Income Tax Appellate Tribunal - Delhi
Shimizu Corporation, Delhi, India vs Deputy Commissioner Of Income Tax ... on 24 May, 2024
Author: G.S. Pannu
Bench: G.S. Pannu
आयकर अपीलीय अिधकरण
िद ी पीठ "डी", िद ी
ी जी.एस. प ू , उपा एवं
ी िवकास अव थी, ाियक सद के सम
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH "D", DELHI
BEFORE SHRI G.S. PANNU, VICE PRESIDENT &
SHRI VIKAS AWASTHY, JUDICIAL MEMBER
SA Nos. 154 to 159/Del/2024
(Arising out of ITA Nos. 1860 to 1865/Del/2024, A.Ys.2013-14 to 2018-19)
Shimizu Corporation
130, Sarojini Market,
Delhi 110023.
PAN: AAJCS1575N ...... आवेदक/Applicant
बनाम Vs.
Deputy Commissioner of Income Tax
(International Taxation)-3(1)(2), New Delhi ..... ितवादी/Respondent
अपीलाथ ारा/ Appellant by
: S/Shri Ajay Vohra, Sr. Advocate with
Ansul Sachhar & Tavish Verma, Advocates
ितवादी ारा/Respondent by : Shri Vivek Kumar Upadhyay, Sr. DR
सुनवाई क ितिथ/ Date of hearing : 24/05/2024
घोषणा क ितिथ/ Date of pronouncement : 24/05/2024
आदेश/ORDER
PER VIKAS AWASTHY, JM:
These applications by the assessee for assessment years 2013-14 to 2018- 19 are for seeking stay of recovery of outstanding demand for the respective assessment years.
2SA Nos. 154 to 159/Del/2024
2. Shri Ajay Vohra, appearing on behalf of the assessee, submits that the assessee is engaged in construction of Turnkey Civil/ Factory Building & Interior Fittings across the globe including India. For undertaking the said work, the assessee has setup project offices in India. The Department initiated reassessment proceedings in A.Ys 2013-14 to 2018-19 and issued notices u/s. 148 of the Act under erstwhile provisions. The primary issue in reassessment proceedings is salary paid to seconded employees reimbursed by Shimizu India Pvt. Ltd. The TPO held reimbursement of salary expenses as 'fee received for technical services'. The AO and DRP held that, the reimbursement received by the assessee is taxable in India as the assessee is having project office in India which constitutes a Permanent Establishment (PE) in India. The ld. Counsel for the assessee contended that the aforesaid assessment order is unsustainable as it suffers from limitation. He pointed that in pursuance to the decision of Hon'ble Supreme Court of India in the case of Union of India vs. Ashish Agarwal reported as 138 taxmann.com 64 (SC), the notices issued under erstwhile provisions of section 148 were later deemed to be notices issued under new Section 148A(b) of the Act. He asserted that the reassessment proceedings are time barred as the final assessment order has been passed beyond the period of limitation. To support his contentions he placed reliance on the decision in the case of Anindita Sengupta vs. CIT in W.P.(C) 12542/2022 decided by the Hon'ble Delhi High Court. He further submitted that the AO has erred in come to the conclusion that the payments received by the assessee from Shimizu India is taxable as business income on which tax is to be computed in accordance with provisions of Section 44BBB of the Act. The provisions of Section 44BBB are not applicable to the 3 SA Nos. 154 to 159/Del/2024 assessee. The said provisions provide for presumptive taxation @10% of amount paid/payable to a foreign company engaged in the business of civil construction or engaged in the business of erection of plant & machinery or testing or commissioning thereof, in connection with turnkey power projects approved by the Central Govt. Whereas, the assessee undertakes civil/factory building and interior fit out works not in connection with turnkey power projects and the contracts entered into by the assessee are not approved by the Central Govt. or the Department of Power under the Ministry of Energy. To support his contentions, he placed reliance on the decision in the case of CIT vs. Shandong Tiejun Electric Power Engineering Co. 86 taxmann.com 274 (Guj.). The ld. Counsel submitted that the assessee has prima facie good case on merits as well as on jurisdictional issue.
3. Per contra, Shri Vivek Kumar Upadhyay, Sr. DR representing the Department vehemently opposed the stay applications filed by the assessee for the impugned assessment years. The ld. DR further stated that, if at all stay is to be granted, the assessee should be asked to deposit minimum 20% of the total outstanding demand for each of the assessments years under appeal.
4. We have heard the submissions made by rival sides. After having preliminary look at the issues raised in appeal, prima facie, we are of view that the assessee has good case on jurisdictional issue as well as on merits. A specific query was made to the ld. Counsel for the assessee during the course of hearing regarding deposit of 20% of the outstanding demand. After seeking instructions from the assessee, he made statement at Bar that the assessee is willing to 4 SA Nos. 154 to 159/Del/2024 furnish indemnity bond cum undertaking to the extent of 20% of the total outstanding demand. Taking into consideration entire facts, the recovery of outstanding demand in the impugned assessment years is stayed subject to assessee furnishing security in the form of indemnity bound cum undertaking to the satisfaction of Assessing Officer equal to the amount of 20% of the outstanding demand. Subject to assessee furnishing security as aforesaid for each of the assessment years under appeal, the recovery of balance amount in the respective assessment years shall remain stayed for a period of 180 from the date of this order or till the disposal of appeal(s), whichever is earlier.
5. In the result, stay applications of the assessee are allowed in the terms aforesaid.
Order pronounced in the open court on Friday the 24 th day of May, 2024.
Sd/- Sd/-
(G.S. PANNU) (VIKAS AWASTHY)
उपा य /Vice President याियक सद य/JUDICIAL MEMBER
िद ी / Delhi, दनांक/Dated 24/05/2024
NV/-
ितिलिप अ िे षतCopy of the Order forwarded to :
1. अपीलाथ /The Appellant ,
2. ितवादी/ The Respondent.
3. The PCIT
4. िवभागीय ितिनिध, आय.अपी.अिध., िद ी /DR, ITAT, िद ी
5. गाड फाइल/Guard file.
NV/-
5
SA Nos. 154 to 159/Del/2024
BY ORDER,
//True Copy//
(Dy./Asstt. Registrar) ITAT, DELHI