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Assistant Director of Income Tax,International Taxation,Dehradun. Vs. M/s Kvaerner Energy Ltd. A/a of GE Energy Services UK,C/o S.R.Batliboi & Co.,Golf View, Corporate Tower `B',Sector-42, Sector Road,Gurgaon 122 002.
June, 29th 2012
               IN THE INCOME TAX APPELLATE TRIBUNAL
                                `D' : NEW DELHI
                    DELHI BENCH `D

                       G.D.AGRAWAL, VICE PRESIDENT AND
           BEFORE SHRI G.D.AGRAWAL,
                      I.C.SUDHIR, JUDICIAL MEMBER
                 SHRI I.C.SUDHIR,

                                No.5572/Del/2011
                            ITA No.5572/Del/2011
                                            2003-04
                          Assessment Year : 2003


Assistant Director of             Vs.   M/s Kvaerner Energy Ltd.
Income Tax,                             A/a of GE Energy Services UK,
International Taxation,                 C/o S.R.Batliboi & Co.,
Dehradun.                               Golf View, Corporate Tower `B',
                                        Sector-
                                        Sector-42, Sector Road,
                                        Gurgaon ­ 122 002.
    (Appellant)                             (Respondent)

                    Cross Objection No.20/Del/2012
                               No.5572/Del/2011)
                       (In ITA No.5572/Del/2011)
                                         2003-04
                      Assessment Year : 2003-


M/s Kvaerner Energy Ltd.          Vs.   Assistant Director of
as a representative assessee            Income Tax,
of                                      International Taxation,
GE Energy Services UK Ltd.,             Dehradun.
C/o S.R.Batliboi & Co.,
16th Floor, The Ruby,
29, Senapati Bapat Marg,
Dadar West,
Mumbai ­ 400 028.
     (Appellant)                            (Respondent)

                                No.5573/Del/2011
                                  .5573/Del/2011
                            ITA No.5573
                                            2003-04
                          Assessment Year : 2003-


Assistant Director of             Vs.   M/s Aker Solutions (Services)
Income Tax,                             Pte.Ltd.,
International Taxation,                 (Formerly known as Kvaerner Oil
Dehradun.                               Field Products (Services) Pte.Ltd.),
                                        C/o S.R.Batliboi & Co.,
                                        Golf View, Corporate Tower `B',
                                        Sector-
                                        Sector-42, Sector Road,
                                        Gurgaon ­ 122 002.
    (Appellant)                             (Respondent)
                                     2                    ITA-5572 & 5573/Del/2011 &
                                                                C.O. 20 & 21/Del/2012

                    Cross Objection No.21/Del/2012
                               No.5573/Del/2011)
                       (In ITA No.5573/Del/2011)
                                         2003-04
                      Assessment Year : 2003-


Assistant Director of          Vs.       M/s Aker Solutions (Services)
Income Tax,                              Pte.Ltd.,
International Taxation,                  (Formerly known as Kvaerner Oil
Dehradun.                                Field Products (Services) Pte.Ltd.),
                                         C/o S.R.Batliboi & Co.,
                                         16th Floor,
                                              Floor, The Ruby,
                                         29, Senapati Bapat Marg,
                                         Dadar West,
                                         Mumbai ­ 400 028.
    (Appellant)                              (Respondent)


             Revenue by         :    Dr.Sunil Kumar, Sr.DR.
             Assessee by        :    Shri Nageshwar Rao, Advocate.




                                ORDER
    G.D.AGRAWAL, VP :
PER G.D.AGRAWAL,
      In both the appeals by the Revenue, common grounds are raised
which read as under:-


      "1.   Whether on facts and circumstances of the case, the
      CIT(A) had erred in relying upon the orders of the Hon'ble
      Uttarakhand    High   Court    quashing       the    initiation     of
      proceedings under section 147 which has not become final,
      since a special petition has been filed before the Divisional
      Bench of the Court.


      2.    Whether on facts and circumstances of the case, the
      CIT(A) had erred in not giving the finding on the merits of
      the case that the services rendered by the assessee were
      in the nature of Technical Services covered under the
      provisions of Sec. 9(1)(vii) and taxable under the provisions
      of section 115A read with section 44D of the Act."
                                     3               ITA-5572 & 5573/Del/2011 &
                                                           C.O. 20 & 21/Del/2012

2.    At the time of hearing before us, it is stated by the learned
counsel that in both these appeals, the assessment has been made
under Section 143(3)/147 in pursuance to the notice issued under
Section 148.   That against the notice issued under Section 148, the
assessee had filed the writ petition before the Hon'ble Jurisdictional
High Court which, vide order dated 20th August, 2011 in Writ Petition
No.2139 of 2010, quashed the notice issued under Section 148. When
the notice under Section 148 itself has been quashed, the assessment
order passed in pursuance to such notice cannot survive and the
learned CIT(A) has rightly cancelled the assessment order in view of
the decision of Hon'ble Jurisdictional High Court.


3.    The learned DR stated that the Revenue has either filed the
appeal against the order of the Single Judge of the Hon'ble High Court
or is in the process of filing the appeal. Therefore, to keep the issue
alive, the appeal is filed before the ITAT.


4.    We have carefully considered the arguments of both the sides
and perused the material placed before us. In both the appeals, the
assessment has been completed in pursuance to the notice issued
under Section 148.     In the writ petition filed by the assessee, the
Hon'ble Jurisdictional High Court quashed the notices issued under
Section 148 and, therefore, the assessment order framed in pursuance
to such notice cannot survive and has rightly been cancelled by the
learned CIT(A). The same is upheld.


5.    The Revenue's contention that they are in the process of filing
the appeal against the order of Hon'ble High Court will not help the
department at this stage unless and until the order of the Hon'ble
Jurisdictional High Court in the writ petition is not reversed. As of now,
the order of Hon'ble Jurisdictional High Court in Writ Petition No.2139
of 2010 stands and, therefore, no interference in the order of learned
CIT(A) is required. The same is sustained.
                                     4                ITA-5572 & 5573/Del/2011 &
                                                            C.O. 20 & 21/Del/2012






6.    The cross-objections of the assessees are only in support of the
order of learned CIT(A).    As we have sustained the order of learned
CIT(A),   the   cross-objections   have   become     infructuous     and    are
dismissed.


7.    In the result, the Revenue's appeals as well as assessees' cross-
objections are dismissed.
      Decision pronounced in the open Court on conclusion of hearing
on 27th June, 2012.


                   Sd/-                                  Sd/-
             I.C.SUDHIR)
            (I.C.SUDHIR)                       (G.D.AGRAWAL)
          JUDICIAL MEMBER                      VICE PRESIDENT

Dated : 27.06.2012
VK.

Copy forwarded to: -

1.    Assessees : (i)     M/s Kvaerner Energy Ltd.
                          A/a of GE Energy Services UK,
                          C/o S.R.Batliboi & Co.,
                          Golf View, Corporate Tower `B',
                          Sector-
                          Sector-42, Sector Road,
                          Gurgaon ­ 122 002.
                          Gurgaon
                   (ii)   M/s Aker Solutions (Services) Pte.Ltd.,
                          (Formerly known as Kvaerner Oil Field Products
                          (Services) Pte.Ltd.),
                          C/o S.R.Batliboi & Co.,
                          Golf View, Corporate Tower `B',
                          Sector-42, Sector Road,
                          Sector-
                          Gurgaon ­ 122 002.
2.    Revenue :           Assistant Director of Income Tax,
                          International Taxation,
                          Dehradun.

3.    CIT
4.    CIT(A)
5.    DR, ITAT

                               Assistant Registrar
 
 
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