Mitsubishi Electric India Private … vs Deputy Commissioner Of Income-Tax … on 16 March, 2026

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    Mitsubishi Electric India Private … vs Deputy Commissioner Of Income-Tax … on 16 March, 2026

                              $~57
                              *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                              +    W.P.(C) 3327/2026, CM APPLs. 16080/2026, 16081/2026 &
                                   16101/2026
                                  MITSUBISHI ELECTRIC INDIA PRIVATE LIMITED .....Petitioner
                                                Through: Mr. Manuj Sabharwal, Adv.
                                                versus
                                  DEPUTY COMMISSIONER OF INCOME-TAX CIRCLE 16(1),
                                  DELHI & ORS.                                .....Respondents
                                                Through: Mr. Abhishek Maratha, SSC with Mr.
                                                           Apoorv Agarwal, JSC.
                                  CORAM:
                                  HON'BLE MR. JUSTICE DINESH MEHTA
                                  HON'BLE MR. JUSTICE VINOD KUMAR
                                                ORDER
    
                              %                 16.03.2026
                              REPORTABLE
                              DINESH MEHTA, J. (ORAL)
    

    1. By way of the present writ petition, the petitioner has challenged the
    order dated 03.03.2026 passed under Section 142(1) of Income Tax Act,
    1961 (hereinafter referred to as ‘Act of 1961’) and notice dated 09.03.2026,
    whereby the respondent No.2-Assessing Officer (hereinafter referred to as
    ‘AO’) has decided to go ahead with the assessment proceedings which were
    initiated pursuant to the notices dated 19.06.2024 and 18.11.2024 issued
    under Section 143(2) and 142(1) of the Act of 1961 respectively, for
    Assessment Year 2023-24.

    2. Mr. Sabharwal, learned counsel for the petitioner informed the Court
    that the petitioner had initially applied before the Authority for Advance
    Ruling (hereinafter referred to as ‘AAR’) vide application dated 10.10.2018
    under Section 245Q(1) of the Act of 1961 seeking a ruling on the following
    question:-

    SPONSORED

    W.P.(C) 3327/2026 Page 1 of 11

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    “Whether on facts and circumstances of the case, Section 43B of the
    Income-tax Act, 1961 (“the Act”) allows deduction of custom duty paid
    under protest to the custom authorities for clearance of goods, pursuant to
    the order passed by the Commissioner of Customs rejecting duty exemption
    benefit by the applicant and thereby loading the invoice with 5%/ 10%
    duty.”

    3. During the course of regular assessment proceedings under Section
    143(3)
    of the Act of 1961, the AO issued various notices, raising certain
    queries.

    4. The petitioner moved another application dated 27.05.2024 under
    Section 245Q(1) before the Board for Advance Rulings (hereinafter referred
    to as ‘BFAR’) in relation to whether the fee for technical services paid to
    expatriate employees reimbursed by it to its holding company namely,
    Mitsubishi Electric Corporation, Japan (MELCO) qualifies as fee for
    technical services as per Section 9(1)(vii) of the Act of 1961 by referring the
    following questions:-

    “1. On the facts and in the circumstances of the case, whether the amounts
    (representing salary and benefits payable by MELCO to expatriate
    employees) reimbursed by the Applicant to MELCO qualifies as fees for
    technical services in the hands of MELCO under the provisions of Section
    9(1)(vii)
    of the Income-tax Act, 1961 (‘the Act’)?

    2. On the facts and in the circumstances of the case, whether the amounts
    (representing salary and benefits payable by MELCO to expatriate
    employees reimbursed by the Applicant to MELCO qualifies as Fees for
    Technical Services in the hands of MELCO under Article 12(4) of the India-
    Japan Double Taxation Avoidance Agreement (India-Japan Tax Treaty)?

    3. Is there a permanent establishment of MELCO in India by presence of
    seconded employees of MELCO under the Article 5 of the DAA and if so, is
    the amount (representing salary and benefits payable by MELCO to
    expatriate employees) received by MELCO from the Applicant in the nature
    of ‘business profits’ attributable to such permanent establishment in India
    under Article 7 of the DTAA?

    4. If the answer to question No. 3 is in the affirmative, is the amount of
    taxable income NIL, inasmuch as the reimbursements are on actual basis?

    5. If the answer to question no.1 to 4 above is in the affirmative, whether the

    W.P.(C) 3327/2026 Page 2 of 11
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    tax is liable to be deducted at source by the applicant under the provision of
    Section 195 of the Income-tax Act, 1961? If yes, then at what rate?”

    5. On 02.07.2024, the petitioner filed a reply/representation and
    requested the AO to keep the proceedings in abeyance in view of the
    provisions contained in Section 245RR of the Act of 1961 as the matter was
    pending before the BFAR.

    6. It is noteworthy to mention that all pending applications before the
    AAR have now been transferred to BFAR consequent to the relevant
    amendment introduced in the Act of 1961 by way of Finance Act, 2021
    which led to constitution of BFAR.

    7. It is admitted case of both the parties that the matter has been
    transferred to and is now pending consideration before the Board for
    Advance Rulings (earlier AAR).

    8. The AO passed the impugned order dated 03.03.2026, inter alia,
    observing that the issues which are pending before the BFAR are only in
    respect of (i) reimbursement of salary and benefits paid to expatriate
    employees, and (ii) deductibility of customs duty paid under protest,
    whereas, a host of other issues are to be considered by him while completing
    the assessment proceedings. While turning down petitioner’s request for
    deferring the assessment proceedings, the AO has observed in the present
    case thus:

    “…In the present case, the issues under examination in the assessment
    proceedings include, inter alia, verification of relief claimed under section
    90
    /91, reconciliation of disallowance under section 40(a)(ia), examination
    of substantial deduction claimed under the head “any other amount
    allowable”, verification of ICDS adjustments, allowability of depreciation
    and additional depreciation, reconciliation of receipts as per Form
    26AS/TDS statements, and matters arising pursuant to reference made
    under section 92CA(1) and order passed under section 92CA(3) etc.. These
    issues are independent and distinct from the matters stated to be pending

    W.P.(C) 3327/2026 Page 3 of 11
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    before the Hon’ble BFAR.

    It is further observed that the issue relating to reimbursement of expatriate
    salary does not explicitly and specifically arise from the queries presently
    under consideration in the assessment proceedings. Even in respect of
    customs duty paid under protest, the present examination pertains to
    allowability of deduction claimed in the return of income, which necessarily
    involves verification of the nature of payment, year of crystallisation of
    liability and applicability of relevant provisions of the Act…”

    9. Mr. Sabharwal, learned counsel for the petitioner took the Court
    through the relevant provisions, more particularly Sections 245R and 245RR
    read with Clauses (viii) and (ix) of Explanation 1 to Section 153 of the Act
    of 1961 and argued that as per the scheme of the Act of 1961, the AO cannot
    continue with the assessment proceedings, as the matter is admittedly
    pending before BFAR.

    10. He argued that if the AO is allowed to complete the proceedings and
    pass assessment order, it will seriously prejudice petitioner’s rights on the
    one hand and will lead to an anomaly on the other hand in the sense that in
    case he decides those very issues, it will breach the mandate of Section
    245RR
    of the Act of 1961 and in case he passes the order without touching
    upon these issues, he shall have to pass two assessment orders which shall
    be contrary to the scheme of the Act of 1961. Because, the Act does not
    envisage two assessment orders to be passed for one assessment year. In
    support of his contention, learned counsel for the petitioner relied upon the
    following judgments of Allahabad High Court and Gujarat High Court :

    (i) Debi Prasad Malviya v. Commissioner of Income-tax,
    reported in [1952] 22 ITR 539 (Allahabad);

    (ii) Commissioner of Income-tax v. Himatlal Bhagubhai, reported
    in [1972] 86 ITR 481 (Gujarat)

    11. Apart from the aforesaid judgments, learned counsel for the petitioner

    W.P.(C) 3327/2026 Page 4 of 11
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    placed heavy reliance upon the order dated 13.03.2024 passed by a
    Coordinate Bench of this Court in W.P.(C) 3723/2024 being Mother Dairy
    Fruit and Vegetable Private limited v. The Assessment Unit, National
    Faceless Assessment Centre, New Delhi & Others so also the order dated
    12.03.2024 in W.P.(C) 13121/2019 being HLS Asia Limited v. Assistant
    Commissioner of Income Tax, Circle-II
    (1) Delhi and argued that in light of
    aforesaid judgments of this Court, the action of the AO to choose to proceed
    with the matter is liable to be quashed and assessment proceedings are
    required to be stalled unless the matter is finally decided by the BFAR.

    12. Mr. Maratha, learned senior standing counsel for the respondents, on
    the other hand argued that the submissions of the petitioner-assessee cannot
    be accepted inasmuch as the assessment proceedings need not be stalled for
    an indefinite period. He added that the provisions contained in Section
    245RR
    is only in relation to “the issue” and not in relation to the “entire
    assessment proceedings”. He argued that a correct interpretation of
    provision contained in Section 245RR would mean that the AO has to stay
    the proceedings of the assessment in relation to the issue(s) which are
    pending before the AAR or BFAR, as the case may be, and not the
    proceedings in whole as such.

    13. He argued that out of various issues which are pending before the AO,
    the assessee may bonafidely or intentionally take one or more issues out of
    them before the BFAR. The provision under Section 245RR may require the
    assessment proceedings of the revenue department to be stalled, but the
    revenue cannot be made to suffer until the matter is finally decided by the
    BFAR. He argued that the order dated 03.03.2026 passed by the AO and his
    decision to continue with the proceedings is strictly within the four corners

    W.P.(C) 3327/2026 Page 5 of 11
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    of the law and does not warrant interference.

    14. Heard learned counsel for the parties.

    15. Before adverting to the case in hand, we deem it appropriate to keep
    relevant provisions handy for which, they are reproduced hereunder:

    Section 245Q
    “Application for advance ruling.

    (1) An applicant desirous of obtaining an advance ruling under this Chapter
    or under Chapter V of the Customs Act, 1962 (52 of 1962) or under Chapter
    IIIA of the Central Excise Act, 1944
    (1 of 1944) or under Chapter VA of the
    Finance Act, 1994
    (32 of 1994) may make an application in such form and
    in such manner as may be prescribed, stating the question on which the
    advance ruling is sought.

    (2) The application shall be made in quadruplicate and be accompanied by
    a fee of ten thousand rupees or such fee as may be prescribed in this behalf,
    whichever is higher.

    (3) An applicant may withdraw an application within thirty days from the
    date of the application.

    (4) Where an application for advance ruling under this Chapter is made
    before such date as the Central Government may, by notification in the
    Official Gazette appoint, and in respect of which no order under sub-section
    (2) of section 245R has been passed or no advance ruling under sub-section
    (4) of section 245R has been pronounced before such date, such application
    along with all the relevant records, documents or material, by whatever
    name called, on the file of the Authority shall be transferred to the Board for
    Advance Rulings and shall be deemed to be the records before the Board for
    Advance Rulings for all purposes:

    [Provided that the applicant may, on or before the 31st day of October,
    2024, request the Board for Advance Rulings in writing that the application
    so transferred may not be proceeded with, if up to the date of such request,
    the Board for Advance Rulings has not passed an order under sub-section
    (2) of section 245R.]”

    Section 245RR
    Appellate authority not to proceed in certain cases.
    245RR. No income-tax authority or the Appellate Tribunal shall proceed to
    decide any issue in respect to which an application has been made by an
    applicant, being a resident, under sub-section (1) of section 245Q.

    (emphasis supplied)
    Clause (viii) & (ix) of Explanation 1 to Section 153
    “Time limit for completion of assessment, reassessment and recomputation.

    W.P.(C) 3327/2026 Page 6 of 11

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    153………

    …(viii) the period commencing from the date on which an application is
    made before the Authority for Advance Rulings or before the Board for
    Advance Rulings under sub-section (1) of section 245Q and ending with the
    date on which the order rejecting the application is received by the
    Principal Commissioner or Commissioner under sub-section (3) of section
    245R
    ; or

    (ix) the period commencing from the date on which an application is made
    before the Authority for Advance Rulings or before the Board for Advance
    Rulings under sub-section (1) of section 245Q and ending with the date on
    which the advance ruling pronounced by it is received by the Principal
    Commissioner or Commissioner under sub-section (7) of section 245R;

    or…”

    16. True it is, that Section 245Q provides for application for advance
    ruling or adjudication of the issue(s) which the assessee deems appropriate
    to be adjudicated before culmination of the transaction or assessment
    proceedings. Section 245RR has been enacted in order to give effect to the
    provisions of Section 245Q. A careful reading of Section 245RR makes it
    abundantly clear that it talks of “any issue in respect to which an
    application has been made by the applicant”. In this expression, the
    above highlighted portion of provision of Section 245RR clearly suggests
    that the AO is required to keep his hands off only in relation to the issue(s)
    which are pending before the AAR or BFAR, as the case may be.

    17. The legislature was conscious while enacting Section 245RR – its
    intent and purport is very clear. It provides that the assessment shall be kept
    in abeyance only in relation to the issue(s) which are pending consideration
    pursuant to an application under Section 245Q. The entire assessment
    proceedings, per-se, in our considered opinion, cannot be and need not be
    deferred or kept in abeyance, awaiting the decision of the application under
    Section 245Q. Clauses (viii) and (ix) of the Explanation 1 to Section 153, no
    doubt gives an impression at the first blush that the period during which the

    W.P.(C) 3327/2026 Page 7 of 11
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    application(s) remain(s) pending before the BFAR is required to be
    excluded, however, such provision cannot be read in isolation or in
    ignorance rather de hors the provisions of Section 245RR of the Act of 1961
    and being oblivious of its contextual interpretation.

    18. Needless to mention that Section 245RR comes after Explanation 1 to
    Section 153. In case two provisions appear to be contrary to each other, the
    rule of interpretation suggests that a provision which has been enacted
    subsequently or later in point of time (in order of number) shall prevail. The
    reason for such view is that when two provisions of same enactment have
    some contradiction amongst them, it shall be presumed that each section has
    been inserted or introduced one after another. In other words, since Section
    153
    is prior in point of time and Section 245RR is later, the provisions of
    Section 153 of the Act of 1961 shall have to concede to Section 245RR or in
    other words in case of doubt or even conflict between the provisions of
    Section 153 vis-a-vis the provision of Section 245RR, what is contained in
    Section 245RR shall prevail.

    19. Accordingly, maybe, there is some room of doubt in the provisions in
    clauses (viii) and (ix) of Explanation 1 to Section 153 if read in isolation, but
    such doubt wanes rather vanishes, when we look at Section 245RR of the
    Act of 1961, which clearly mandates that the proceedings shall be kept in
    abeyance in relation to the issues which are pending before the BFAR.
    Therefore, the harmonious interpretation of clauses (viii) and (ix) of
    Explanation 1 to Section 153 vis-a-vis Section 245RR of the Act of 1961
    would mean that the proceedings shall be kept in abeyance in relation to the
    issues which are pending before the BFAR. Meaning thereby, the AO can
    proceed with the assessment, but he cannot touch the issue(s) which are

    W.P.(C) 3327/2026 Page 8 of 11
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    pending before the BFAR, as a result of the application filed under Section
    245Q
    .

    20. The question then crops up is that how the AO shall pass an order in
    piecemeal and how will he pass another assessment order in case the
    pending issue is decided by the BFAR at a subsequent stage. The answer is
    not difficult to find; and the same lies in Section 150 of the Act of 1961,
    which enables the AO to give effect to the order of the BFAR.

    21. For the purpose of ready reference, Section 150 of the Act of 1961 is
    reproduced herein-below:

    “150. Provision for cases where assessment is in pursuance of an order on
    appeal, etc.
    (1)Notwithstanding anything contained in section 149, the notice under
    section 148 may be issued at any time for the purpose of making an
    assessment or reassessment or recomputation in consequence of or to give
    effect to any finding or direction contained in an order passed by any
    authority in any proceeding under this Act by way of appeal, reference or
    revision or by a Court in any proceeding under any other law.

    (2)The provisions of sub-section (1) shall not apply in any case where any
    such assessment, reassessment or recomputation as is referred to in that
    sub-section relates to an assessment year in respect of which an assessment,
    reassessment or recomputation could not have been made at the time the
    order which was the subject-matter of the appeal, reference or revision, as
    the case may be, was made by reason of any other provision limiting the
    time within which any action for assessment, reassessment or recomputation
    may be taken.”

    22. A simple look at the above noted provision reveals that it is not only
    an order in appeal but also an order passed by any authority pursuant to an
    application under Section 245Q of the Act of 1961, which shall give the AO
    a right to issue notice for assessment, reassessment order or recomputation.
    The nature of adjudication by the Authority for Advance Ruling is akin to
    ‘reference’, because it decides the question of law on set of facts or with

    W.P.(C) 3327/2026 Page 9 of 11
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    respect to a transaction. The answer per-se is not an order but maybe a
    finding on the assessee and the authorities as enumerated under Clause (a) to

    (c) of Section 245S(i) of the Act of 1961. In common parlance also, it is said
    to be a ‘reference’ before the AAR or BFAR. That apart, the application
    under Section 245Q is covered under the ambit of any proceedings as
    mentioned in Section 150 of the Act of 1961.

    23. Accordingly, if the BFAR decides the issues as raised by the
    petitioner in its favour, then there is no question of passing a re-assessment
    order or an order giving effect to the order of the BFAR, but in case the
    issue(s) is/are decided against the assessee, the AO may issue a notice under
    Section 148/150 of the Act of 1961.

    24. Moving onto the judgments which Mr. Sabharwal, learned counsel for
    the petitioner has cited – the judgments rendered in the cases of Debi Prasad
    Malviya
    (supra) and Himatlal Bhagubhai (supra) of Allahabad High Court
    and Gujarat High Court, respectively simply deal with the fragmented
    assessment orders, which obviously, the Act of 1961 does not envisage.
    Having gone through both the judgments, we find that the question of
    pending application under Section 245Q was not at all involved in those
    cases. We may mention here that Section 245Q by such time was not even
    introduced.

    25. So far as the judgment rendered in the case of HLS Asia Ltd. (supra)
    is concerned, it appears to be in favour of the petitioner-assessee, but if the
    facts noted therein are carefully examined, it transpires that no question or
    plea was raised by the respondent that the issues which are pending before
    the AAR or BFAR as the case may be are exactly the same issues which are
    being sought to be adjudicated by the AO. In the absence of such facts or

    W.P.(C) 3327/2026 Page 10 of 11
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    pleadings, we are of the view that the aforesaid judgment is not the authority
    precisely on the issues which are before us.

    26. So far as decision of a coordinate bench of this Court in the case of
    Mother Dairy (supra) is concerned, it takes almost the same view which we
    have taken in the instant judgment.

    27. The writ petition is, therefore, dismissed. It is hereby ordered that the
    AO shall frame the assessment order in accordance with law, leaving the
    issue(s) which are pending before BFAR pursuant to the petitioner’s
    applications dated 10.10.2018 and 27.05.2024. He shall be free to pass
    assessment order on all other issues and as and when pending issues before
    the BFAR are decided, he shall pass appropriate order in accordance with
    law.

    28. We are conscious of this fact that Section 245RR uses the expression
    “resident”. An application under Section 245Q may be filed by non-resident
    as well, and, therefore, the applicability of the law which we have laid down
    shall be obviously confined to the assessees who are residents of India and
    not to the non-residents of India. In case of non-residents of India, the Court
    may take an independent view as and when occasion so arises.

    29. The writ petition stands dismissed alongwith pending applications.

    DINESH MEHTA, J.

    VINOD KUMAR, J.

    MARCH 16, 2026/ ck

    W.P.(C) 3327/2026 Page 11 of 11
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