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Income Tax Appellate Tribunal, “I” BENCH, MUMBAI
These cross appeals are arising out of the order of the Commissioner of Income Tax (Appeals)]-XXXI, Mumbai, [in short CIT(A)], in appeal No. CIT(A) XXXI/ADIT (IT) 1(2)/IT-Director of Income Tax (International Taxation) 1(2), Mumbai (in short ADIT/ AO), for the A.Y. 2001-02 vide order dated 24.03.2004 under section 143(3) of the Income-tax Act, 1961 (hereinafter referred to as ‘the Act’).
The learned Counsel for the assessee submitted that the appeal filed against the assessment order under section 143(3) of the Act is infructuous hence, requested for withdrawal. The letter read as follows:- “Dear Sirs, Re: DHL Operations B.V. merged with DHL International GmbH („DHLI‟ / „the Appellant‟) PAN – AADCD0913D Assessment Year („AY‟) – AY 2001-02 Appellant‟s Appeal Number – 1481/Mum/2005 Department‟s Appeal Number – 113/Mum/2005 Sub: Notice issued for scheduling hearing on 8 April 2021 – Request for withdrawal of appeal The Appellant had filed its Return of Income on 10 October 2001 declaring NIL income.
The scrutiny assessment under Section 143(3) of the Income-tax Act, 1961 („the Act‟) was completed and an order dated 24 March 2004 was passed by the Assessing officer. The Assessing officer in the order under Section 143(3) of the Act concluded that the Appellant has business connection in India and also constitutes Permanent Establishment under Article 5 of India – Netherlands tax treaty („the Tax Treaty). Accordingly, Appellant‟s income as computed by the Assessing officer from outbound consignment (Rs. 8,16,43,341) and income from inbound consignment (Rs. 6,21,54,344) is taxable in India.
The Appellant had filed an appeal before the Hon‟ble Commissioner of Income-tax i) Income from outbound consignment is not taxable; and ii) Income from inbound consignments is taxable and given the partial relief on the quantum of income from inbound consignment Appellant and the Department both have filed an appeal against the said order in 2005, Appellant‟s appeal number – 1481/Mum/2005 and Department‟s appeal number – 113/Mum/2005 and the same are pending before your honour for hearing.
The assessment under section 143(3) of the Act was reopened under section 148 of the Act and the assessing officer vide order under Section 143(3) read with Section 147 of the Act dated 26 December 2007 (copy of reassessment order is enclosed as Annexure i) Income taxable as Royalty - Rs. 5,10,66,976 ii) Income taxable as Fees for Technical Services – Rs. 25,53,34,884; and iii) Taxable Business income – Rs. 1,93,03,316.
The Appellant has filed a letter on 6 February 2008 for non-filing of appeal stating that it‟s not in agreement with the conclusions drawn by the assessing officer in the reassessment order, however, in order to buy peace with the tax department, the Appellant is not filing any appeal against the said order. The copy of the letter is enclosed as Annexure.
In the light of the above, the Appellant submits that the re-assessment order dated 26 December 2007 passed under Section 143(3) read with Section 147 of the Act will survive and the assessment order under Section 143(3) of the Act dated 24 march 2004 will be subsumed with the Sd/- Sd/- (एभ. फारगणेश / M. BALAGANESH) (भहावीय ससिंह /MAHAVIR SINGH) (रेखा सदस्म / ACCOUNTANT MEMBER) (उऩाध्मऺ / VICE PRESIDENT) भुिंफई, ददनािंक/ Mumbai, Dated: 13.05.2021 सुदीऩ सयकाय, व. ननजी सचिव/ Sudip Sarkar, Sr.PS