 130/DEL/2018

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 0924 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 7 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-10-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 14-07-2022
• Assessment Year: 2007-2008
• Appeal Filed On: 27-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: THIS APPLICATION PRAYS RECTIFICATION OF DIRECTIONS ISSUED
• Keywords: Set aside

Judgement Text

1 MA no. 130/Del/2018 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “B”: NEW DELHI BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER M.A. No. 130/Del/2018 ( In ITA No. 5091/DEL/2010 & 6416/Del/2012) [Assessment Years: 2007-08 & 2008-09] Asst. Director of Income-tax, International Taxation, Dehradun. Vs M/s Eni India Ltd., 507, Bhikaji Cama Bhavan, Bhikaji Kama Place, New Delhi-110066 PAN: AABCE5205F APPELLANT RESPONDENT Assessee represented by: Sh. Yishu Goel, Adv. Department represented by: Sh. Mrinal Kuma Das, Sr. DR Date of hearing 15.07.2022 Date of pronouncement 13.10.2022 O R D E R PER KUL BHARAT, JM: By way of the present misc. application the Revenue is seeking rectification of the order dated 20 th March, 2017 passed by the ITAT, Delhi Bench “B” in ITA no. 5091/Del/2010 (A.Y. 2007-08) and ITA no. 6416/Del/2012 (A.Y. 2008-09). 2. The Revenue by this application prays for rectification of directions issued by the Tribunal for setting aside the matter to the DRP. As per the Revenue, law does not permit the Tribunal to restore the matter to the learned DRP. Therefore, a prayer is made by the Revenue to restore the matter to the AO instead of DRP. 2 MA no. 130/Del/2018 3. The learned Sr. DR, appearing on behalf of the Revenue Shri Mrinal Kuma Das reiterated the submissions as made in the misc. application. For the sake of clarity the submissions made in the misc. application are reproduced as under: “1. The Hon’ble ITAT vide order dated 20.03.2017. in the above referred case has set aside to the file of the DRP. However, the DRP is empowered by the Act to issue directions only when an ‘Objection' is filed by the assessee against a draft assessment order passed by AO, or a draft assessment order passed during fresh assessment proceedings u/s 144C(21) of the Act. as long as the ‘assessment order’ is not set aside or cancelled and restored to the file of the AO by the Hon’ble ITAT and a ‘fresh draff assessment order is not framed u/s I44C(I) of the Act and consequent thereto an ‘Objection’ is not filed u/s l44C(2)(b)(i) of the Act, the DRP does not have jurisdiction to issue any Direction u/s I44C(5) of the Act. 2. Furthermore, in terms of the provisions of sub-sec. (13) of Sec I44C of the Act the AO has to pass final assessment order within 30 days from the end of the month in which the Directions of DRP under I44C(5) of the Act is received by him. Such an order can be passed where objection is filed by the assessee u/s l44C(2)(b) of the Act, and the limitation is as per Sec 144C( 13). In a situation where the final assessment order u/s 144C(13) is not set aside to the AO, as in the present cases, and the ITAT sets aside the Direction of the DRP directly to the DRP, while the first assessment order remains to be operative, the Act does not lay any limitation for passing ‘fresh’ final assessment order by the AO. 3. In view of the above legal position Hon'ble ITAT may be pleased to set aside the matter to file of Assessing Officer instead of DRP. 4. It is humbly requested that the Miscellaneous Application may please be admitted for recall of the order dated 20.03.2017, in ITA No. 509/Del/20l 0 for A.Y. 2007-08 and ITA No. 6416/Del/2012 in A.Y. 2008-09 in the case of Eni India Ltd. and the appeal may please be adjudicated upon on the merits of the case 4. Per contra, learned counsel for the assessee opposed the submissions and has taken an objection against maintainability of the present application on the ground that the misc. application is barred by time. The Revenue has not filed any 3 MA no. 130/Del/2018 application seeking condonation of delay. Therefore, the misc. application deserves to be dismissed. In support of his contention, learned counsel for the assessee has placed reliance on the decision of the coordinate Bench of the Tribunal rendered in the case of Ms. Shamsunissa Begum Vs. DCIT [2017] 165 ITD 557 (Bangalore- Trib.). 5. In rejoinder, learned DR relied upon the judgment of the Hon’ble Kerala High Court, rendered in the case of N.K. Committing Vs. State Transport Appellate Tribunal of Kerala & Ors. (Writ appeal no. 90 of 1961 decided on 29.05.1962), to buttress the contention that the Tribunal ought not have restored the matter to the file of the learned DRP. 6. We have heard the rival submissions and perused the material available on record. The assessee has taken objection regarding the present application being barred by limitation. As per the assessee, the application should have been filed within six months from the date of the order sought to be rectified. 7. Undisputedly, the order sought to be rectified was pronounced on 20.03.2017. The Revenue has placed on record authorization dated 24.01.2018 whereby the authorization by the Commissioner of Income-tax (International Taxation)-3, New Delhi was made to file the present misc. application. 8. Admittedly, the Revenue has not filed any application seeking condonation of delay. The misc. application filed by the assessee was registered in the Registry on 28.02.2018. The Registry has reported that application is barred by time as the same has not been preferred within six months. Moreover, no explanation as to how the misc. application is within time, has been offered by the Revenue. In the absence of such explanation by the Revenue for filing the application after the time prescribed under the Act, therefore, following the decision of the coordinate Bench 4 MA no. 130/Del/2018 in the case of Ms. Shamsunissa Begum Vs. DCIT (supra), we dismiss the application filed by the Revenue being barred by time. 9. In the result, misc. application filed by the Revenue is dismissed. Order pronounced in open court on 13 th October, 2022. Sd/- Sd/- (PRADIP KUMAR KEDIA) (KUL BHARAT) ACCOUNTANT MEMBER JUDICIAL MEMBER *MP* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI