TMI Blog2017 (12) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... passed u/s. 143(3) r.w.s. 144C(13) of the Income Tax Act, 1961 dated 09.12.2014 for the assessment year 2011-12. ITA No. 3609/Mum/2016 2. The assessee has appealed against the order of the ld. Commissioner of Income Tax (Appeals) dated 28.02.2016. The assessee has raised multiple grounds but the fact of the case are that the ld. Commissioner of Income Tax (Appeals) has held that the assessee should have filed the appeal before the ITAT and not before him, hence, he has dismissed the appeal. The order of the ld. Commissioner of Income Tax (Appeals) in this regard may be referred as under: I have gone through the facts of this ground. I find that from the facts brought out that the draft order of the A.O. was issued under section 144C(1) and received by the appellant on February 24, 2014. However, the appellant has not been able to demonstrate as to the contention of the AO that such draft order was received by the assessee on February 22, 2014 as the receipt was stamped by the assessee s authorized representatives office should not be accepted. In this background the DRP have decided the objections to be non-este, the having been filed on March 26, 2014. Therefore, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e objections filed by the Appellant/treat the objections filed as valid. Ground No. 2 - Learned AO's observation on date of service of order On the facts and circumstances of the case, and in law, the learned Deputy Commissioner of Income Tax (International] Taxation) -3(3)(2) ('learned DCIT'/'learned AO') has erred in observing that the Appellant has provided wrong information in Form No. 35A ignoring the fact that the draft order issued under section 1440(1) of the Act was in effect received by the authorised representatives of the Appellant on February 24, 2014 (i.e. the date mentioned in Form No. 35A filed by the Appellant). It is prayed that the said observation of the learned DCIT ought not to be considered as the Appellant had not provided any wrong information in Form 35A. Ground No, 3 - Validity of the learned AO's order dated December 09, 2014 On the facts and circumstances of the case, and in law, the learned DCIT erred in passing the assessment order, dated December 9, 2014, under section 143(3) r.w.s. 1440(13) of the Income-tax Act, 1961 ('the Act') as the order has been passed beyond the time limit prescribed under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TAA. Ground No. 7 - Business profits not taxable in absence of a Permanent Establishment On the facts and circumstances of the case, and in law, the learned DCIT erred in not appreciating that, if at all, the payments received by the Appellant during the year are in the nature of 'Business Profits', and hence, not taxable in India under Article 7 of the DTAA in the absence of a Permanent Establishment in India (under Article 5 of the DTAA). The Appellant prays that the learned DCIT be directed to hold that the payments received by the Appellant are not liable to tax in India in the absence of a Permanent Establishment in India. Ground No. 8 - Invoking Rule 10 of the Income-tax Rules, 1962 On the facts and circumstances of the case, and in law, the DCIT erred in invoking the provisions of Rule 10 of the Income-tax Rules, 1962 for attributing 90% of the total receipts as Royalties and the balance 10% as FIS. The Appellant prays that the learned DCIT be directed not to invoke the provisions of Rule 10 of the Income-tax Rules, 1962. Ground No. 9 - Addition on account of reimbursement of expenses On the facts and circumstances of the case, and in law, the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er on 22.8.2014. In this report on 22.8.2014, the Assessing Officer stated to the DRP that draft assessment order was served on 22.2.2014 and thus objection were filed late by two days. On 12.11.2014, the DRP treated the objection as non-est, the DRP s order in this regard reads as under: As per the provisions of Section 144C(2) of the Act, the eligible assessee shall within thirty days of receipt of the draft order, file his objections to the Dispute Resolution Panel and the Assessing Officer. The concerned provisions of Act for the sake of ready reference are reproduced herein under :- On receipt of the draft order, the eligible assessee shall, within thirty days of the receipt by him of the draft order, - ( a) file his acceptance of the variations to the Assessing Officer, or ( b) file his objections, if any, to such variation with, ( i) the Dispute Resolution-Panel; and ( ii) the Assessing Officer. 5. It can be seen from the provisions of section 144C(2) of the Act that on receipt of the draft order, the eligible assessee shall, within thirty-days of the receipt by him of the draft order either would file his acceptance of the var ..... X X X X Extracts X X X X X X X X Extracts X X X X
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