M/s Lahmeyer International GmbH, Gurgaon V. DDIT, New Delhi

MA 74/DEL/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 9136 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2004-2005
• Appeal Filed On: 26-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAY KATARIA
• Section: 234B; 254(2)

Judgement Text

1 M.A NO. 74/DEL/2020 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: FRIDAY NEW DELHI BEFORE SH. R. K. PANDA, ACCOUNTANT MEM BER AND MS SUCHITRA KAMBLE, JUDI CIAL MEMBER MA NO. 7 4/DEL/2020 IN (I.T.A. NO. 2124/DEL/2 009 (A.Y 2004-05) M/S LAHMEYER INTERNATIONAL GMBH, C/O. LAHMEYER INTERNATIONAL (INDIA) PRIVATE LTD. INTEC HOUSE-37, INSTITUTIONAL AREA, SECTOR-44, GURGAON-122002 PAN: AAACL6802E (APPLICANT) VS ACIT CIRCLE-2(1), INTERNATIONAL TAXATION, DRUM SHAPED BUILDING, NEW DELHI (RESPONDENT) APPLICANT BY SH. A. T. PANDA, ADV & SH. SATYEN SETHI, ADV RESPONDENT BY SH. VIJAY KATARIA, SR. DR ORDER PER SUCHITRA KAMBLE, JM THIS MISCELLANEOUS APPLICATIONS IS FILED BY THE ASS ESSEE IN RESPECT OF ORDER DATED 09.10.2019 PASSED BY THE TRIBUNAL. 2. THE LD. AR FILED THE PRESENT MISCELLANEOUS APPLI CATION WHICH STATED AS UNDER:- APPLICATION UNDER SECTION (U/S') 254(2) OF THE INC OME TAX ACT. 1961 (THE ACT) FOR RECTIFICATION OF INADVERTENT MISTAKE IN THE ORD ER DATED 9.10.2019 1. THAT THE CAPTIONED APPEALS WERE DISPOSED OF VIDE O RDER DATED 9.10.2019, DATE OF HEARING 30.07.2021 DATE OF PRONOUNCEMENT 09.08.2021 2 M.A NO. 74/DEL/2020 WHEREBY, APPEALS FOR THE AYS 2001-02 TO 2005-06 WER E DISPOSED OF. APPEALS FOR THE AYS 2001-02 AND 2003-04 WERE ALLOWED AND TH E APPEALS FOR THE AYS 2002-03, 2004-05 AND 2005-06 WERE PARTLY ALLOWED. 2. IN THE AYS 2004-05 AND 2005-06, FOLLOWING FOUR (4) IDENTICAL GROUNDS WERE RAISED BEFORE THE HON'BLE TRIBUNAL: BY GROUND NO. L, GRIEVANCE OF THE ASSESSEE WAS THA T SECTION 44BBB OF THE ACT WAS APPLICABLE TO THE REVENUE DERIVED FROM PROJ ECT WITH JAIPRAKASH INDUSTRIES LTD (U IL '). BY GROUND NOS.2 AND 3, TAXABILITY OF REVENUE @ 20% FROM CONTRACTS WITH MPCPL, AP TRANSCO AND VIWSCL WAS AGITATED. BY GROUND NO.4, LEVY OF INTEREST U/S 234A, 234B AND 234C OF THE ACT WERE DISPUTED. 3. GROUND NO. L IN BOTH THE AYS I.E. 2004-05 AND 2005 -06 HAS BEEN DISMISSED BY THE HON'BLE TRIBUNAL OBSERVING THAT: 'NOW WE ARE TAKING UP JTA NO.2124/DEI/2009 FOR AY20 04-05 AND ITA NO.2125/DE!/2009 FOR A Y2005-06 AS THE GROUNDS ARE IDENTICAL. AS REGARDS TO GROUND NO.L, THE LD. AR'S FAIRLY CONCEDED THAT T HE ABOVE GROUND IS AGAINST THE ASSESSEE. HENCE GROUND NO.L OF THE ASSESSEE'S A PPEAL IS DISMISSED.' 4. IT IS SUBMITTED THAT ON THE ISSUE OF APPLICABILITY OF SECTION 44BBB TO THE REVENUE DERIVED FROM PROJECT WITH JIL, DETAILED SUB MISSIONS WERE MADE. IT WAS INTER-ALIA SUBMITTED IN THE SYNOPSIS FILED ON 1 7.10.2018 {PARA 8 TO 10.8 OF SYNOPSIS) THAT: OMKARESHWAR HYDROELECTRIC POWER PROJECT IN MP, A T URNKEY POWER PROJECT APPROVED BY THE CENTRAL GOVT, WAS AWARDED TO JIL AN D VOITH SIEMENS HYDRO. 3 M.A NO. 74/DEL/2020 JIL AS CONSORTIUM LEADER WAS RESPONSIBLE FOR DESIGN , MANUFACTURE, SUPPLY ERECTING, TESTING AND COMMISSIONING OF HYDRO-MECHAN ICAL WORKS. FOR PLANNING, DESIGN & ENGINEERING WORK, JIL APPROVED T HE ASSESSEE AT PRE- QUALIFICATION STAGE ITSELF. ON 18.8.2003, ASSESSEE ENTERED INTO AN AGREEMENT WITH JIL IN TERMS OF WHICH ASSESSEE WAS TO PROVIDE DETAILED PLANNING, CIVIL DESIGN & ENGINEERING SERVICES INCLUDING HYDROLOGY, HYDROLICS AND GEO-TECH ENGINEERING IN CONNECTION WITH OMKARESHWAR HYDROELE CTRIC POWER PROJECT. AS SUCH, THE ASSESSEE WAS PART OF THE PROJECT TEAM ENG AGED IN TURNKEY CON- STRUCTION OF POWER PLANT. SECTION 44BBB OF THE ACT WAS APPLICABLE BECAUSE CIV IL DESIGN AND ENGINEERING WORK IS INTEGRAL PART OF CONSTRUCTION OF POWER PROJ ECT. WITHOUT DESIGN AND ENGINEERING WORK, CONSTRUCTION OF POWER PROJECT COU LD NOT HAVE COMMENCED. THE BENEFIT OF SECTION 44BBB, WHICH IS A SPECIAL PR OVISION CANNOT BE DENIED FOR THE REASON THAT IN GENERAL THE REVENUE EARNED I S FTS U/S 9(L)(VII). REFERENCE WAS ALSO MADE TO PIT V. DSD NELL GMBH (20 11) 333 ITR 304 (DEL). WITHOUT PREJUDICE, IT WAS SUBMITTED THAT CIVIL DESI GN & ENGINEERING WORK IN RELATION TO CONSTRUCTION OF POWER PROJECT WAS IN TH E NATURE OF TECHNICAL SERVICE AND THAT THE ACTIVITIES OF THE ASSESSEE WERE NOT SU PERVISORY ACTIVITIES IN CONNECTION WITH INSTALLATION, ASSEMBLY PROJECT AND THAT RATIO OF GFA ANLAGENBAU GMBH V. DY. DIT (2014) 47 TAXMANN.COM 31 3 (HYD) IS SQUARELY APPLICABLE. ' 5. EVEN IN THE SYNOPSIS DATED 9.1.2019, FILED IN RESP ONSE TO SUBMISSIONS DATED 9.11.2018 OF THE CIT(DR), THE APPLICANT ASSES SEE HAD RELIED UPON ITS SYNOPSIS FILED ON 17.10.2018. 6. AFFIDAVIT OF MR. SATYEN SETHI, ADVOCATE, WHO REPRE SENTED THE MATTER BEFORE HON'BLE TRIBUNAL, SWEARING ON OATH THAT THE GROUND RELATING TO APPLICABILITY OF SECTION 44BBB OF THE ACT WAS ARGUED, IS ENCLOSED. 4 M.A NO. 74/DEL/2020 7. IN VIEW OF THE ABOVE, AN INADVERTENT MISTAKE APPAR ENT FROM RECORD HAS CREPT-IN, IN THE OTHER ORDER DATED 9.10.2019, TO TH E EXTENT GROUND NO. 1 IN ITA NO. 2124 AND 2125/DEL/2009 HAS BEEN DISMISSED AS HA VING CONCEDED IN FAVOUR OF DEPARTMENT. 3. THE LD. DR DID NOT OPPOSE THE SUBMISSIONS OF THE LD. AR. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED ALL T HE RELEVANT RECORDS. IN PARA 19 AT PAGE 45, THE SUBMISSIONS OF THE LD. AR W AS MISTAKENLY MENTIONED AS CONCEDED, BUT THE LD. AR FAIRLY SUBMITTED THAT T HE ISSUE CONTESTED IN GROUND NO. 1 OF THE APPEAL IS AGAINST THE ASSESSEE. THEREFORE, THERE IS AN APPARENT MISTAKE WHICH NEEDS TO BE RECTIFIED. THUS, THE PRESENT MISC. APPLICATION IS ALLOWED. THUS, IN PARA 19 AT PAGE 45 OF THE ORDER DATED 09.10.2019 THE PARAGRAPH IS REPRODUCED AND RECTIFIE D AS UNDER:- 19. NOW WE ARE TAKING UP ITA NO. 2124/DEL/2009 FOR A.Y. 2004-05 AND ITA NO. 2125/DEL/2009 FOR A.Y. 2005-06 AS THE GROUN DS ARE IDENTICAL. AS REGARDS TO GROUND NO. 1, THE LD. AR FAIRLY SUBMITTE D THAT THE ABOVE GROUND IS AGAINST THE ASSESSEE. HENCE, GROUND NO. 1 OF THE ASSESSEES APPEAL IS DISMISSED. 5. IN RESULT, MISCELLANEOUS APPLICATION FILED BY TH E ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 09 TH DAY OF AUGUST, 2021 SD/- SD/- (R. K. PANDA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL M EMBER DATED: 09/08/2021 R. NAHEED COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 5 M.A NO. 74/DEL/2020 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI