LIEBHERR CMC TECH I P LTD,PUNE vs. ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE -7,, PUNE

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “C”, PUNE BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER आयकर अपील सं. / ITA No.663/PUN/2022 िनधा�रण वष� / Assessment Year: 2017-18 LIEBHERR CMC Tech. India Vs. ACIT, Circle-7, Pune. Private Limited, Gat No.196/199, Village- Dhaygudewadi, Boripardhi, Taluka- Daund- 412203. PAN : AABCL4052F Appellant Respondent Assessee by : Shri Pramod Shingte Revenue by : Shri Mallikarjun Utture Date of hearing : 07.12.2022 Date of pronouncement 12.12.2022 : आदेश / ORDER PER INTURI RAMA RAO, AM: This is an appeal filed by the assessee directed against the final assessment order passed by the Assessing Officer u/s 143(3) r.w.s. 144C(13) of the Income Tax Act, 1961 (‘the Act’) dated 30.06.2022 for the assessment year 2017-18. 2. The appellant raised the following grounds of appeal :- “On the facts and in the circumstances of case and in the law learned assessing officer erred in making an addition of Rs. 2,32,81,458 being alleged mismatch in the amount of sales turnover as per service tax return and amount reflected in notes of audited financial statements, by assuming that said amount is turnover of the appellant without realizing the facts that this amount represent services availed and

2 ITA No.663/PUN/2022 covered under Reverse Charge Mechanism therefore entire addition needs to be deleted.” 3. The appellant raised the following additional ground of appeal :- “On the facts and in the circumstances of the case and in law the Dispute Resolution Panel (DRP) erred in setting aside the issue of alleged mismatch of service tax turnover, for further enquiry to the Assessing Officer, as the action is in direct violation of provisions of Section 144C(8) of the IT Act, 1961, the order passed by DRP is void ab initio and deserves to be struck down. Your appellant prays accordingly.” 4. Briefly, the facts of the case are as under : The appellant is a company incorporated under the provisions of the Companies Act, 1956. It is engaged in the business of manufacturing, assembling and trading of construction equipment. The Return of Income for the assessment year 2017-18 was filed on 30.11.2017 declaring Rs.Nil income. The assessee company also reported certain international transactions. On noticing international transactions, the Assessing Officer referred the matter to the Transfer Pricing Officer (TPO) for the purpose of benchmarking the international transactions. The TPO vide an order dated 26.10.2020 passed u/s 92CA(3) suggested no TP adjustments. On receipt of the TPO’s order, the Assessing Officer passed a draft assessment order dated 09.08.2021 passed u/s 143(3) r.w.s.

3 ITA No.663/PUN/2022 144C(1) making additions on account of Foreign Remittance Outwards – Rs.3,59,79,133/-; Foreign Remittance Inwards – Rs.16,97,03,512/-; Custom Duty Paid – Rs.1,32,07,537/- and Sales turnover/receipts – Rs.2,32,81,458/- totalling to Rs.24,21,71,640/-. 5. On receipt of the draft assessment order, the appellant filed objections before the ld. DRP objecting the proposed additions. The DRP though held that the appellant cannot challenge the jurisdiction u/s 144C as the appellant is not an eligible assessee, had proceeded with issuing directions to the Assessing Officer in respect to the objection of proposed additions on account of mismatch between the receipts shown in Profit & Loss Account and receipts received as TDS, set-aside the matter to the file of the Assessing Officer for verification and de novo consideration. 6. The provisions of sub-section (8) of section 144C specifically bars the DRP to set-aside any proposed variation or issue as well as any direction for further enquiry, which means the DRP itself should decide the issue after causing any further enquiry, as it deem fit. Thus, the direction of the DRP setting aside the issue to the Assessing Officer is contrary to the mandate of the provisions of sub-section (8) of section 144C and, therefore, the direction of the DRP setting aside the issue is quashed. We remit the matter to the

4 ITA No.663/PUN/2022 file of the DRP to decide the issue afresh in accordance with law after causing necessary enquiry as it thinks fit on its own. 7. In the result, the appeal filed by the assessee stands partly allowed. Order pronounced on this 12th day of December, 2022. Sd/- Sd/- (PARTHA SARATHI CHAUDHURY) (INTURI RAMA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; �दनांक / Dated : 12th December, 2022. Sujeet आदेश क� �ितिलिप अ�ेिषत / Copy of the Order forwarded to : अपीलाथ� / The Appellant. 1. ��यथ� / The Respondent. 2. 3. The DRP-3, Mumbai-2. 4. The Pr. CIT-4, Pune. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, “C” ब�च, 5. पुणे / DR, ITAT, “C” Bench, Pune. गाड� फ़ाइल / Guard File. 6. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune.