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Income Tax Appellate Tribunal, ‘D’ BENCH, CHENNAI
Before: SHRI V. DURGA RAO, HON’BLE & SHRI MANJUNATHA. G, HON’BLE
आदेश /O R D E R
PER MANJUNATHA. G, ACCOUNTANT MEMBER:
This appeal filed by the assessee is directed against the order passed by the learned Commissioner of Income Tax (Appeals)-16, Chennai, dated 24.01.2017 and pertains to assessment year 2012-13.
:-2-: ITA. No: 358/Chny/2017 2. At the outset, we find that there is delay of 317 days in filing of appeal before the Tribunal, for which a petition for condonation of delay along with affidavit explaining reasons has been filed. The ld. Counsel for the assessee, referring to petition filed by the assessee submitted that the assessee has challenged the assessment order dated 30.01.2016 before the CIT(A), instead of Tribunal. The CIT(A), dismissed appeal filed by the assessee vide their order dated 24.01.2017 by holding that appeal filed by the assessee is infructuous and not maintainable. Thereafter, the assessee has filed a fresh appeal before the Tribunal which caused the delay of 317 days. However, said delay is neither intentional nor to derive any undue benefit. Therefore, in the interests of justice, delay may be condoned.
On the other hand, the Ld. DR present for the revenue opposing petition filed by the assessee submitted that the reasons given by the assessee for condonation of delay does not come under reasonable cause and thus, appeal filed by the assessee should be dismissed.
:-3-: ITA. No: 358/Chny/2017 4. We have heard both parties and considered relevant contents of the petition filed by the assessee and after considering reasons given by the assessee for not filing the appeal within the time allowed under the Act, we find that there is a reasonable cause for not filing appeal, because the assessee by mistaken of law, filed appeal before the CIT(A) instead of Tribunal. However, on dismissal of appeal by the CIT(A), the assessee has filed appeal before the Tribunal. In our considered view, the delay of 317 days for filing appeal is neither intentional nor to derive any undue benefit, but purely beyond the control of the assessee and thus, we condone the delay in filing of appeal and admit the appeal filed by the assessee for adjudication.
The assessee has raised the following grounds of appeal: “1. The order of the Deputy Commissioner of Income Tax, International Taxation - 2(2), Chennai dated 30.01.2016 for the above assessment year is contrary to law, facts, and in the circumstances of the case. 2. The DCIT erred in making the addition of Rs.1,66,75,264/- representing 20% of the off-shore supply aggregating to Rs.8,33,76,320/- on the presumption of accrual of such income in the computation of taxable total income without assigning proper reasons and justification. 3. The DCIT failed to appreciate that the accrual/reckoning of income from the off-shore supply under the charging provisions of the Act was wrong, erroneous, unjustified, incorrect and not sustainable in law.
:-4-: ITA. No: 358/Chny/2017
The DCIT failed to appreciate that the submissions filed on 12.12.2015 were not taken in consideration in proper perspective by the DRP while passing the order/direction u/s 144C (5) of the Act and ought to have appreciated that the mechanical adoption of the directions was wholly unjustified. 5. The DCIT failed to appreciate that the findings recorded in the DRP's order/directions and in the impugned order were not sustainable in law, thereby vitiating the addition made in the impugned order passed u/s 143(3) r/w section 144C(13) of the Act. 6. The DCIT failed to appreciate that the order under consideration as well as the directions of DRP were passed out of time, invalid, passed without jurisdiction and not sustainable both on facts and in law. 7. The DCIT failed to appreciate that there was no proper opportunity given before passing of the impugned order and any order passed in violation of the principles of natural justice would be nullity in law. 8. The Appellant craves leave to file additional grounds/arguments at the time of hearing.”
The brief facts of the case are that the assessee, a foreign company is a resident of United Arab Emirates (UAE) and has a project office in India. The assessee was awarded a contract by Neyveli Lignite Corporation Ltd in 2010 to put up a Desalination Plant and Water Treatment Plant. The assessee filed its return of income for the assessment year 2012-13 on 29.09.2012, admitting total income of Rs. 1,22,17,180/- and said return has been revised on 08.01.2013 and declared total income of Rs. 1,25,85,956/-. The case was selected for
:-5-: ITA. No: 358/Chny/2017 scrutiny and the assessment has been completed u/s. 143(3) r.w.s. 144C(13) of the Income-tax Act, 1961 (hereinafter referred to as “the Act”) on 30.01.2016 and determined total income of Rs. 2,92,58,220/- by making additions of Rs. 1,66,75,264/-, being 20% income towards direct offshore supply operations of Rs. 8,33,76,320/-. Aggrieved by the assessment order, the assessee preferred an appeal before the Tribunal.
We have heard both the parties, perused materials available on record and gone through orders of the authorities below. At the time of hearing, the ld. Counsel for the assessee Shri. S. Sridhar, Advocate and Dr. S. Palanikumar, CIT-DR, appearing for the revenue, fairly agreed that the issue needs to go back to the file of the Assessing Officer to decide the issue of profit attribution towards gross receipts from direct offshore supply service. Therefore, considering the request of both the Counsels, we set aside the issue to the file of the AO and direct the AO to reconsider the issue, denovo, in accordance with law, after providing reasonable opportunity of hearing to the assessee. Needless to say, the assessee shall furnish necessary details to justify its case.
:-6-: ITA. No: 358/Chny/2017
In the result, appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the court on 22nd March, 2023 at Chennai. Sd/- Sd/- (वी दुगा� राव) (मंजुनाथ. जी) (V. DURGA RAO) (MANJUNATHA. G) �याियकसद�य/Judicial Member लेखासद�य/Accountant Member चे�ई/Chennai, �दनांक/Dated: 22nd March, 2023 JPV आदेश क� �ितिलिप अ�ेिषत/Copy to: 1. अपीलाथ�/Appellant 2. ��यथ�/Respondent 3. आयकर आयु� (अपील)/CIT(A) 4. आयकर आयु�/CIT 5. िवभागीय �ितिनिध/DR 6. गाड� फाईल/GF