M/s Nirvana Business Solutions P Ltd, Bangalore V. Deputy Commissioner of Income tax, Bangalore

ITA 1623/BANG/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5448 (ITAT-BANGALORE)
• Duration Of Justice: 3 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 02-05-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 19-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P C KHINCHA
• Keywords: Transfer pricing; Opportunity of being heard; International transaction
• Section: 92C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH B, BANGALORE BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO, JUDICIAL MEMBER ITA NO.1623 & 1624 (BANG) 2014 (ASSESSMENT YEARS : 2009 10 & 2010 11) M/S NIRVANA BUSINESS SOLUTIONS PVT. LTD. 777/O, 1 ST CROSS, 13 TH MAIN ROAD, 100 FEET ROAD, HAL 2 ND STAGE, INDIRANAGAR, BANGALORE -560 038 PAN: AABCN5508L APPELLANT VS THE DCIT, CIRCLE 12 (2), BANGALORE RESPONDENT ASSESSEE BY : SHRI P. C. KHINCHA , C. A. REVENUE BY : SHRI JEEVAN J. NEETALGI, STANDING CO UNSEL DATE OF HEARING : 02-05-2017 DATE OF PRONOUNCEMENT : 05-05-2017 O R D E R PER SHRI A.K.GARODIA, AM BOTH THESE APPEALS FILED BY THE ASSESSEE AND THESE ARE DIRECTED AGAINST TWO SEPARATE ORDERS OF THE LD. CIT(A) IV, BANGALORE DATED 20-10- 2014 FOR A. Y. 2009 10 AND DATED 10.11.2014 FOR A . Y. 2010 11. 2. IN BOTH THESE YEARS, THE ISSUES INVOLVED ARE ABO UT T P ADJUSTMENT. AT THE OUTSET, IT WAS SUBMITTED BY THE LEARNED AR OF THE A SSESSEE THAT IT IS NOTED BY THE A. O. IN PARA 3 OF THE ASSESSMENT ORDER IN BOTH YEARS THAT THE CASE WAS REFERRED TO THE TPO U/S 92CA BUT THE REFERENCE WAS RETURNED BACK BY THE TPO IN BOTH THESE YEARS BY SAYING THAT THE VALUE OF INTERNATIONAL TRANSACTION AS PER FORM 3CEB IN EACH OF THESE TWO YEARS IS LESS THAN RS. 15 CRORES. AT THIS JUNCTURE, A QUERY WAS RAISED BY THE BENCH THAT WHETHER THE REFERENCE BY THE AO TO TPO IN CASE WHERE INTERNATIONAL TRANSACTI ON AS PER FORM 3CEB IS LESS THAN RS. 15 CRORES IN THESE TWO YEARS IS BAD I N LAW. IN REPLY, HE ITA NOS.1623 & 1624(B)2014 2 SUBMITTED THAT AS PER THE PROVISIONS OF SECTION 92C A AND AS PER CBDT INSTRUCTIONS, SUCH REFERENCE IS A MUST IN CASE WHER E SUCH TRANSACTION AS PER FORM 3CEB IS MORE THAN RS. 15 CRORES BUT THERE IS N O SUCH PROVISION IN THE ACT OR IN CBDT INSTRUCTION THAT ANY SUCH REFERENCE TO TPO IS BAD IN LAW IN A CASE WHERE INTERNATIONAL TRANSACTION AS PER FORM 3C EB IS LESS THAN RS. 15 CRORES. THEREAFTER, THIS PROPOSITION WAS PUT FORWAR D BY THE BENCH THAT UNDER THESE FACTS, THE MATTER HAS TO GO BACK TO THE TPO I N BOTH THESE YEARS WITH THE DIRECTION TO HIM TO PASS ORDERS IN BOTH THESE Y EARS AS PER LAW AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE. BOTH SIDES AGREED TO THIS PROPOSITION. WE ORDER ACCORDINGLY. T HE ORDER OF CIT (A) IN BOTH YEARS IS SET ASIDE AND THE MATTER IS RESTORED TO TP O FOR PASSING ORDERS IN BOTH THESE YEARS AS PER LAW AFTER PROVIDING ADEQUAT E OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN VIEW OF THIS, NO ADJUDICA TION IS CALLED FOR AT THIS STAGE ABOUT VARIOUS ASPECTS OF T. P. ADJUSTMENT MAD E BY THE A. O. BECAUSE THE MATTER HAS TO BE FIRST DECIDED BY THE TPO AND T HEREAFTER, THE A. O. HAS TO PASS THE ASSESSMENT ORDER AS PER LAW AND HENCE, ALL THE ISSUES ARE OPEN. 3. IN THE RESULT, BOTH THESE APPEALS OF THE ASSESSE E ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- (VIJAY PAL RAO) SD/- (A.K. GARODIA) JUDICAL MEMBER ACCOUNTANT MEMBER PLACE: BANGALORE: D A T E D : 05.05.2017 AM * ITA NOS.1623 & 1624(B)2014 3 COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A)-II BANGALORE 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER, AR, ITAT, BANGALORE 1. DATE OF DICTATION 2. , , DATE ON WHICH TYPED DRAFT IS PLACED BEFORE THE DICT ATING MEMBER .. 3. !' # . $ %# / $ %# # & DATE ON WHICH THE APPROVED DRAFT COMES TO THE PS/SR .PS. 4. ''() & * + DATE ON WHICH THE ORDER IS PLACED BEFORE THE DICTAT ING MEMBER FOR PRONOUNCEMENT 5. * . %# / # . . %# # + DATE ON WHICH THE ORDER COMES BACK TO THE PS/SR.PS .. 6 * !', + DATE OF UPLOADING THE ORDER ON WEBSITE .. 7. ! !', ' , - ) IF NOT UPLOADED, FURNISH THE REASON FOR DOING SO . 8. .% / 0 + DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 9. * 1'2 / 34 & 5 + DATE ON WHICH ORDER GOES FOR XEROX &ENDORSEMENT 10. 0 6 / + DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 11. * 7 & 0 8 + THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 12. !) * 9() & 0 9() /#5 . + THE DATE ON WHICH THE FILE GOES TO DESPATCH SECTION FOR DESPATCH OF THE TRIBUNAL ORDER 13. * 9() + DATE OF DESPATCH OF ORDER .