IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCHES: `D', NEW DELHI
BEFORE SMT. BEENA A PILLAI, JUDICIAL MEMBER
AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER
ITA No. 2821/Del/2015
AY: 2011-12
DCIT, Circle 8(1) Engineers India Ltd.
Room No.415 vs. Engineers India Bhawan
4th floor 1, Bhikaji Cama Place
C.R.building R.K.Puram
I.P.Estate New Delhi 110 066
New Delhi 110 002
PAN: AAACE5318C
AND
Cross Objection No.486/Del/2015
(In ITA No. 2821/Del/2015)
AY: 2011-12
Engineers India Ltd. DCIT, Circle 8(1)
Engineers India Bhawan Room No.415
1, Bhikaji Cama Place 4th floor
R.K.Puram vs. C.R.building
New Delhi 110 066 I.P.Estate
PAN: AAACE5318C New Delhi 110 002
(Appellant) (Respondent)
Department by : Smt.Naina Soin Kapil, Sr.DR.
Assessee by : Sh. Nageswar Rao, Adv. &
Sh. Purushottam Anand, Adv.
Date of Hearing : 29/01/2019
Date of Pronouncement: 08/02/2019
ITA No. 2821/Del/15 and Cross Objection 486/Del/15
Engineers India Ltd.
ORDER
PER BEENA A PILLAI, JUDICIAL MEMBER
Present Cross appeals have been filed by revenue as well as
assessee against order dated 27/02/15 passed by Ld.CIT(A)-3, New
Delhi on following grounds of appeal:
ITA 2821/Del/15 (Revenue)
"1. Whether on the facts and in the circumstances of the case and in
law, Ld.CIT(A) has erred in deleting the addition made on account of
payment of Rs.1,52,99,818/- by the AO u/s 40(a)(i) of the I.T.Act,
1961.
2. The appellant craves leave to add, alter or amend any ground of
appeal raised above at the time of hearing."
Cross Objection 486/Del/15 (Assessee)
" Based on the facts and circumstances of the case, M/s ENGINEERS
INDIA LTD (`Respondent') craves leave to prefer to file cross
objections in response to the appea filed by the Department against
the order passed by the learned Commissioner of Income Tax
(Appeals) - 3 ['CIT(A)'] under section 250 of the Income-tax Act, 1961
(`the Act') on the following grounds:
1. That the Learned CIT(A) erred in not adjudicating on .ground
raised by the Respondent in appeal against TDS credit of Rs.
18,99,261 not allowed by the Assessing Officer
while computing tax demand of the Respondent Assessee.
2. That, based on facts and circumstances of the case, the learned
CIT(A) and the Assessing Officer ought to have granted TDS credit of
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ITA No. 2821/Del/15 and Cross Objection 486/Del/15
Engineers India Ltd.
Rs. 18,99,261 while computing tax demand of the Respondent
Assessee.
3. That the Learned CIT(A) erred in not specifically adjudicating on
the issue that no interest u/s 234B of the Act could be levied in facts
of the present case, since prepaid taxes paid by the Respondent
Assessee was in excess of 90% of the total tax liability and merely
holding that .interest u/s 234B is consequential.
4. That the Learned CIT(A) erred in not specifically adjudicating on
the issue of interest u/s 234C excess charged by the Assessing
Officer and merely holding that interest u/s 234C is consequential.
2. Brief facts of case are as under:
Return of income was filed declaring total income of Rs.
7,21,44,97,477/-, which was subsequently revised to total income
of Rs. 7,15,67,26,286/-. Assessee is a public limited company and
is engaged in business of engineering, consultancy and LSTK
contract work. It is a Public Sector Company with Ministry of
Petroleum and Natural Gas established under Indian Companies
Act, 1956 and is primarily engaged in providing engineering and
technical consultancy services and execution of contracts on a
Turnkey basis predominantly in Oil/Gas/Hydro Carbon Sectors.
The assessment u/s 143(3) of the Income Tax Act, 1961 (the Act)
was finalised at total income of Rs. 7,16,62,27,270/- after making
disallowance of Rs. 9750/- u/s 14A of the Act, and disallowance of
Rs. 94,91,410/- u/s 40(a) of the Act on account of non-deduction of
TDS u/s 194H on payments made to foreign agents.
3. Aggrieved by additions, assessee preferred appeal before
ld.CIT(A) who deleted disallowance u/s 40(a)of the Act.
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ITA No. 2821/Del/15 and Cross Objection 486/Del/15
Engineers India Ltd.
3.1. Aggrieved by order of Ld.CIT(A) revenue is in appeal before
us now.
3.2. At the outset, Ld.Counsel submitted that issue raised by
revenue in its appeal stands squarely covered by decision of this
Tribunal in assessee's own case for assessment year 2010-11 in ITA
No. 2235/Del/2014 vide order dated 02/03/2017.
3.3. He further submitted that said order stands confirmed by
Hon'ble Delhi High Court in ITA No. 1156/2017 vide order dated
14/03/18 wherein Hon'ble Delhi High Court observed as under:
" This Court notices that the ITAT has followed the judgement of the
Division Bench of this Court in CIT vs. Eon Technology (P) Ltd. 2011
(203) taxman 266, where the Court in similar circumstances held that
providing such services, in respect of activities abroad, do not
constitute fee for technical services and therefore, disallowable u/s
40(a). In view of these circumstances, no substantial question of law
arises. The appeal is consequently dismissed."
4. Ld.Sr.DR though supported order of Ld.A.O. could not refute
afore stated observations by Hon'ble Delhi High Court wherein
decision of this Tribunal for assessment year 2010-11 in assessee's
own case, has been upheld.
5. We have perused submissions advanced by both sides in light
of records placed before us. Admittedly issue stands squarely
covered in assessee's favour by decision of this Tribunal in
assessee's own case, which has been upheld by Hon'ble Delhi High
Court (supra). Respectfully following the same we uphold view
taken by Ld. CIT (A).
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ITA No. 2821/Del/15 and Cross Objection 486/Del/15
Engineers India Ltd.
5.1. Accordingly ground raised by revenue stands dismissed.
6. In the result appeal filed by revenue stands dismissed.
7. Cross Objection No. 486/Del/2015
Ground No. 1 is general in nature therefore do not require any
adjudication.
7.1. Ground No. 2:
Assessee raised issue in respect of TDS credit not being allowed by
Ld. AO while computing tax demand. Assessee has filed before us
application dated 17/01/2014 under section 154 of I.T.Act, 1961
(the Act) filed before Ld.ACIT.
7.2. Ld. AO is directed to pass an order in the application so filed
by assessee and give credit to TDS as per law.
8. Ground No. 3, 4 is consequential and therefore do not require
any adjudication.
9. In the result, Cross Objection filed by assessee stands
allowed for statistical purposes.
Order pronounced in the open court on 08th February, 2019.
Sd/- Sd/-
( PRASHANT MAHARISHI) (BEENA A PILLAI)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Dt. 08th February, 2019
Gmv
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ITA No. 2821/Del/15 and Cross Objection 486/Del/15
Engineers India Ltd.
Copy forwarded to: -
1. Appellant
2. Respondent
3. CIT
4. CIT(A)
5. DR, ITAT
- TRUE COPY -
By Order,
ASSISTANT REGISTRAR
ITAT Delhi Benches
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ITA No. 2821/Del/15 and Cross Objection 486/Del/15
Engineers India Ltd.
Date
Draft dictated on 06.02.19
Draft placed before author 06.02.19
07.02.2019
Draft proposed & placed before the second
member
Draft discussed/approved by Second
Member.
Approved Draft comes to the Sr.PS/PS 07.02.19
Kept for pronouncement on 08.02.19
&
Order uploaded on :
File sent to the Bench Clerk
Date on which file goes to the AR
Date on which file goes to the Head Clerk.
Date of dispatch of Order.
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