GREAT EASTERN ENERGY CORPORATION LIMITED,GURUGRAM vs. INCOME TAX OFFICER, TDS WARD-1(3)(2), INTERNATIONAL TAXATION-1, DELHI

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘D’, NEW DELHI Before Sh. C. N. Prasad, Judicial Member Dr. B. R. R. Kumar, Accountant Member ITA No. 2446/Del/2023 : Asstt. Year: 2014-15 Great Eastern Energy Corporation Ltd., Vs Income Tax Officer, TDS, Signature Tower-A, 14th Floor, South Ward-1(3)(2), Intl. Taxation, City, NH-8, Gurgaon, Haryana-122001 New Delhi-110002 (APPELLANTT (RESPONDENT) PAN No. AAACG3345F Assessee by : Sh. K. M. Gupta, Adv. Revenue by : Sh. Sanjay Kumar, Sr. DR Date of Hearing: 26.12.2023 Date of Pronouncement: 28.12.2023 ORDER Per Dr. B. R. R. Kumar, Accountant Member: The present appeal has been filed by the assessee against the order of National Faceless Appeal Centre (NFAC), Delhi dated 05.07.2023.

“1. That on the facts and in the circumstances of the case and in law, the order dated July 05, 2023 passed under section 250 of the Income-tax Act, 1961 (‘the Act’) by the Hon’ble Commissioner of Income-tax (Appeals), National Faceless Appeal Centre (‘e-CIT(A)’) is bad in law and void ab initio. 2. That on the facts and in the circumstances of the case and in law, the impugned order passed by the Hon'ble e-CIT(A) under section 250 of the Act is bad in law as the same suffers from jurisdictional errors. 2.1 That on the facts and in the circumstances of the case and in law, the impugned order passed by the Hon'ble e-CIT(A) is without jurisdiction since the

2 ITA No. 2446/Del/2023 Great Eastern Energy Corporation Ltd. appropriate authority to pass the order in the Appellant’s case falls before the Commissioner Income tax (Appeals) - 42 and thus, the order is bad in law and ought to be quashed. 3. That on the facts and circumstances of the case and in law, the Hon’ble e-CIT(A) has erred in passing an order basis incorrect set of facts. 3.1 That on the facts and circumstances of the case and in law, the Hon’ble e-CIT(A) has erred in passing an incorrect order on the incorrect assumption that the Appellant opted for dispute resolution mechanism under Vivad Se Vishwas Act, 2020 ('VSV scheme') for TDS proceedings under section 201(1)/(1A) without appreciating that the Appellant opted for VSV scheme for normal assessment proceedings under section 143(3) of the Act and not in respect of proceedings under section 201(1 )/(1 A) of the Act. Both the proceedings were initiated on different grounds. 4 That on the facts and circumstances of the case and in law, the order passed by the Ld. Income tax Officer, TDS Ward - 1(3)(2), International Taxation - 1 (‘Ld. TDS officer’) under section 201 (1)/(1 A) of the Act in holding the Appellant as 'assessee in default' and raising a demand of INR 2,663,021 is bad in law as the order has been passed in complete disregard to various judicial pronouncements. 5 That the Ld. TDS officer has erred on facts and in law in treating the legal and financial services in respect of Initial Public Offer (“IPO”) rendered by M/s Jones Day, a resident of Singapore to the Appellant amounting to Rs. 63,80,007/- to be in the nature of Fees for Technical / Included Services ('FTS/FIS') under the Double Taxation Avoidance Agreement (‘DTAA’) between India and Singapore. 5.1 That the Ld. TDS officer while doing so has misconstrued the relevant provisions of the DTAA as well as the principles of ‘make available’ as in built in the DTAA to test that such income is liable to be taxed in the hands of recipient as FTS/FIS. 6 That the Ld. TDS officer has erred on facts and in law in treating the legal and financial services in respect of Global Depository Receipts (“GDR”) rendered by M/s Arden Partners Plc, a resident of United Kingdom to the

3 ITA No. 2446/Del/2023 Great Eastern Energy Corporation Ltd. Appellant amounting to Rs. 38,18,070/- to be in the nature of FTS/FIS’ under the DTAA between India and UK. 6.1 That the Ld. TDS officer while doing so has misconstrued the relevant provisions of the DTAA as well as the principles of ‘make available’ as in built in the DTAA to test that such income is liable to be taxed in the hands of recipient as FTS/FIS. 7 That the Ld. TDS officer has erred on facts and in law in treating the legal and financial services rendered by M/s K&L Gates LLP, a resident of United States of America to the Appellant amounting to Rs. 42,74,870/- to be in the nature of FTS/FIS under the DTAA between India and USA. 7.1 That the Ld. TDS officer while doing so has misconstrued the relevant provisions of the DTAA as well as the principles of ‘make available' as in built in the DTAA to test that such income is liable to be taxed in the hands of recipient as FTS/FIS. 7.2 That the Ld. TDS officer has erred on facts and in law in holding that the benefit of India-USA DTAA is not available in respect of payments made to K&L Gates LLP as it is fiscally transparent. 8 That on the facts and circumstances of the case and in law, the Ld. TDS officer completely erred in facts and in law in not appreciating the fact that the provisions of the section 201(1) of the Act itself would not be applicable if there is no obligation to withhold tax under section 195 of the Act. 9 That on the facts and circumstances of the case & in law, the Ld. AO erred in charging interest under section 201(1 A) of the Act.”

4 ITA No. 2446/Del/2023 Great Eastern Energy Corporation Ltd.