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TMI Blog2015 (1) TMI 353X X X X Extracts X X X X X X X X Extracts X X X X ..... f more than 60 pages in which the assessee has not only dealt with the factual aspect but has also referred to the various decisions of the ITAT – DRP simply sustained the addition holding that the AO has taken the stand after detailed analysis of terms and contract entered into by the assessee - the order of the DRP needs to be set aside being cryptic and non-speaking – thus, the matter is to be remitted back to the AO – Decided in favour of assessee. - ITA No. 344/Del/2014 - - - Dated:- 5-9-2014 - Shri G. D. Agrawal And Shri H. S. Sidhu,JJ. For the Appellant : Shri Deepak Chopra, Shri Piyush Singh, Ms. Manaswini Bajpai, Advocates and Shri Niten Narang, CA. For the Respondent : Shri Sanjeev Sharma, CIT-DR and Shri Vivek Kumar, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is attributable to PE in India. Accordingly, the Assessing Officer determined the assessee's income at 62,50,63,759/- as against the income of ₹ 7,72,74,388/- offered by the assessee. That against the proposed order of the Assessing Officer, the assessee had filed objection before the DRP and the DRP, vide its order dated 30th October, 2013, overruled all the objections filed by the assessee and held as under:- On careful consideration of the matter, the panel is of the opinion that the AO has taken the above stand regarding turn-key/composite nature of contract after detailed analysis of the terms of the contract entered into by the assessee. As regards the adoption of the global profit ratio of 8.29% by the AO, we find th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vii) CIT Vs. R.D. Aggarwal and Co. - [1965] 56 ITR 20 (SC). (viii) Mewar Textile Mills Ltd. - 91 ITR 542 (SC). (ix) ITO Vs. Shri Ram Bearings Ltd. - 224 ITR 724 (SC). (x) ACIT Vs. Andhra Pradesh Power Generation Corpn.Ltd. - 2009-TIOL-346-ITAT-HYD. (xi) Xelo Pty Limited Vs. DDIT - [(A.A.R.) ITA NOs.4107,4108,4380,4381/Mum/2002]. (xii) Deepak Cables (India) Limited [A.A.R. No.940 of 2009]. (xiii) Hyosung Corporation [A.A.R. No.773 of 2008] further affirmed by Hon'ble Delhi High Court [WP (C)No.2765/2010 and C.M. No.5515/2010]. (xiv) SEPCOIII Electric Power Construction Corporation [Application No.1 of 2011 in AAR No.1008 of 2010]. (xv) LS Cable Ltd. [AAR No.858-861 of 2009]. (xvi) Joint Stock Company Foreign Ec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent for supply of equipment with twelve parties but has produced only copy of three agreements, all with Jindal group of companies. In the absence of agreement with nine parties, the Revenue is unable to determine the nature of contract between the parties. He, therefore, submitted that either the order of the Assessing Officer should be sustained or if at all the matter is being set aside, it should be set aside to the file of the Assessing Officer so that he may examine all the aspects in detail. 6. Learned counsel for the assessee, on the other hand, objected to the setting aside of the matter to the file of the Assessing Officer and stated that the setting aside of the issue to the file of the Assessing Officer will only result in mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpanies engaged in the business of civil construction, etc., in certain turnkey power projects. 44BBB. [(1)] Notwithstanding anything to the contrary contained in section 28 to 44AA, in the case of an assessee, being a foreign company, engaged in the business of civil construction or the business of erection of plant or machinery or testing or commissioning thereof, in connection with a turnkey power project approved by the Central Government in this behalf, a sum equal to ten per cent of the amount paid or payable (whether in or out of India) to the said assessee or to any person on his behalf on account of such civil construction, erection, testing or commissioning shall be deemed to be the profits and gains of such business chargeable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . If assessee is not satisfied with the view taken by the Assessing Officer, he may avail appropriate remedy as may be permissible in law. In view of the above, we set aside the orders of authorities below and restore the matter to the file of the Assessing Officer. We direct him to allow adequate opportunity to the assessee to produce all the agreements in respect of equipments supply as well as supervision of erection of those equipments. We also direct the assessee to produce all these agreements and any other document, evidence or explanation which may be relevant for determination of taxable income of the assessee. Thereafter, the Assessing Officer is directed to pass the order in accordance with law. We also observe that if the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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