DOOSAN POWER SYSTEMS INDIA PVT. LTD.,GURGAON vs. DCIT, NEW DELHI

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ITA 6199/DEL/2012Status: DisposedITAT Delhi04 December 2015AY 2008-094 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal found inconsistency in the selection of comparable companies by both the assessee and the Revenue across different assessment years. Consequently, the issue was set aside for fresh adjudication by the Transfer Pricing Officer (TPO).

What were the facts?

The assessee, a subsidiary of a South Korean EPC contractor, provides engineering design and consultancy services to its associated enterprises. The appeals concern the selection of comparable companies for transfer pricing adjustments in assessment years 2008-09 and 2010-11.

What were the issues?

The primary issue was the inconsistent selection of comparable companies for transfer pricing analysis by both the assessee and the Revenue, leading to a lack of uniformity in the assessment process.

Which sections of the Income-tax Act were involved?

Section 143(3)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, DELHI BENCH:‘I-2’ NEW DELHI

Before: SHRI J.S. REDDY & SMT. BEENA A. PILLAI

For Respondent: Smt. Mitali Madhusmita, CIT DR
Hearing: 08.10.2015Pronounced: 04.12.2015

PER BENCH: This are appeals filed by the assessee against the assessment order dated 30.01.2015, of ld. DCIT, Circle 10(1) and DCIT Circle 7(2) dated 27.02.2015, u/s 143(3) of I.T. Act, 1961 for A.Y. 2008-09 and 2010-11 respectively. 2. Brief facts as recorded by the Ld.AO are as under; The assessee is a subsidiary of Doosan Heavy Industries & Construction Limited (hereinafter referred to as “DHIC”), South Korea. DHIC is a major Engineering, Procurement, Construction (“EPC”) contractor, providing services that include engineering design, basic material fabrication, equipment installation, and commissioning and facility construction.

1.

2.1 The Appellant assessee is engaged in provision of engineering drawings, design and consultancy services (engineering design and related services) to its Associated Enterprises (“AEs”) in relation to the thermal, nuclear and hydro power plant projects undertaken by these AEs.

3.

After hearing the rival contentions, we find that the assessee has selected different set of comparables for both the assessment years. When questioned by the Bench, as to why the assessee is not consistent with the selection of comparable companies in both the years, though the facts are the same, the ld. Counsel submitted that different auditors were employed for both the years and they 2 had they had selected different set of comparables for these years. On a further question, we are informed that the TPO for both the assessment years selected different set of comparables 3.1. On examination, we find that neither the assessee, nor the Revenue is consistent in their approach. In fact on a further query, we are informed that, for assessment year 2011-12, which is not before us today, the assessee had yet another auditor, resulting in certain other companies being selected as comparables. The revenue has also taken a different approach than what was done in the previous two assessment years. Thus the assessee as well as Revenue has selected different sets of comparables for these three assessment years. 3.2. The inconsistent approach, both by the assessee as well as the Revenue, cannot be countenanced. Thus we deem it fit and proper to set aside the issue de novo to the files of the ld.TPO for fresh adjudication in accordance with law. The assessee shall file a fresh TPO report for both the assessment years, taking a consistent stand and the TPO shall examine the same afresh. 9. The appeals filed by the assessee in both the assessment years stands statistically allowed.

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