Income Tax Appellate Tribunal - Delhi
Acit, New Delhi vs M/S Dsd Noell Gmbh, New Delhi on 26 June, 2018
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH: 'B' NEW DELHI
BEFORE SHRI R.S. SYAL, VICE PRESIDENT
and
SHRI K.NARASIMHA CHARY, JUDICIAL MEMBER
ITA No.562/Del/2015
Assessment Year: 2008-09
ACIT, Circle 1(2)(2), vs DSD Noell Gmbh
(Intl. Taxation), (formerly known as DSD
New Delhi. Industrieanlagen Gmbh),
401, Bhikaji Cama Bhawan,
New Delhi.
PAN: AABCD3024F
Assessee by Ms. Rachna Singh, CIT DR
Respondent by None
Date of Hearing 25.06.2018
Date of Pronouncement 26.06.2018
ORDER
PER K. NARASIMHA CHARY, J.M.
This is an appeal by the Revenue against the orders dated 24.11.2014 in Appeal No. 08/2011-12 passed by the Ld. Commissioner of Income- tax (Appeals)-42, New Delhi (for short hereinafter called "Ld. CITA").
2. Assessee is a non-resident company incorporated under the laws of Germany. The Company had entered into agreements with M/s National Hydroelectric Power Corporation (NHPC) for the execution of Hydro mechanical works of Dhauliganga HE Project Stage-1 in Uttar Pradesh. The said contracts involved supply of plant and equipment, and provisioning of installation and other 2 services. For executing the above contract, the Company opened its project office in India in 2002.
3. Assessee filed its return of Income for the AY declaring an income of Rs.40,57,862/- based on gross receipts of Rs.4,05,78,619/- as per provisions of Section 44BBB of the Income-tax Act, 1961("the Act). During assessment proceedings, the A.O. denied the application of Section 44BBB relying on assessment orders of earlier AYs, on the ground that as the assessee had maintained accounts of the Project Office for the purpose of compliances under the Companies Act, 1956 and therefore its income was to be assessed, on the basis of such accounts, under sub-section (2) of Section 44BBB of the Act. The AO applied average rate of profit of 49% and computed taxable income at Rs.1,98,83,514/- in assessment order dated 28.02.2011.
4. When the assessee carried the matter in appeal, learned CIT(A) followed the order of the Tribunal for the Asstt. Years 2004-05 to 2006-07 in assessee's own case, as confirmed by the jurisdictional High Court and decided the appeal in favour of the assessee. Challenging the relief granted by the learned CIT(A) to the assessee, Revenue preferred this appeal.
5. Learned DR argued that even when the assessee was maintaining the proper accounts in the earlier years, learned CIT(A) ought not to have found that the income of the assessee shall be assessed u/s 44BBB of the Act or the that the same should be assessed at presumptive rate of 10%.
6. Learned AR submitted as the issue involved in this matter is no longer res integra and in assessee's own case for the Asstt. Years 2004-05 to 2006-07, a coordinate bench of this Tribunal held that the income derived from the relevant contract with National Hydroelectric Power Corporation (NHPC) is governed by 3 the provisions of Section 44BBB(1) of the Act and the said finding of the Tribunal was confirmed by the Hon'ble jurisdictional High Court.
7. We have perused the material papers on record. There is no denial of the facts argued by the assessee before the learned CIT(A) that the issue is squarely covered by the order of the Tribunal in assessee's own case for Asstt. Years 2004- 05 to 2006-07 and it was held therein that the income derived under the relevant contract under NHPC has been covered by the provisions of Section 44BBB(1) of the Act or that the said finding was confirmed by the Hon'ble jurisdictional High Court in the appeal filed by the Revenue.
8. In these circumstances, inasmuch the learned CIT(A) based his decisions on the findings of the Tribunal and the Hon'ble jurisdictional High Court, in the absence of any proof that there is no such finding by the Tribunal and the Hon'ble jurisdictional High Court, or that any change of circumstances is there, we do not find any illegality or irregularity in the findings of the learned CIT(A). We, therefore, do not find any reason to interfere with such finding of the learned CIT(A). Findings of the Hon'ble jurisdictional High Court equally bind this Tribunal also. Hence, the grounds of appeal are dismissed.
9. In the result, appeal of the revenue is dismissed.
Order pronounced in the open court on 26th June, 2018
Sd/- sd/-
(R.S. SYAL) (K. NARASIMHA CHARY)
VICE PRESIDENT JUDICIAL MEMBER
Dated: 26 .06.2018
VJ
4
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1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5. DR: ITAT
ASSISTANT REGISTRAR
ITAT NEW DELHI
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