Full Text
Translation output
'I.
$-17 to 25 IN T HIGH COURT OF DELHI
ITA 960/2019
$-17 to 25 IN T HIGH COURT OF DELHI
ITA 960/2019
ITA 1002/2019 and C.M.No.54099/2019
ITA 1003/2019 and C.M.No.54100/2019
ITA 1004/2019 and C.M.No.54101/2019
ITA 1005/2019 and C.M.No.54132/2019
ITA 1006/2019 and C.M.No.54133/2019
ITA 1008/2019 and C.M.No.54291/2019
ITA 1009/2019 and C.M.No.54292/2019
ITA 1010/2019 and C.M.No.54296/2019
LGELECTRONICSINC.,KOREA Appellant
Through; Mr. Ajay Vohra, Sr. Adv. with Mr. Amit Shrivastava and Mr. Ankul, Advs.
LGELECTRONICSINC.,KOREA Appellant
Through; Mr. Ajay Vohra, Sr. Adv. with Mr. Amit Shrivastava and Mr. Ankul, Advs.
VERSUS
DEPUTYCOMMISSIONEROFINCOMETAX Respondent
Through; Mi*.RaghvendraSingh and Ms.Easha Kadian,Advs.
Through; Mi*.RaghvendraSingh and Ms.Easha Kadian,Advs.
CORAMi
HON'BLE MR.JUSTICE VIPIN SANGHI
HON'BLEMR.JUSTICESANJEEV NARULA
14.02.2020 We have heard learned counsels for the parties. The following
2020:DHC:3913-DB questions of luw arise and are framed in the present appeal for our consideration:
"A. Whether the IT AT was correct in law in exercising the power ofremand to DRP on facts and circumstances ofthe presentcase?
B. Whether being the finalfactfinding authority, the ITAT abdicated its duty to givefindingon merits ofthe appeal?
C. Whether in thefacts and circumstances ofthe present case, remand by the IT AT was not warranted when all necessary facts and evidences were before the ITATand the matter was heard in greatdetailon merits?"
The short grievance ofthe appellant,in the present appeal,is thatthe learned Tribunal was notjustified in remanding the matter back to the DRP to examine the issue whether the appellant had conceded that it had a permanent establishment in India. The Tribunal, while passing the impugned order,directedin paragraph88 asfollows;
"88.In view ofabovefacts, we setaside all the appeals ofthe assessee back to thefile ofthe learned dispute resolutionpanel with a direction tofirst ascertain thefact about the admission ofthe assessee with respectto acceptance ofthe assessee ofthe existence of the permanent establishment. If it isfound that there is an admission onpartofthe assessee abouttheexistence of the permanent establishment, then, the learned dispute resolution panel will decide the issue in accordance with the law considering the above admission. However, ifit isfound that there is no admission on this aspect, then to decide the issue of existence of the permanent establishment and consequentprofitattribution thereto with respectto each ofthe assessment years. Needless to say, the learned Dispute
Resolution Panel will afford reasonable opportunity ofhearing to the assessee. The learneddispute resolutionpanel, then, will directthe- learnedassessing officer topass thefinalassessment order incorporating its direction in accordance with the law. r
<cy i Under those circumstances,in absence ofanyadmission about the existence ofthe PE by the assessee,all issues, to the existence ofthepermanent establishment as wellas the yofit attribution thereto_ would be open before the learned dispute resolutionpanel."
Mr.Vohra,learnedseniorconnselfortheappellanthassubmittedthat the Tribunal being the last fact finding authority should have examined, firstly,the issue whether there was any concession made by the appellant with regard to existence ofPEin India on its own,since the same was a matter of record and, if no such concession was made to proceed to determinetheissuewithregardto existence/non-existenceofthePEofthe appeUantinIndia. The Tribunalshould have proceeded to determine the liability towards taxation ofthe appellant only after determination ofthe aforesaid aspects. _
WefindthattheTribunalinitsverydetailed orderrecordedtherival submissions ofthe parties. In this background,in our view,there wasno purposeofremandingthematterbacktotheDRPonasmallaspect,namely whethertheappellanthadmadeanyconcessionwithregardtotheexistence ofits PE in the India. The same was a matter ofrecord,ifat all. The
Tribunalcouldhavedecidedthesaidissue and allotherissuesansmgfrom answertothesaidissue,orin conseciuencesthereof. We,therefore,answer thequestionframedinfavouroftheappellant. Wesetasidetheimpugned order in so far as the operative direction contained m paragraph 88 is concerned. We,however,make it clear that the Tribunal shall limit its considerationtotheaforesaid aspects,sincetheaspectofissuanceofnoUce underSection147/148standsconcluded againsttheassessee. f b
Theappealsstand disposedofinthe aforesaidterms.
Allrightsandcontentionsoftheparties areleftopen.
ThepartiesshallappearbeforetheTribunalon24.03.2020.
FEBRUARY 14,2020 N.Khanna SANJE GHI,J SA IN A,J
NAR
HON'BLEMR.JUSTICESANJEEV NARULA
14.02.2020 We have heard learned counsels for the parties. The following
2020:DHC:3913-DB questions of luw arise and are framed in the present appeal for our consideration:
"A. Whether the IT AT was correct in law in exercising the power ofremand to DRP on facts and circumstances ofthe presentcase?
B. Whether being the finalfactfinding authority, the ITAT abdicated its duty to givefindingon merits ofthe appeal?
C. Whether in thefacts and circumstances ofthe present case, remand by the IT AT was not warranted when all necessary facts and evidences were before the ITATand the matter was heard in greatdetailon merits?"
The short grievance ofthe appellant,in the present appeal,is thatthe learned Tribunal was notjustified in remanding the matter back to the DRP to examine the issue whether the appellant had conceded that it had a permanent establishment in India. The Tribunal, while passing the impugned order,directedin paragraph88 asfollows;
"88.In view ofabovefacts, we setaside all the appeals ofthe assessee back to thefile ofthe learned dispute resolutionpanel with a direction tofirst ascertain thefact about the admission ofthe assessee with respectto acceptance ofthe assessee ofthe existence of the permanent establishment. If it isfound that there is an admission onpartofthe assessee abouttheexistence of the permanent establishment, then, the learned dispute resolution panel will decide the issue in accordance with the law considering the above admission. However, ifit isfound that there is no admission on this aspect, then to decide the issue of existence of the permanent establishment and consequentprofitattribution thereto with respectto each ofthe assessment years. Needless to say, the learned Dispute
Resolution Panel will afford reasonable opportunity ofhearing to the assessee. The learneddispute resolutionpanel, then, will directthe- learnedassessing officer topass thefinalassessment order incorporating its direction in accordance with the law. r
<cy i Under those circumstances,in absence ofanyadmission about the existence ofthe PE by the assessee,all issues, to the existence ofthepermanent establishment as wellas the yofit attribution thereto_ would be open before the learned dispute resolutionpanel."
Mr.Vohra,learnedseniorconnselfortheappellanthassubmittedthat the Tribunal being the last fact finding authority should have examined, firstly,the issue whether there was any concession made by the appellant with regard to existence ofPEin India on its own,since the same was a matter of record and, if no such concession was made to proceed to determinetheissuewithregardto existence/non-existenceofthePEofthe appeUantinIndia. The Tribunalshould have proceeded to determine the liability towards taxation ofthe appellant only after determination ofthe aforesaid aspects. _
WefindthattheTribunalinitsverydetailed orderrecordedtherival submissions ofthe parties. In this background,in our view,there wasno purposeofremandingthematterbacktotheDRPonasmallaspect,namely whethertheappellanthadmadeanyconcessionwithregardtotheexistence ofits PE in the India. The same was a matter ofrecord,ifat all. The
Tribunalcouldhavedecidedthesaidissue and allotherissuesansmgfrom answertothesaidissue,orin conseciuencesthereof. We,therefore,answer thequestionframedinfavouroftheappellant. Wesetasidetheimpugned order in so far as the operative direction contained m paragraph 88 is concerned. We,however,make it clear that the Tribunal shall limit its considerationtotheaforesaid aspects,sincetheaspectofissuanceofnoUce underSection147/148standsconcluded againsttheassessee. f b
Theappealsstand disposedofinthe aforesaidterms.
Allrightsandcontentionsoftheparties areleftopen.
ThepartiesshallappearbeforetheTribunalon24.03.2020.
FEBRUARY 14,2020 N.Khanna SANJE GHI,J SA IN A,J
NAR
JUDGMENT