Income Tax Appellate Tribunal - Delhi
Addl. Cit, Special Range- 4, New Delhi vs Goodyear India Ltd., Faridabad on 12 March, 2021
1 M.A No. 597/Del/2019
IN THE INCOME TAX APPELLATE TRIBUNA
DELHI BENCH: 'FRIDAY 'C' NEW DELHI
BEFORE SH. N. K. BILLAIYA, ACCOUNTANT MEMBER
AND
MS SUCHITRA KAMBLE, JUDICIAL MEMBER
M.A. No. 597/Del/2019
In
(I.T.A. No. 7716/Del/2017 A.Y. 2013-14)
Jt. Commissioner of Income Tax Vs Goodyear India Ltd.
Special Range-04 Mathura Road, Ballabgarh
Delhi District-Faridabad
Haryana-121004 AAACG3511H
(APPLICANT) (RESPONDENT)
Applicant by Md. Gayasuddin Ansari, Sr.
DR
Respondent by Sh. Neeraj Jain, Adv
Date of Hearing 12.03.2021
Date of Pronouncement 12.03.2021
ORDER
PER SUCHITRA KAMBLE, JM
This Miscellaneous Application u/s 254(2) of the Income-tax Act, 1961 read with Rules 24 & 34A of Income Tax Appellate Tribunal Rules, 1963 has been filed by the Revenue in respect of order dated 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-04, 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 respect of Transfer pricing issues and corporate issues.
i) Addition/Disallowance on Corporate Issues.
a) Disallowance out of repair and maintenance expense
b) Disallowance on account of Brand Building expense 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 Adjustment
3. Regarding the Transfer Pricing issue, the Hon'ble ITAT has allowed die appeal of the assessee and with regard to Corporate issues, the Hon'ble 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 Aside/Good Year/2018- 19/262 dated 17.10.2018 was received from the office 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 Appellate Tribunal can set aside an assessment order directly to the Pie of the 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 paras-1 to 4 above, I am directed by the panel to con vey that miscellaneous needs to be tiled on the ground that the assessment order was not to be remitted back to the tile of DRP, The Hon'ble 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 remanding the matter to the DRP without any legal provision in this regard.
4. In view of the above, context, the DRP is empowered by the Act to issue directions only when an objection filed by the assessee against a draft assessment order passed by the AO, or a draft assessment 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 appealable 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 thereto an objection is not filed u/s 144C(2)(b)(i) of the Act, the DRP does not 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 considered view that there is no provision under the Act whereby the Appellate Tribunal can set aside an assessment order directly to the file of the DRP. Further, 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 application is being filed on the ground that the assessment order was not to be remitted 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. Therefore, this Miscellaneous Application is not just and proper.
4. We have heard both the parties and perused the material 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 restore Ground No.5, 6 & 7 to the file of the DRP/A.O. for adjudication as per provisions of the Act. Thus, there is no ambiguity and the Assessing Officer has to act as per the directions given by the Tribunal. Hence, the Miscellaneous Application filed by the Revenue is not tenable and the same is dismissed.
5. In result, Miscellaneous Application is dismissed. Order pronounced in the Open Court in presence of both the parties on this 12th Day of March, 2021.
Sd/- Sd/-
(N. K. BILLAIYA) (SUCHITRA KAMBLE)
ACCOUNTANT MEMBER JUDICIAL MEMBER
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