TMI Blog2022 (9) TMI 1256X X X X Extracts X X X X X X X X Extracts X X X X ..... cline to entertain the appeal on the said question. - ITA 63/2021, CM APPL. 8744/2021 & CM APPL. 8745/2021 - - - Dated:- 19-9-2022 - HON'BLE MR. JUSTICE MANMOHAN AND HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA Appellant Through: Mr. Sachit Jolly with Mr. Rohit Garg Ms. Disha Jham Mr. Sohum Dua, Advocates. Respondents Through: Mr. Sunil Kumar Agarwal, Sr. Standing Counsel for Revenue with Mr. Tushar Gupta and Mr. Utkarsh Tiwari, Advocates. O R D E R CM APPL. 8745/2021(exemption) Exemption allowed, subject to all just exceptions. Accordingly, present application stands disposed of. ITA 63/2021 1. The present Income Tax Appeal has been filed seeking a direction for setting aside the order dated 21st September, 2020, passed by the Income Tax Appellate Tribunal ( ITAT ) in ITA No. 12/DEL/2020 for the Assessment Year ( AY ) 2014-15. 2. The appellant in compliance with the order dated 25th July, 2022 has placed on record a control chart proposing seven (7) questions of law. 3. We have heard the learned counsel for the parties at length and thereafter, framed the following three (3) questions of law:- 1. Whether on the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee before the ITAT. The ITAT concluded that the evidence placed on record by the Assessee is not sufficient to demonstrate that the AE had actually rendered services, which are mentioned in the agreement. The ITAT, therefore, set aside the issue for fresh determination to the TPO with liberty to the Assessee to place on record additional documents for demonstrating that the services were actually rendered by the AE. The Assessee is, however, aggrieved by the said direction of the ITAT as it is the contention of the Assessee that it does not have any further evidence to lead in the matter and seeks determination of the said issue by the ITAT on the evidence available on record. The learned counsel for the appellant states that the evidence relied upon by the Assessee to establish the rendition of the management consultancy services is annexed as Annexure 22 to this appeal at pages 2334-2387 and he therefore, seeks a direction to the ITAT to determine the said issue on the basis of the said documents. 7. With respect to question (ii), during the course of survey conducted under Section 133A of the Act on 20th March, 2014, certain documents were impounded which contained e-m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port received. 8. With respect to the question no. (iii), learned counsel for the appellant states that while computing the book profits for the purpose of Section 115JB of the Act, the AO has reduced an amount of Rs. 1782.09 Crores from the net profit. The ITAT observed that the figure of Rs. 1782.09 Crores which pertains to reversal of unutilized provision for taxes in the current year, requires verification. It accordingly restored the said issue to the file of the AO for verifying the correctness of the figures. 8.1. The learned counsel for the appellant is aggrieved by the said remand as it is stated that the verification of figures was not doubted either by the AO or the DRP. Further, the said figures can also be verified from the audited accounts and computation of the book profits of the amalgamated entities. He further states that the issue arising for consideration before the ITAT is only to determine whether the Assessee was entitled to claim deduction of unutilized provision of taxes in the books of the amalgamated entities. 9. The learned Senior Standing Counsel for Revenue has relied on the judgment of Tin Box Company vs. Commissioner of Income-Tax, [2001] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f finally and conclusively, especially as all the facts are available on record. He further submits that in these circumstances, it would only prolong litigation on an issue which had already been settled by a decision of this Court. We are inclined to agree with Mr. Rao. The learned ITAT has restored the above issues to the AO for a fresh decision following its earlier order dated 28.06.2016 in ITA No. 2058/DEL/2015. The ITAT being a last fact finding authority, is empowered to examine the documents and law placed by the assessee in support of its claim. It is well settled law that remand is not a power to be exercised in a routine manner and should be used sparingly, as an exception only when the facts warranted such course of action. In our opinion, when the requisite materials and the intervening decision of the jurisdictional high court was available for deciding the issue urged by the Assessee, the Tribunal ought to have arrived at a conclusion rather than remanding the matter back to the Assessing Officer. (Emphasis supplied) 12. Accordingly, we partly allow the appeal of the Assessee on question nos. (i), (ii) and (iii) and direct the learned ITAT to take up ..... X X X X Extracts X X X X X X X X Extracts X X X X
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