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Income Tax Appellate Tribunal, “J” BENCH, MUMBAI
O R D E R
PER PAVAN KUMAR GADALE JM:
The assessee has filed the appeal against the order passed u/s 143(3) r.w.s 144C(13) of the Act in pursuance to the directions of the DRP u/s 144C(5) of the Act dated 28.08.2009. The assessee has raised the following grounds of appeal:
Torrent Petrochem ltd.,, Mumbai. - 2 -
The company Blue Cross Road Solutions limited has been incorporated under companies Act 1956, the company is into trading of goods related to road constructions and related products and is been doing this activity since incorporation and during the proceedings with DRP -2 against the order passed by A.O., the DRP-2 wrongly confirmed the demand raised by the A.O. and assessed income of Rs. 15,92,45,149/- u/s 144C(5) which is prejudicial in the interest of the company for which Appeal has been sought and the grounds of appeals is as below. The Learned A.O. had originally passed the order confirming the transaction with sister concern as income which was referred to DRP-2 which in turn confirmed the order on the technical ground that the change of name from Torrent Petrochem Limited to Bluecross Road Solutions Limited and stated that the ground that filing of 35A and verification by the Director using the NON- Existence name and incorrect seal, was no proper and valid, hence the application in form 35A is required to be treated ás non est. and objection filed in FORM 35A in this case is dismissed without considering the given the fact and submission the order was wrongly passed assessing the income to Rs. 15,92,45,149/-. The Appellant craves to add, to amend, alter or vary the grounds of appeal at or before the hearing of the appeal
At the time of hearing, it was brought to the knowledge that the assessee has filed the appeal on 2.12.2019, subsequently the appeal was posted for hearing on 07.07.2021, 07.09.2021, 3.11.2021, 09.05.2022, 12.07.2022, 14.07.2022, 08.12.2022 and Torrent Petrochem ltd.,, Mumbai. - 3 - none appeared on the dates of hearing and even today i.e on 12.12.2022 there is no appearance. We consider the facts and the action of the assessee in non appearance on the dates of hearing and the presumption is that after filling the appeal, the assessee is not inclined/ interested to prosecute the appeal. Accordingly, we heard the Ld. DR submissions and considered the material information available on record.
The brief facts of the case are that the assessee company is engaged in the business of import, trading /dealing in bitumen, fabrics, textile goods, ferrous and non ferrous material and scrap. The assessee has filed the return of income for the A.Y 2015-16 on 30.1.2015 disclosing a total income of Rs. 15,91,620/- and the Book profits of Rs. 11,22,153/- under the provisions of sec. 115JB of the Act and the return of income was processed u/s 143(1) of the Act. Subsequently, the Assessing Officer(AO) has issued notice u/s 143(2) and 142(1) of the Act along with the questionnaire. The AO found that the assessee has Torrent Petrochem ltd.,, Mumbai. - 4 - international transactions with the Associated Enterprises (AE) exceeding Rs. 15 Crores, and therefore the matter was referred to Transfer Pricing Officer (TPO) to determine the Arms Length Price(ALP). Whereas the TPO has passed the order u/sec92CA(3) of the Act on 18.10.2018 with ALP adjustment of Rs.15,92,45,149/- Subsequently the draft assessment order was passed u/s 143(3) r.w.s 144C(1) of the Act and was forwarded to the assessee. Against the draft assessment order the assessee has filed objections before the Hon’ble Dispute Resolution Panel (DRP). Whereas the objections raised by the assessee were dismissed in limine and the DRP has passed the order u/s 144C(5) of the Act on 28.08.2019. The A.O. considering the directions of the DRP, has passed the final Assesseement order observing at page 6 Para 9 as under:
The order u/s 92CA(3) of the IT Act dated 18.10.2018 was passed after taking into account the assessee's contentions raised in the course of transfer pricing proceedings before transfer pricing officer. Hence, in view of the order passed u/s 92CA(3) dated
Torrent Petrochem ltd.,, Mumbai. - 5 -
18.10.2018, a sum of Rs. 15,92,45,149/- is being added to the total income of the assessee on account of the Transfer Pricing adjustments as above in accordance with the provisions of Section 92CA(4) of the Income Tax Act, 1961. In light of the facts of the case and findings made by ACIT, Transfer Pricing, 4(2)(2), Mumbai in the order u/s 92CA(3) dated 18.10.2018, it clearly emerges that assessee company has furnished inaccurate particulars of Income. The penalty proceedings u/s.271(1)(c) of the 1.T. Act are being initiated separately for furnishing inaccurate particulars. Further, as mentioned above, the assessee has failed to keep and maintain information and documents as required by sub section (1) of section 92 (D) of the Income Tax Act, 1961, penalty proceedings u/s.271AA are being initiated separately for non compliance to the provisions of section 92C of the Income Tax Act, 1961. Similarly, as the assessee has failed to furnish a report from accountant as required by Section 92E of the Income Tax Act, 1961, penalty proceedings u/s 271BA are being initiated separately for non compliance to the provisions of section 92D of the Income Tax Act, 1961. Further, as the assessee has also failed to furnish information/document as required by sub section (3) of Section 92D, penalty proceedings u/s. and 271G of the IT Act 1961 are also being separately initiated for non compliance to the provisions of Sec. 92E of the Act in respect of above stated specified domestic transactions. i. Income from Business or profession 15,91,917 Addition U/s 92CA(3) 15,92,42,149
Gross Total income 16,08,37,066 Less: Deduction U/s Chapter VIA Nil Torrent Petrochem ltd.,, Mumbai. - 6 -
Total Income 16,08,37,660 Rounded off to 16,08,37,070 MAT Calculation u/s 115JB of the Act Book Profit (As per compaction) 11,22,153 Addition u/s 92CA 15,92,42,149 Total income 16,03,67,302 16,03,67,300 Rounded off to 4. Aggrieved by the order, the assessee has filed an appeal before the Hon’ble Tribunal.
We heard the Ld.DR submissions and perused the material available on record. The contentions of the Ld.DR that that the assessee has filed the objections in the Form.no 35A in the none existing name and the verification was carried out by the director using the incorrect seal of the assessee and the objections filed are treated as no nest and was dismissed in limine by the DRP. The facts enumerated from the DRP order that the assessee name Torrent Petrochem Limited was changed to Torrent Industries Ltd and further w.e.f 10-02-2017 was changed to Blue Cross Road Solutions Limited. Whereas the assessment order was Torrent Petrochem ltd.,, Mumbai. - 7 - also passed in the name of the non existing company. We considering the facts and circumstances find that there are no merits in the grounds of appeal and are dismissed.
In the result, the appeal filed by the assessee is dismissed.
Order pronounced in the open court on 19.12.2022.