POSCO INDIA CHENNAI STEEL PROCESSING CENTRE PRIVATE LIMITED,KANCHIPURAM vs. ACIT CORPORATE CIRCLE 5(2), CHENNAI

Sh. Vikram Vijayaraghavan, Advocate represented on behalf of the assessee and Ms. S. Vijayaprabha, JCIT represented on behalf of Revenue.

At the time of hearing, it was submitted by the Ld. A.R. that the assessee has filed the appeal against the directions of the DRP on the ground that the assessee had not been granted adequate opportunity to substantiate its case before the TPO. It was submission that originally the transfer pricing order was passed by the TPO which was the subject matter before the DRP. The DRP had restored the issues to the file of the TPO for adjudication. It was a submission that though the assessee had produced evidences before the TPO, on account of shortage of time, the TPO could not examine all the evidences and had reiterated his order. It was a submission that the same was the subject matter before the DRP and the DRP had confirmed the same. It was a submission that the assessee was praying for restoration of issues before the TPO for re-adjudication. It was a submission that a demand of ₹8.65 Crores has been raised on the assessee and the assessee is facing financial difficulty for making payment of disputed taxes. It was a prayer that the appeal of the assessee may be disposed of and the issues restored to the file of the TPO for re-adjudication.

In reply, the Ld. D.R. vehemently supported the orders of the A.O. and TPO. It was a submission that the stay of recovery was not liable to be granted to the assessee. It was also a submission that the assessee had already been granted an opportunity before the TPO and repeated opportunities ought not to be given.

We have heard rival submissions. A perusal of the order of the DRP in F.No.265/DRP-2/BANG/2016-17/ dated 11.09.2017 shows that in paragraph No.7 at pages 5 and 6 of the DRP order, the DRP has extracted the TPO’s remand report. In the said remand report, the TPO mentions that the information furnished before the TPO is incomplete and consequently no conclusion could be drawn. A perusal of para 9.5 of the TPO’s order dated 31.10.2016 shows that the assessee has asked for time which has not been granted. In these circumstances, in the interest of natural justice, the issues in this appeal are restored to the file of the A.O. for re-adjudication after obtaining the Transfer Pricing issue re- adjudicated by the TPO after granting the assessee adequate opportunity to substantiate its claim in respect of the Transfer Pricing issues. It is recognized by us that on earlier occasion, the DRP had restored the issue to the file of the TPO. But, as it has been claimed that adequate opportunity and time was not granted to 4 S.P. No.311/Mds/17 the assessee, the assessee was unable to comply with the directions. In these circumstances, as a last opportunity, the issues raised in this appeal are restored to the file of the A.O. for re- adjudication.

In the result, the appeal filed by the assessee is partly allowed for statistical purposes.

As we have already disposed the appeal, the Stay Petition becomes infructuous and stands dismissed.