ADDL. CIT, SPECIAL RANGE- 4, NEW DELHI v. GOODYEAR INDIA LTD., FARIDABAD

MA 597/DEL/2019 | 2013-2014
Pronouncement Date: 12-03-2021 | Result: Dismissed

Appeal Details

RSA Number 59720124 RSA 2019
Assessee PAN AAACG3511H
Bench Delhi
Appeal Number MA 597/DEL/2019
Duration Of Justice 1 year(s) 8 month(s) 4 day(s)
Appellant ADDL. CIT, SPECIAL RANGE- 4, NEW DELHI
Respondent GOODYEAR INDIA LTD., FARIDABAD
Appeal Type Miscellaneous Application
Pronouncement Date 12-03-2021
Appeal Filed By Department
Order Result Dismissed
Bench Allotted I1
Tribunal Order Date 12-03-2021
Assessment Year 2013-2014
Appeal Filed On 08-07-2019
Judgment Text
1 M.A NO. 597/DEL/2019 IN THE INCOME TAX APPELLATE TRIBUNA DELHI BENCH: FRIDA Y C NEW DELHI BEFORE SH. N. K. BILLAIYA ACCOUNTANT MEMBER AND MS SUCHITRA KAMBLE JUDI CIAL MEMBER M.A. NO. 597/DEL/2019 IN (I.T.A. NO. 7716/DEL/2017 A.Y. 2013-14) JT. COMMISSIONER OF INCOME TAX SPECIAL RANGE-04 DELHI (APPLICANT) VS GOODYEAR INDIA LTD. MATHURA ROAD BALLABGARH DISTRICT-FARIDABAD HARYANA-121004 AAACG3511H (RESPONDENT) APPLICANT BY MD. GAYASUDDIN ANSARI SR. DR RESPONDENT BY SH. NEERAJ JAIN ADV ORDER PER SUCHITRA KAMBLE JM THIS MISCELLANEOUS APPLICATION U/S 254(2) OF THE IN COME-TAX ACT 1961 READ WITH RULES 24 & 34A OF INCOME TAX APPELLATE TR IBUNAL RULES 1963 HAS BEEN FILED BY THE REVENUE IN RESPECT OF ORDER DATE D 27/02/2018 PASSED BY THE TRIBUNAL. 2. THE LD. DR SUBMITTED AS UNDER:- 2 . IN THIS REGARD THE IT AT BENCH C VIDE ITS ORDER DATED 27.02.2018 IN ITA NO. 7716/DEL./2017 IN THE CASE OF ADDL.CIT RANGE-0 4 DELHI VS. M/S GOODYEAR INDIA LIMITED FOR DIE A.Y. 2013-14 HAS PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. ADDITION/DISALLOWANCE WAS MADE IN RES PECT OF TRANSFER PRICING ISSUES AND CORPORATE ISSUES. I) ADDITION/DISALLOWANCE ON CORPORATE ISSUES. A) DISALLOWANCE OUT OF REPAIR AND MAINTENANCE EXPE NSE B) DISALLOWANCE ON ACCOUNT OF BRAND BUILDING EXPENS E DATE OF HEARING 12.03.2021 DATE OF PRONOUNCEMENT 12.03.2021 2 M.A NO. 597/DEL/2019 C) DISALLOWANCE U/S 36(1) (VA) OF DIE ACT (II) ADDITIONS ON TRANSFER PRICING ISSUES A) ADDITION ON ACCOUNT OF TRANSFER PRICING ADJUSTME NT 3. REGARDING THE TRANSFER PRICING ISSUE THE HON'B LE ITAT HAS ALLOWED DIE APPEAL OF THE ASSESSEE AND WITH REGARD TO CORPORATE ISSUES THE HONBLE ITAT HAS SET ASIDE THE ISSUES TO THE FILE OF THE DRP/AO FOR ADJUDICATION AFTER PROVIDING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. IN ABOVE CONNECTION A LETTER F.NO. DRP-L/SET AS IDE/GOOD YEAR/2018- 19/262 DATED 17.10.2018 WAS RECEIVED FROM THE OFFIC E OF THE SECRETARIAT OF DISPUTE RESOLUTION PANEL NEW DELHI (COPY ENCLOSED) WHEREIN THE FOLLOWING HAS BEEN STATED: ...4. IN VIEW OF THE LEGAL POSITION THIS PANEL IS OF THE CONSIDERED VIEW THAT THERE IS NO PROVISION UNDER THE ACT WHEREBY THE APP ELLATE TRIBUNAL CAN SET ASIDE AN ASSESSMENT ORDER DIRECTLY TO THE PIE OF TH E DRP. FURTHER THE DRP IS NEITHER EMPOWERED TO ISSUE ANY DIRECTION U/S 144C(5) OF THE ACT IN A CASE SET ASIDE BY THE HON'BLE ITAT DIRECTLY TO THE DRP NOR IS THERE ANY LIMITATION LAID DOWN BY THE ACT FOR ISSUANCE OF ANY DIRECTION U/S 144C/5) OF THE ACT IN SUCH CIRCUMSTANCES. 5. IN VIEW OF THE LEGAL POSITION AS STATED AT PA RAS-1 TO 4 ABOVE I AM DIRECTED BY THE PANEL TO CON VEY THA T MISCELLANEOUS NEEDS TO BE TILED ON THE GROUND THAT THE ASSESSMENT ORDER WAS NOT TO BE REMITTED BACK TO THE TILE OF DRP THE HONBLE ITAT MAY SET-ASIDE THE ASSESSMENT ORDER TO ASSESSING OFFICER. ALTERNATIVELY AN APPEAL U/S 260A OR WRIT PETITION BEFORE THE HIGH COURT MAY BE CONSIDERED CHALLENGING THE ITATS ACTION OF REMANDIN G THE MATTER TO THE DRP WITHOUT ANY LEGAL PROVISION IN THIS REGARD. 4. IN VIEW OF THE ABOVE CONTEXT THE DRP IS EMPOWE RED BY THE ACT TO ISSUE DIRECTIONS ONLY WHEN AN OBJECTION FILED BY THE ASSE SSEE AGAINST A DRAFT ASSESSMENT ORDER PASSED BY THE AO OR A DRAFT ASSES SMENT ORDER PASSED DURING THE FRESH ASSESSMENT PROCEEDINGS U/S 144C(1 ) OF THE ACT OF THE ACT. FURTHER WHILE THE DIRECTIONS OF THE DRP ARE NOT AP PEALABLE U/S 253 OF THE ACT AS LONG AS THE ASSESSMENT ORDER IS NOT SET ASIDE OR CANCELLED AND RESTORED TO THE FILE OF DIE AO BY THE HON'BLE ITAT AND A FRESH DRAFT ASSESSMENT ORDER IS NOT FRAMED U/S 144C(1) OF THE ACT AND CONSEQUENT TH ERETO AN OBJECTION IS NOT FILED U/S 144C(2)(B)(I) OF THE ACT THE DRP DOES NO T HAVE JURISDICTION TO ISSUE ANY DIRECTION U/S 144C(5) OF THE ACT. FURTHERMORE EVEN NO LIMITATION FOR ISSUING DIRECTION BY THE DRP HAS BEEN LAID DOWN IN TERMS OF THE PROVISIONS OF SECTION 153(2A) OF THE ACT IN A SITUATION WHERE THE HON'BLE ITAT SET ASIDE AN 3 M.A NO. 597/DEL/2019 ASSESSMENT ORDER DIRECTLY TO THE FILE OF THE DRP. 5. IN VIEW OF THE LEGAL POSITION IT IS A CONSIDERE D VIEW THAT THERE IS NO PROVISION UNDER THE ACT WHEREBY THE APPELLATE TRIBU NAL CAN SET ASIDE AN ASSESSMENT ORDER DIRECTLY TO THE FILE OF THE DRP. F URTHER THE DRP IS NEITHER EMPOWERED TO ISSUE ANY DIRECTION U/S 144(5) OF THE ACT IN A CASE SET ASIDE BY THE HON'BLE ITAT DIRECTLY TO THE DRP NOR IS THERE ANY LIMITATION LAID DOWN BY THE ACT FOR THE ISSUANCE OF ANY DIRECTION U/S 144C( 5) OF THE ACT IN SUCH CIRCUMSTANCES. 6. IN VIEW OF THE ABOVE A MISCELLANEOUS APPLICATI ON IS BEING FILED ON THE GROUND THAT THE ASSESSMENT ORDER WAS NOT TO BE REMI TTED BACK TO THE FILE OF THE DRP AND THAT THE HON'BLE ITAT MAY SET-ASIDE THE ASSESSMENT ORDER TO TIRE FILE OF THE ASSESSING OFFICER. 3. THE LD. AR SUBMITTED THAT THE TRIBUNAL HAS GIVEN A CLEAR FINDING THAT THE MATTER MAY BE RESTORED TO THE FILE OF DRP/AO. THER EFORE THIS MISCELLANEOUS APPLICATION IS NOT JUST AND PROPER. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. AFTER GOING THROUGH THE ORDER DATED 27/02/ 2018 WE ARE OF THE OPINION THAT THE TRIBUNAL HAS GIVEN A CLEAR FINDING TO REST ORE GROUND NO.5 6 & 7 TO THE FILE OF THE DRP/A.O. FOR ADJUDICATION AS PER PROVIS IONS OF THE ACT. THUS THERE IS NO AMBIGUITY AND THE ASSESSING OFFICER HAS TO AC T AS PER THE DIRECTIONS GIVEN BY THE TRIBUNAL. HENCE THE MISCELLANEOUS APPLICAT ION FILED BY THE REVENUE IS NOT TENABLE AND THE SAME IS DISMISSED. 5. IN RESULT MISCELLANEOUS APPLICATION IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT IN PRESENCE OF B OTH THE PARTIES ON THIS 12 TH DAY OF MARCH 2021 . SD/- SD/- (N. K. BILLAIYA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEM BER DATED: 12/03/2021 R. NAHEED * 4 M.A NO. 597/DEL/2019 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI