Income Tax Appellate Tribunal - Delhi
Nxp India Pvt. Ltd (Formerly Known As ... vs Acit, Circle- 18(2), New Delhi on 3 August, 2018
1 S. A No. 548/Del/2018
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH: 'I-2' (FRIDAY) NEW DELHI
BEFORE SHRI N. K. BILLAIYA, ACCOUNTANT MEMBER
AND
MS SUCHITRA KAMBLE, JUDICIAL MEMBER
S. A NO. 548/Del/2018
In
(ITA No. 5140/DEL/2018 ( A.Y 2014-15)
NXP India Pvt. Ltd. (Formerly Vs ACIT
known as Freescale Circle-(18(2)
Semiconductor India Pvt. Ltd.) C. R. Building
Plot No. 2 & 3, Sector-16A, New Delhi
Noida
AAACZ1978P (RESPONDENT)
(APPELLANT)
Appellant by Sh. Vishal Kalra, Adv
Respondent by Sh. Surender Pal, Sr. DR
Date of Hearing 03.08.2018
Date of Pronouncement 03.08.2018
ORDER
PER SUCHITRA KAMBLE, JM
This Stay Application is filed by the assessee against the outstanding demand of Rs. 14,47,92,210/- raised by the Revenue.
2. The Ld. AR submitted that the assessee has filed the appeal whereby challenging the order dated 19.06.2018 passed u/s 143(3) r.w.s. 144C of the Income Tax Act, 1961. The Ld. AR further submitted that the assessee has prima facie case on merit. The Ld. AR submitted that the assessee company is a captive service provider and carries out development services on the basis of specifications and tools provided by the AEs. The assessee does not own 2 S. A No. 548/Del/2018 intangibles and bears normal risk as all its costs (direct or indirect) are fully reimbursed alongwith mark up 10% of cost. The Ld. AR submitted that certain entities selected by the TPO are incomparable in terms of function, risk and assets employed, and those selected by the assessee have been incorrectly rejected by the TPO. Thus, there is no merit in adjustment made by the TPO on account of provision of software development services by the assessee. Thus, the Ld. AR submitted that the assessee has good case on merit. Besides this, the Ld. AR submitted that in earlier A.Y.s 2008-09, 2009-10, 2010-11 and 2012-13, this issue is covered in favour of the assessee by this Tribunal. The Ld. AR further submitted that the total demand paid by the Assessee company is Rs. 18,43,45,000/- for the demand recovered pursuant to earlier year ITAT stay order which was 13,03,00,000/- Therefore, the Ld. AR requested to adjust the amount paid of Rs. 18,43,45,000/- in earlier year against the demand raised in the present Assessment Year. Thus, the Ld. AR requested to grant stay of the outstanding tax demand of Rs. 14,47,92,210/- and further requested to grant early hearing.
3. The Ld. DR opposed this stay application.
4. We have heard both the parties. We are of the view that this is a fit case for granting stay and early hearing. It is pertinent to note that the total refund due to the Assessee company is Rs. 18,43,45,000/- and the demand can be adjusted against the refund due to the assessee of Rs. 14,47,92,210/- Therefore, it will be appropriate to adjust the refund of Rs. 18,43,45,000/- in earlier year against the demand raised in the present Assessment Year. The assessee has a prima facie case on merit. Therefore, we are inclined to grant stay for six months (180 days) or till the disposal of appeal whichever is earlier. The assessee is advised not to take adjournment of hearing of appeal otherwise the stay will automatically get vacated. We are also granting early hearing in the main appeal being ITA No. 5140/Del/2018. The registry is directed to place 3 S. A No. 548/Del/2018 appeal for hearing on 18.10.2018. Dasti of the order be given to both the parties.
5. In result, the stay application is allowed.
Order pronounced in the Open Court on 03rd August, 2018.
Sd/- Sd/-
(N. K. BILLAIYA) (SUCHITRA KAMBLE)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated: 03/08/2018
R. Naheed
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5. DR: ITAT
ASSISTANT REGISTRAR
ITAT NEW DELHI
4 S. A No. 548/Del/2018
Date of dictation 03.08.2018
Date on which the typed draft is placed before the 03.08.2018 dictating Member Date on which the typed draft is placed before the Other Member Date on which the approved draft comes to the Sr. PS/PS Date on which the fair order is placed before the Dictating Member for pronouncement Date on which the fair order comes back to the Sr. 3 .08.2018 PS/PS Date on which the final order is uploaded on the 3.08.2018 website of ITAT Date on which the file goes to the Bench Clerk 3.08.2018 Date on which the file goes to the Head Clerk The date on which the file goes to the Assistant Registrar for signature on the order Date of dispatch of the Order