EIH LTD.,KOLKATA vs. THE DCIT, CIR-8(1), KOLKATA, KOLKATA

In the result, the appeal of the assessee is partly allowed for statistical purposes and the appeal of the revenue is dismissed

Bench: Hon’Ble Shri Aby. T. Varkey, Jm & Shri M.Balaganesh, Am ] I.T.A No. 153/Kol/2016 Assessment Year : 2011-12 Dcit, Circle-8(1), Kolkata -Vs- M/S Eih Limited [Pan: Aaace 6898 B] (Appellant) (Respondent) I.T.A No. 110/Kol/2016 Assessment Year : 2011-12 M/S Eih Limited -Vs- Dcit, Circle-8(1), Kolkata [Pan: Aaace 6898 B] (Appellant) (Respondent) For The Appellant : Shri Kanchun Kaushal,Ar For The Department : Shri G.Mallikarjuna, Cit Dr Date Of Hearing : 26.10.2017 Date Of Pronouncement : 12.01.2018 Order Per Bench:

TDS provisions are not applicable in respect of the aforesaid payments. The ld AO observed that the aforesaid payments squarely falls under section 33 A.Yrs.2011-12 194J of the Act in as much as these directors had not offered the commission and sitting fees income under the head ‘income from salary’ in their returns of income and instead they

DCIT, CIR-8(1), KOLKATA, KOLKATA vs. M/S EIH LTD., KOLKATA

In the result, the appeal of the assessee is partly allowed for statistical purposes and the appeal of the revenue is dismissed

Bench: Hon’Ble Shri Aby. T. Varkey, Jm & Shri M.Balaganesh, Am ] I.T.A No. 153/Kol/2016 Assessment Year : 2011-12 Dcit, Circle-8(1), Kolkata -Vs- M/S Eih Limited [Pan: Aaace 6898 B] (Appellant) (Respondent) I.T.A No. 110/Kol/2016 Assessment Year : 2011-12 M/S Eih Limited -Vs- Dcit, Circle-8(1), Kolkata [Pan: Aaace 6898 B] (Appellant) (Respondent) For The Appellant : Shri Kanchun Kaushal,Ar For The Department : Shri G.Mallikarjuna, Cit Dr Date Of Hearing : 26.10.2017 Date Of Pronouncement : 12.01.2018 Order Per Bench:

TDS provisions are not applicable in respect of the aforesaid payments. The ld AO observed that the aforesaid payments squarely falls under section 33 A.Yrs.2011-12 194J of the Act in as much as these directors had not offered the commission and sitting fees income under the head ‘income from salary’ in their returns of income and instead they

DCIT, CENTRAL CIRCLE - 2(1), KOLKATA , KOLKATA vs. M/S. PAHARPUR COOLING TOWERS LTD., , KOLKATA

Bench: Shri S.S.Godara & Dr. A.L.Saini

92B of the Act. All these corresponding grounds fail therefore. The Revenue’s 8th to 9th and 11th to 12th substantive grounds in all these 17. three appeal(s) seek to revive the TPO’s proposed action and Assessing Officer’s ALP adjustment of interest amount of ₹83,71,497/-, ₹279,79,306 and ₹170,64,590/-; respectively as deleted

DCIT, CENTRAL CIRCLE - 2(1), KOLKATA , KOLKATA vs. M/S. PAHARPUR COOLING TOWERS LTD., , KOLKATA

Bench: Shri S.S.Godara & Dr. A.L.Saini

92B of the Act. All these corresponding grounds fail therefore. The Revenue’s 8th to 9th and 11th to 12th substantive grounds in all these 17. three appeal(s) seek to revive the TPO’s proposed action and Assessing Officer’s ALP adjustment of interest amount of ₹83,71,497/-, ₹279,79,306 and ₹170,64,590/-; respectively as deleted

DCIT, CENTRAL CIRCLE - 2(1), KOLKATA , KOLKATA vs. M/S. PAHARPUR COOLING TOWERS LTD., , KOLKATA

Bench: Shri S.S.Godara & Dr. A.L.Saini

92B of the Act. All these corresponding grounds fail therefore. The Revenue’s 8th to 9th and 11th to 12th substantive grounds in all these 17. three appeal(s) seek to revive the TPO’s proposed action and Assessing Officer’s ALP adjustment of interest amount of ₹83,71,497/-, ₹279,79,306 and ₹170,64,590/-; respectively as deleted

EIH LIMITED ,KOLKATA vs. DCIT, NFAC, DELHI

In the result, both the appeals of the assessee are partly allowed

Bench: SHRI RAJPAL YADAV, VICE PRESIDENT SHRI SANJAY AWASTHI (Accountant Member)

92B does not enlarge the scope of the term 'international transaction' to include the Corporate Guarantee in the nature provided by the assessee therein. The Tribunal held that in case of default, Guarantor has to fulfil the liability and therefore, there is always an inherent risk in providing guarantees and that may be a reason that Finance provider insist

EIH LIMITED,KOLKATA vs. D.C.I.T., INCOME TAX DEPARTMENT, NFAC, DELHI, KOLKATA

In the result, both the appeals of the assessee are partly allowed

Bench: SHRI RAJPAL YADAV, VICE PRESIDENT SHRI SANJAY AWASTHI (Accountant Member)

92B does not enlarge the scope of the term 'international transaction' to include the Corporate Guarantee in the nature provided by the assessee therein. The Tribunal held that in case of default, Guarantor has to fulfil the liability and therefore, there is always an inherent risk in providing guarantees and that may be a reason that Finance provider insist

DONGFANG ELECTRIC CORPORATION,KOLKATA vs. DDIT (IT)-1(1), KOLKATA, KOLKATA

In the result, both the appeals of the assessee are allowed

Bench: Sri N.V. Vasudevan & Sri J. Sudhakar Reddy]

TDS to the extent of Rs 65,187. 7. On the facts and in the circumstances of the case and, the AO erred in levying interest under section 234D of the Act. 8. On the facts and in the circumstances of the case and, the Assessing Officer erred in granting short credit of interest under section 244A

DONGFANG ELECTRIC CORPORATION,KOLKATA vs. DCIT, INTERNATIONAL TAXATION 1(1), KOLKATA, KOLKATA

In the result, both the appeals of the assessee are allowed

Bench: Sri N.V. Vasudevan & Sri J. Sudhakar Reddy]

TDS to the extent of Rs 65,187. 7. On the facts and in the circumstances of the case and, the AO erred in levying interest under section 234D of the Act. 8. On the facts and in the circumstances of the case and, the Assessing Officer erred in granting short credit of interest under section 244A

M/S. PHILIPS INDIA LIMITED (FORMERLY PHILIPS ELECTRONICS INDIA LITD.),KOLKATA vs. ACIT, CIRCLE - 12(2), KOLKATA , KOLKATA

In the result, the appeal of the assessee is partly allowed for statistical purposes

Bench: Hon’Ble Shri A.T.Varkey, Jm & Hon’Ble Shri M.Balaganesh, Am ] I.T.A No. 2489/Kol/2017 Assessment Year : 2013-14 M/S Philips India Ltd. -Vs- Acit, Circle-12(2), Kolkata (Formerly Philips Electronics India Ltd.) [Pan: Aabcp 9487 A] (Appellant) (Respondent)

92B of the Act, so as to invoke the provisions of section 92 of the Act; 3.3 The TPO erred in using the formula of AMP/Sales while determining the excess AMP spend, which tantamounts to bright line test and which has been rejected by the Hon’ble High Courts in various judgments; 3.4 The TPO erred in misinterpreting and placing

M/S PHILLIPS INDIA LIMITED,KOLKATA vs. ACIT, CIR-12(2), KOLKATA, KOLKATA

In the result, the appeal of the assessee is allowed for statistical purposes

Bench: Hon’Ble Shri N.V.Vasudevan, Jm & Hon’Ble Shri M.Balaganesh, Am ] I.T.A No. 612/Kol/2017 Assessment Year : 2012-13 M/S Philips India Ltd. -Vs- Acit, Circle-12(2), Kolkata (Formerly Philips Electronics India Ltd.) [Pan: Aabcp 9487 A] (Appellant) (Respondent)

92B of the Act, so as to invoke the provisions of section 92 of the Act; 3.3 The TPO erred in using the formula of AMP/Sales while determining the excess AMP spend, which tantamount to bright line test and which has been rejected by the Hon’ble High Courts in various judgments; 3.4 Misinterpreting and placing incorrect reliance

M/S. TEGA INDUSTRIES LIMITED,KOLKATA vs. D.C.I.T., CIRCLE-11(1), KOLKATA, KOLKATA

In the result, appeal of the assessee is partly allowed for statistical purposes

Bench: Dr. Manish Borad, Hon’Ble & Shri Sonjoy Sarma, Hon’Ble

TDS Credit (Refer our detailed grounds of appeal on this issue) 10. Non grant of Foreign Tax Credit under section 91 of the Act (Refer our detailed grounds of appeal on this issue) 11. Erroneous Levy of Interest under section 234B of the Act (Refer our detailed grounds of appeal on this issue) 12. Erroneous Levy of Interest under section

DCIT, CIR-12(2), KOLKATA, KOLKATA vs. M/S PHILIPS INDIA LTD., KOLKATA

Bench: Shri N.V.Vasudevan & Shri Waseem Ahmed

1. Acropetal Technologies Ltd. (Seg) (Acropetal):- ITA No.863 & 539/Kol/2016 A.Y. 2011-12 DCIT, Cir-12(2) Kol. Vs. M/s Philips India Ltd. Page 46 The Hon'ble DRP in their Directions had rightly rejected Acropetal by stating that it is functionally not comparable to the assessee. Accordingly, the contentions of the assessee against Acropetal is reproduced as under: (i) Functionally

M/S PHILIPS INDIA LTD.,KOLKATA vs. DCIT, CIR-12(2), KOLKATA, KOLKATA

Bench: Shri N.V.Vasudevan & Shri Waseem Ahmed

1. Acropetal Technologies Ltd. (Seg) (Acropetal):- ITA No.863 & 539/Kol/2016 A.Y. 2011-12 DCIT, Cir-12(2) Kol. Vs. M/s Philips India Ltd. Page 46 The Hon'ble DRP in their Directions had rightly rejected Acropetal by stating that it is functionally not comparable to the assessee. Accordingly, the contentions of the assessee against Acropetal is reproduced as under: (i) Functionally

ALMATIS ALUMINA PRIVATE LTD,KOLKATA vs. DCIT, CIRCLE - 8(1), KOLKATA, KOLKATA

In the result, the instant appeals filed by the assessee are partly allowed

Bench: Sri Manish Borad & Sri Sonjoy Sarma

1)/143(3) of the Act was forwarded to the assessee on 14/12/2017. The assessee filed appeal before the ld. Dispute Resolution Panel (in short the “DRP”) and vide order dated 03/04/2018 ld. DRP issued directions u/s 144C(5) of the Act which were received on 13/04/2018. Accordingly, the assessment was completed in confirmity with the directions issued

ALMATIS ALUMINA PRIVATE LTD,KOLKATA vs. DCIT, CIRCLE-8(1), KOLKATA, KOLKATA

In the result, the instant appeals filed by the assessee are partly allowed

Bench: Sri Manish Borad & Sri Sonjoy Sarma

1)/143(3) of the Act was forwarded to the assessee on 14/12/2017. The assessee filed appeal before the ld. Dispute Resolution Panel (in short the “DRP”) and vide order dated 03/04/2018 ld. DRP issued directions u/s 144C(5) of the Act which were received on 13/04/2018. Accordingly, the assessment was completed in confirmity with the directions issued

ACIT, CIRCLE-33, KOLKATA, KOLKATA vs. M/S RAHEE JHAJHARIA E TO E JV, KOLKATA

In the result, appeal of the revenue is dismissed & appeal of the assessee is allowed

Bench: Shri Rajpal Yadav, Hon’Ble & Shri Rajesh Kumar, Hon’Blei.T.A. No. 1125/Kol/2019 Assessment Year: 2014-15 Asstt. Commissioner Of Income Tax, Rahee Jhajharia E To E Jv Flat 1C, 1St Floor Circle-33, Kolkata Vs 4, Ho Chi Minh Sarani Chowringhee Kolkata - 700071 Pan : Aabar5042H अपीलाथ"/ (Appellant) "" यथ"/ (Respondent)

92B(i) and reference made to TPO under section 92CA is invalid and bad in law. Therefore, the consequential order passed by the TPO and DRP is also not sustainable in the eyes of law. 11. Under these circumstances, where this clause (i) is omitted from the statute since its inception, the AO ought have required to frame the assessment

M/S RAHEE JHAJHARIA E TO E JV,KOLKATA vs. ACIT, CIRCLE-33, KOLKATA, KOLKATA

In the result, appeal of the revenue is dismissed & appeal of the assessee is allowed

Bench: Shri Rajpal Yadav, Hon’Ble & Shri Rajesh Kumar, Hon’Blei.T.A. No. 1125/Kol/2019 Assessment Year: 2014-15 Asstt. Commissioner Of Income Tax, Rahee Jhajharia E To E Jv Flat 1C, 1St Floor Circle-33, Kolkata Vs 4, Ho Chi Minh Sarani Chowringhee Kolkata - 700071 Pan : Aabar5042H अपीलाथ"/ (Appellant) "" यथ"/ (Respondent)

92B(i) and reference made to TPO under section 92CA is invalid and bad in law. Therefore, the consequential order passed by the TPO and DRP is also not sustainable in the eyes of law. 11. Under these circumstances, where this clause (i) is omitted from the statute since its inception, the AO ought have required to frame the assessment

DCIT, CIRCLE - 7(1), KOLKATA, KOLKATA vs. M/S. BRITANNIA INDUSTRIES LIMITED , KOLKATA

Bench: Shri S.S.Godara & Shri, M. Balaganesh

92B inserted in the Act by the Finance Act 2012 covers corporate guarantee as well. We find that this tribunal’s co-ordinate bench’s decision in EIH Ltd. vs. DCIT/Kol/2016 holds that the said explanations applies from financial year 2012-13 only without having any retrospective effect. We are also informed that the department’s special leave petition