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2014 (9) TMI 127 - AT - Income TaxPower of DRP to delegate its power to the AO - Taxability of income from contract business in India Violation of section 144C(8) Held that - The maxim of delegatus non potest delegare would be squarely applicable, which envisages that when a power has been conferred upon a person, then he must exercise that power alone, unless expressly empowered to delegate it to another - when the statute prescribes a particular body or authority to exercise power, then it must be exercised by that body or authority alone - The provisions of statute, as contained in sub-section (8) of section 144C, clearly prohibits the DRP to delegate its power to the AO i.e., to set aside the variation or issue any direction to carry out any further enquiry by the AO - there is a clear cut violation of section 144C(8) by the DRP- there is a further violation by the AO in the final assessment order, as he went step further in interpreting the direction of the DRP, by carrying out further enquiry and recording the statement of project manager, Shri K.G. Ramesh - right from the stage of issuance of the direction by the DRP to the stage of passing of the final assessment order, there has been a gross violation of statutory provisions and the powers given therein - the DRP is a quasi-judicial authority and, therefore, while dealing with the lis it is obliged to ascribe cogent and germane reasons as to why the assessee's objections are not maintainable and there should be absolutely clarity on the directions to the AO, because the law does not envisage for providing further opportunity to the assessee at the stage of passing of final assessment order - the order / direction of the DRP, as a whole, is not in consonance with sub-sec. (5) r/w sub-sec. (8) of section 144C. If an authority has not carried out the function or exercised power, as provided in the statute or it has transgressed the statutory power, then it amounts to gross irregularity of exercising of power and such an irregularity is not fatal, so as to declare the entire proceedings as null and void resulting into quashing of the entire order - A distinction has to be made between illegal assumption of jurisdiction provided in the statute and irregular exercise of statutory power - If a jurisdiction is to be assumed under a statute by a particular authority to act or to initiate action or there is an issue of limitation within which certain action is to be taken or an order is to be passed, then any violation of such a statutory provisions or assumption of jurisdiction or taking any action after the period of limitation, is an illegal exercise of statutory function or provision, which cannot be obliterated or cured and such an action has to be quashed at the threshold. Insofar as the issue of P.E. is concerned, they have expressed their opinion, however, they have ultimately left to the AO to decide the issue after taking into consideration various evidences filed by the assessee - instead of deciding or clearly adjudicating the issue, the matter has been delegated to the AO which should not have been done relying upon M/s. Vodafone India Service Pvt. Ltd. (formerly known as 3 Global Services Pvt. Ltd.) Versus Union of India, Ministry of Finance, Addl. Commissioner of Income-tax, Asst. Commissioner of Income-tax 2013 (9) TMI 680 - BOMBAY HIGH COURT - the TPO's lack of jurisdiction to proceed with the issue which were not in the realm of international transaction as per objections of the assessee, would not render the entire proceedings as void thus, the matter is to be remitted back to the DRP for consideration Decided in favour of assessee.
Issues Involved:
1. Wrongly summoning the Project Manager under section 131. 2. Erroneously holding that the Appellant has a Fixed Place PE, Service PE, and Supervisory PE in India. 3. Specific provisions dealing with Construction PE of the India-Singapore DTAA ought to be considered over the general provisions. 4. Erroneously holding that the Appellant has a Construction PE in India. 5. Erroneous taxation of the income related to activities carried out outside India. 6. DRP not considering the loss claim made by the Appellant. 7. Wrongly invoking Article 24 of India-Singapore DTAA and denying the benefits of the tax treaty. 8. Erroneous initiation of penalty under section 271(1)(b) of the Act. 9. Erroneous levy of interest under section 234B of the Act. 10. General grounds related to penalty proceedings under section 271(1)(c) of the Act. Detailed Analysis: 1. Wrongly summoning the Project Manager under section 131: The assessee argued that the assessment was completed contrary to the provisions of sub-section (13) of section 144C of the Act. The DRP and the Assessing Officer (AO) were alleged to have erred in law by summoning the Project Manager, who was appointed as a consultant, under section 131. 2. Erroneously holding that the Appellant has a Fixed Place PE, Service PE, and Supervisory PE in India: The DRP and AO concluded that the Appellant had a fixed place PE in India as per the India-Singapore DTAA. They treated the Project Manager as the employee of the Appellant, thereby concluding that the Appellant had a service PE in India. Additionally, they held that Article 5(4) of the India-Singapore DTAA applied, which deals with the constitution of a PE if supervisory activities in India exceed 183 days in a fiscal year. 3. Specific provisions dealing with Construction PE of the India-Singapore DTAA ought to be considered over the general provisions: The AO applied provisions of Fixed Place PE under Article 5(1), Supervisory PE under Article 5(4), and Service PE under Article 5(6) instead of applying only the specific provisions of Construction PE under Article 5(3) of the India-Singapore DTAA. 4. Erroneously holding that the Appellant has a Construction PE in India: The DRP and AO concluded that the Appellant had a construction PE in India as prescribed under Article 5(3) of the India-Singapore DTAA. 5. Erroneous taxation of the income related to activities carried out outside India: The AO concluded that the income related to activities carried out both inside and outside India is taxable under section 44BB of the Act. This conclusion was challenged, asserting that only the portion of income attributable to operations carried out by such PE in India should be taxable as per Article 7(1) of the India-Singapore DTAA. 6. DRP not considering the loss claim made by the Appellant: The DRP erred in law and on facts by not providing any direction to the AO concerning the loss claimed by the Appellant based on the allocation and bifurcation of income and expenses attributable to Indian operations. 7. Wrongly invoking Article 24 of India-Singapore DTAA and denying the benefits of the tax treaty: The DRP remanded the matter regarding the applicability of Article 24, which was argued to be contrary to law. The AO denied the benefit of the India-Singapore DTAA and taxed the remittance under the head 'Income from Other Sources' instead of applying the provisions of section 44BB of the Act. 8. Erroneous initiation of penalty under section 271(1)(b) of the Act: The AO initiated penalty proceedings under section 271(1)(b) without appreciating that the Appellant had complied with all notices and submitted all requested documents during the assessment proceedings. 9. Erroneous levy of interest under section 234B of the Act: The AO erred in levying interest under section 234B of the Act. 10. General grounds related to penalty proceedings under section 271(1)(c) of the Act: The AO initiated penalty proceedings under section 271(1)(c) of the Act, which was contested by the Appellant. Tribunal's Decision: Preliminary Objection: The Tribunal accepted the preliminary objection raised by the assessee, noting that the DRP had set aside certain matters to the AO, which is not permissible under section 144C(8). The AO also transgressed the DRP's directions by carrying out further enquiry and recording statements under section 131, contrary to section 144C(13). Violation of Section 144C: The Tribunal found that the DRP had violated section 144C(8) by delegating its authority back to the AO, which is prohibited. The AO further violated section 144C(13) by conducting additional enquiries beyond the DRP's directions. Remand to DRP: The Tribunal set aside the final assessment order and restored the matter to the DRP. The DRP was instructed to consider the objections and evidence filed by the assessee and give clear directions to the AO in accordance with the law, after providing an effective opportunity of hearing to the assessee. Conclusion: The Tribunal allowed the appeal for statistical purposes, remanding the matter back to the DRP for a fresh decision in line with the statutory provisions and legal principles discussed.
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