IN HIGH COURT OF DELHI AT NEW DELHI ITA 327/2019 PR. COMMISSIONER OF INCOME TAX CENTRAL-2 NEW DELHI Appellant Through: Ms.Lakshmi Gurung, Sr.Standing Counsel with Mr.Sagar Suri, Advocate. versus PICO DEEPALI OVERLAYS CONSORTIUM Respondent Through: Mr.Solil Kapoor with Mr.Abhishek Gupta and Mr.Sumit Lalchandani, Advocates. CORAM: JUSTICE S. MURALIDHAR JUSTICE TALWANT SINGH ORDER 30.07.2019 CM APPL. 14886/2019 (exemption) 1. Allowed, subject to all just exceptions. ITA 327/2019 and CM APPL. 14885/2019 (stay) 2. Revenue is in appeal against order dated 19 th September 2018 passed by Income Tax Appellate Tribunal ( ITAT ) in ITA No.4929/Del/2018 for Assessment Year (AY) 2011-12. 3. Revenue is aggrieved by ITAT remanding matter to Assessing Officer ( AO ) for ascertaining whether Deepali Design and ITA 327/2019 Page 1 of 4 Exhibits Pvt. Ltd. (Deepali) is in fact member of Association of Persons ( AOP ) under name of Pico Deepali Overlays Consortium . 4. contention of Revenue is that there was already enough material available with ITAT to come to conclusion that Deepali was in fact member of AOP. 5. This Court has been taken through impugned order of ITAT both by learned Counsel for Revenue as well as learned Counsel for Assessee/ Respondent appearing on advance notice. At outset, it requires to be noticed that question whether Deepali was in fact member of AOP appears to have been contested one even while case was before ITAT. cause title of impugned order of ITAT itself reflects that against order of Commissioner of Income Tax (Appeals) [CIT (A)], two separate appeals had to be filed. One on behalf of AOP represented by Deepali as alleged member and other by Deepali in its name again expressly stating that it was alleged to be member of AOP. 6. impugned order of ITAT notes that assessment order was passed by AO ex parte i.e. without Deepali appearing in assessment proceedings. There were three members of AOP. One was Deepali, other was Pico Event Marketing India Pvt. Ltd. and third was Pico Hong Kong Ltd. perusal of assessment order framed against AOP shows that value of contract performed by AOP was approximately Rs.159 crores whereas assessment was framed at Rs.405 crores. It was ITA 327/2019 Page 2 of 4 contention of Deepali before ITAT that income earned by it on part of contract performed by it had in fact been offered by it for tax and assessment had also been completed against it separately on that basis. Deepali accordingly submitted that on face of it, original assessment order itself would have to be revisited not only to determine whether in fact Deepali was still member of AOP and, therefore, liable to be proceeded against for tax liability of AOP and further on merits whether assessment had to be of AOP minus Deepali. 7. Learned counsel for Revenue repeatedly urged before Court that in separate proceedings following Arbitral Award in dispute between AOP and Department of Sports, Ministry of Youth and Sports, GOI regarding work undertaken for Commonwealth Games 2010, AOP had taken stand that since assessment order against AOP has been set aside in its entirety by ITAT, there was no outstanding liability of AOP as of date. Accordingly, it is submitted that to protect interests of Revenue, this Court must entertain present appeal. 8. Court is shown order dated 13th June 2019 passed by Assistant Commissioner of Income Tax Central Circle - 17 attaching payment of Rs.125 crores on account of arbitral award deposited in Registry of Hon ble Delhi High Court by Department of Sports, Ministry of Youth and Sports anticipating submission that there is no outstanding demand in view of ITAT having set aside assessment order against AOP. 9. Court sees no reason why in present proceedings, Court ITA 327/2019 Page 3 of 4 should express any view on above order of Department passed under Section 281B of Income Tax Act, 1961 ( Act ). It will be open to Department to take whatever measures it considers appropriate in that regard. 10. As far as impugned order of ITAT is concerned, Court is of view that remand of matter by ITAT to AO could not be said to be unwarranted in facts and circumstances of case. impugned order does not give rise to any substantial question of law which requires to be determined by this Court. appeal is accordingly dismissed. pending application is also dismissed. S. MURALIDHAR, J. TALWANT SINGH, J. JULY 30, 2019 tr ITA 327/2019 Page 4 of 4 Pr. Commissioner of Income-tax, Central-2, New Delhi v. Pico Deepali Overlays Consortium