EVERSUB INDIA PRIVATE LIMITED,HARYANA vs. DCIT, CIRCLE 7(1), DELHI

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘I’, NEW DELHI BEFORE SH. ANUBHAV SHARMA, JUDICIAL MEMBER AND SH. NAVEEN CHANDRA, ACCOUNTANT MEMBER ITA No. 5451/Del/2024 (Assessment Year : 2021-22) Eversub India Pvt. Ltd. Vs. DCIT 2nd Floor, First India Place Circle – 7(1) situated at Block A, Sushant Delhi Lok Phase-I, Mehrauli Gurgaon Road, Gurgaon PAN No. AAGCS 5808 M (ASSESSEE) (RESPONDENT) Assessee by Shri Vishal Kalra, Adv. Ms. Snigdha Gautam, Adv. Revenue by Shri Dharm Veer Singh, CIT(DR) Date of hearing: 25.03.2026 Date of Pronouncement: 11.06.2026

ORDER PER NAVEEN CHANDRA, ACCOUNTANT MEMBER : The captioned appeal preferred by the assessee is against the order of the Assessing officer, Delhi relating to assessment year 2021- 22 passed under section 143(3) r.w.s. 144C(13) read with section 144B of the Income-tax Act, 1961 (in short “the Act”) order dated 27.09.2024 in pursuance of directions of the Dispute Resolution Panel (DRP) under S. 144C(5) dated 27.08.2024.

ITA No. 5451/DEL/2024 [A.Y 2021-22] Eversub India Pvt Ltd. vs. DCIT 2. The grounds raised by the assessee are as under : “1. That on facts and circumstances of the case and in law, the Assessing Officer, National Faceless Assessment Centre ("AO" / "NFAC") erred in assessing the total income at INR 13,33,42.000 in pursuance to the directions passed by the Hon'ble Dispute Resolution Panel ("DRP") as against the returned loss of INR 9,58,36,024. 2. That on facts and circumstances of the case and in law, the final assessment order passed by the AO is barred by limitation and is bad in law, as it has been passed beyond the time frame prescribed under section 153(1) read with section 153(4) of the Income Tax Act ("Act"). 3. That on facts and circumstances of the case and in law, the final assessment order is bad in law, void ab initio and liable to be quashed as the same has been passed in violation of provisions of section 144C(10) of the Act. 4. That on facts and circumstances of the case and in law, the AO have erred in making a transfer pricing adjustment amounting to INR 22,91,78,024 in respect of international transaction pertaining to availing of services (Administrative services, franchise core business services and real estate leasing core business services) from Associated Enterprise ('AE'). In doing so, the AO has erred in: 4.1. not appreciating that such service fee has already been written back and duly offered to tax by the Assessee in AY 2023-24; 4.2. not appreciating the fact that even the TPO, in its order giving effect to DRP's directions, commented that it has verified the amount written back and taxes paid by the Assessee in AY 2023-24 and consequently held that the adjustment in this regard is to be treated only as protective adjustment until finality of assessment of AY 2023-24 is achieved: 4.3. not appreciating and completely disregarding the directions of DRP as well as the TPO's order pursuant to DRP directions 5. Without prejudice to the above grounds, the AO/TPO have grossly erred in alleging that the transaction pertaining to payment of service fee does not satisfy the arm's length principles holding that the Assessee has not been able to demonstrate requisition and rendition of such services and in doing so have grossly erred in: 5.1. not appreciating the documentation maintained by the Assessee in support of the arm's length price of the international transactions as per the requirements laid out in the Act and Income-Tax Rules, 1962 (Rules'); 5.2. not giving cognizance to the detailed submissions and documentary evidence furnished by the Assessee in relation to receipt of administrative services, franchise core business services and real estate leasing core business services in support of the arm's length nature of the international transaction of payment of service fee; 5.3. rejecting the most appropriate method selected by the Assessee i.e. Transactional Net Margin Method (TNMM') and arbitrarily applying Comparable Uncontrolled Price ("CUP") method, thereby determining

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ITA No. 5451/DEL/2024 [A.Y 2021-22] Eversub India Pvt Ltd. vs. DCIT the arm's length price of the transaction to be nil without bringing on record any comparable uncontrolled transaction price/ data. 6. That on facts and circumstances of the case and in law, the AQ has erred in not granting complete credit of tax deducted at source ("TDS") due to the Assessee. 7. That on facts and circumstances of the case and in law, the AO has erred in charging interest under sections 234A and 2348 of the Act. 8. That on facts and circumstances of the case and in law, the AO has erred in initiating penalty proceedings under section 270A of the Act alleging under reporting of income which is in consequence of misreporting. The Assessee craves leave to add to and/ or to alter, amend, rescind, modify, the grounds herein above or produce further documents before or at the time of hearing of the appeal.”

ITA No. 5451/DEL/2024 [A.Y 2021-22] Eversub India Pvt Ltd. vs. DCIT TPO vide order dated October 06, 2023, proposed an adjustment amounting to INR 22,01,78,074 towards income of the Assessee. The Assessing Officer ("AO"), vide draft assessment order dated November 24, 2023, proposed total assessed income of the Assessee to be INR 22,91,78,074 on account of transfer pricing adjustment proposed by the TPO. Aggrieved, the Assessee approached Dispute Resolution Panel ("DRP"), wherein the DRP vide directions dated August 27, 2024, directed the TPO to verify if the amount of service fee payable to the AE is duly offered to tax in income tax return for AY 2021-22 and make only protective adjustment till the time the assessment of AY 2023-24 reaches finality. The TPO vide order dated September 26, 2024 giving effect to DRP directions, verified and observed that the Assessee has written back amount of service fee payable to the AEs (in each of the years Le. AY 2020-21 and AY 2021-22 respectively) in AY 2023-24 and accordingly, proposed to the AO to make only protective adjustment until the finality of assessment for AY 2023-24. The AO however, proceeded to make an adjustment of INR 22,91,78,074 in final assessment order dated September 27, 2024. Aggrieved, the Assessee has preferred an appeal before the Hon'ble Tribunal. 5. Ground 1 is general and 2 is academic hence not adjudicated.

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ITA No. 5451/DEL/2024 [A.Y 2021-22] Eversub India Pvt Ltd. vs. DCIT 6. Ground 3, 4 & 5 is with respect to the AO not following the DRP directions and thereby violating binding section 144C(10) of the Act. At the outset, the ld AR submitted that the section 144C(10) of the Act, specifically mandates the AO to follow the directions issued by the DRP. It is submitted that the TPO verified the claim of the Assessee and found that the assessee has written back amount of service fee payable to the AEs. The AO however, did not follow the DRP directions and violated the binding provision of section 144C i.e., section 144C(10) of the Act. The ld AR placed his reliance following decisions, wherein the Courts have held that the AO is obliged to pass final order of assessment in accordance with the directions of DRP and the final assessment order not in conformity with the directions is liable to be quashed: -Louis Dreyfus Company India Pvt Ltd vs DCIT: ITA 15381/2022 (Delhi) -PCIT vs Fiberhome India Pvt. Ltd.: ITA 91/2024 (Delhi) -Global One India (P.) Ltd. va DCIT, (2020) 182 ITD 355 (Delhi- Trib) -Olympus Medical Systems (P.) Ltd. va ACIT, (2022) 194 ITD 676 (Delhi-Trib.) -Basware Corporation vs DCIT, [2020] 117 taxmann.com 363 (Chandigarh-Trib -Software Paradigm Infotech Pvt. Ltd. vs ACIT. (2018) 89 taxmann.com 339 (Bangalore-Trib.) -July Systems and technologies Pvt Ltd. vs DCIT, ITA(TP) No. 368/Bang/2016 (Bangalore-Trib.) -Xchanging Solutions Ltd. vs DGIT, (2021) 126 taxmann.com 277 (Bangalore-Trib

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ITA No. 5451/DEL/2024 [A.Y 2021-22] Eversub India Pvt Ltd. vs. DCIT 7. The ld AR stated that pursuant to the approval from the bankers for write-back which was received in FY 2022-23 (le., AY 2023-34), the Assessee has accorded following treatment in the books: Sr. Particulars Amount Reference No. Treatment in A.Y. 2021-22 A Service fee payment 22,91,78,074 Refer page 126/PB for financial statements B TDS deducted and deposited 2,50,26,240 Refer Page 98-110/PB C Amount reflected as payable 20,41,51,784 Refer Page 127/PB for in audited financials financial statements for payable at end of the year FY 2020-21 Treatment in AY 2023-24 D Amount pertaining to AY 18,72,62,202 Refer page 51, 74/PB for the 2020-21, written back & detailed break-up. Refer offered to tax in AY 23-24 page 87-89/PB for financials for AY 23-24. E Amount pertaining to AY 20,41,51,784 Refer page 51, 74/PB for the 2021-22, written back & detailed break-up. Refer offered to tax in AY 23-24 page 87-89/PB for financials for AY 23-24 F Amount pertaining to AY 12,40,18,876 Refer page 51, 74/PB for the 2022-23, written back & detailed break-up. Refer offered to tax in AY 23-24 page 87-89/PB for financials for AY 23-24. G Total amount written back & 51,54,32,862 Refer note 6, 40 at pages offered to tax in AY 23-24 87-89/PB for the audited financials for AY 2023-24 Refer pages 92, 94/PB for the ITR for AY 23-24

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ITA No. 5451/DEL/2024 [A.Y 2021-22] Eversub India Pvt Ltd. vs. DCIT each of the years ie. AY 2020-21 and AY 2021-22 respectively) in AY 2023-24 and proposed to the AO to make only protective adjustment until the finality of assessment for AY 2023-24. The AO, however has made a substantive addition and not protective adjustment as directed by the DRP. In such factual matrix of the instant case, we find it justified that the matter be restored to the file of the AO to follow the direction of the DRP and to verify and examine whether the assessee has offered under section 41(1), the intra group services charges payable, in A.Y. 2023-24. It has been submitted before us that the amount has been returned back and duly offered to tax by the assessee in A.Y. 2023-24. In the event the assessee claim is verified and found correct, no such addition is warranted in the instant year of 2021-22. With this direction the grounds of appeal are disposed off. 10. Ground 7 regarding interest is consequential and ground 8 regarding penalty is premature. 11. In the result, appeal of the assessee ITA No. 5451/DEL/2024 is allowed for statistical purposes. Order pronounced in the open court on 11.06.2026

Sd/- Sd/- (ANUBHAV SHARMA) (NAVEEN CHANDRA) JUDICIAL MEMBER ACCOUNTANT MEMBER Date:- 11.06.2026

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ITA No. 5451/DEL/2024 [A.Y 2021-22] Eversub India Pvt Ltd. vs. DCIT Priti Yadav, Sr. Ps* Copy forwarded to: 1. Assessee 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI

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