DCIT 3(2)(1), MUMBAI V. INDIA CAPITAL RESEARCH & ADVISORS, MUMBAI

ITA 1817/MUM/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1704 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: K
• Assessment Year: 2011-2012
• Appeal Filed On: 28-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V JENARDHANAN
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL K BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA , A M AND SHRI RAM LAL NEGI, JM I.T.A. NO. 1817/MUM/2016 ( ASSESSMENT YEAR: 2011 - 12 ) DCIT 3(2)(1), ROOM NO. 674, 6 TH FLOOR, AAYKAR BHAVAN, M. K. ROAD, MUMBAI - 400 020 VS. INDIA CAPITAL RESEARCH & ADVISOR PVT. LTD. 97, JOLLY MAKER CHAMBER NO. 2, NARIMAN POINT, MUMBAI - 400 021 PAN/GIR NO. AABCI 6696 J ( APPELLANT ) : ( RESPONDENT ) APPELLANT BY : SHRI V. JENARDHANAN RESPONDENT BY : SHRI PRATIK SHAH DATE OF HEARIN G : 12.07.2018 DATE OF PRONOUNCEMENT : 05.09 .2018 O R D E R PER S HAMIM YAHYA, A. M.: THIS A PPEAL BY THE REVENUE IS DIRECTED AGAINST THE O RDER OF THE ASSESSING OFFICER PASSED U/S. 143(3) RWS 144C(1) OF THE INCOME TAX ACT, 1961 PURSUANT TO THE DIREC TION OF THE DISPUTE RESOLUTION PANEL - I, MUMBAI DATED 10.12.2015 U/S. 144C(5) OF THE INCOME TAX ACT, 1961. 2. THE GROUNDS OF APPEAL READ AS UNDER: 1. 'WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE HON'BLE DRP - I, MUMBAI WAS CORRECT IN REJECTING THE COMPARABLES TAKEN BY THE TPO I.E. MOTILAL OSWAL INVESTMENT ADVISORS LTD., IGNORING THE FACT THAT IT WAS FUNCTIONALLY COMPARABLES TO THE ASSESSEE'S BUSINESS ACTIVITIES OF RENDERING OF INVESTMENTS ADVISORY SERVICES.?' 2. 'WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE HON'BLE DRP - I, MUMBAI WAS CORRECT IN REJECTING THE COMPARABLES TAKEN BY THE 2 ITA NO. 1817/MUM/2016 INDIA CAPITAL RESEARCH & ADVISOR PVT. LTD. TPO I.E. NEW BERRY ADVISORS LTD., IGNORING THE FACT THAT IT WAS FUNCTIONALLY COMPARABLES TO THE ASSESSEE'S BUSINES S ACTIVITIES OF RENDERING OF INVESTMENTS ADVISORY SERVICES.?' 3. AT THE OU T SET, THE LD. COUNSEL OF THE ASSESSEE HAS SUBMITTED THAT THE COMPANY HAS ENTERED INTO AN ADVANCE PRESSING AGREEMENT (APA) FOR THE RELEVANT TRANSACTION WITH THE CBDT ON 29.08.2016 WH ICH COVERS THE CAPTIONED ASSESSMENT YEAR. IT HAS BEEN REACHED WITH RESPECT TO THE TRANSACTION BETWEEN THE ASSESSEE AND ITS AE WHICH INCLUDES THE PRESENT ASSESSMENT YEAR. IT HAS FURTHER BEEN SUBMITTED THAT THE COMPANY HAS ALREADY FILED ITS MODIFIED RETURN A ND PAID TAXES AS PER THE APA. THUS, IT HAS BEEN PLEADED THAT PURSUANT TO APA IT IS REQUIRED THAT ANY APPEAL PERTAINING TO THE ASSESSMENT YEAR WHICH IS COVERED TO BE WITHDRAWN. HENCE, THE ASSESSEE HAS WITHDRAWN ITS APPEAL AND REQUESTED THE REVENUE TO WITHDR AWN ITS APPEAL ALSO. 4. WE HAVE PUT THIS SUBMISSION OF THE ASSESSEE BEFORE THE LD. DEPARTMENTAL REPRESENTATIVE. THE LD. DEPARTMENTAL REPRESENTATIVE HAS SUBMITTED A RESPONSE FROM THE ASSESSING OFFICER IN THIS REGARD. THE RESPONSE FROM THE ASSESSING OFFICE R INCLUDES AS UNDER: 3. SUBSEQUENTLY , THE ASSESSEE HAS FILED AN APA APPLICATION CONSEQUENT TO WHICH IT HAS FILED A MODIFIED RETURN IN CONSONANCE WITH THE SAME FOR A.Y> 2011 - 12. THE SAID MODIFIED RETURN FOR A.Y. 2011 - 12 HAS BEEN PROCESSED AND ORDER U/S. 14 3(3) HAS BEEN PASSED BY THIS OFFICE ON 27.03.2018 WHEREIN NO FURTHER ADDITION HAS BEEN MADE TO THE INCOME OF THE ASSESSEE. IN VIEW OF THE SAME, THE ASSESSEE HAS TAKEN A PLEA BEFORE THE HONBLE ITAT THAT THE COURT MAY DIRECT THE A.O. TO WITHDRAW THE APPEAL FILED FOR THE YEAR UNDER CONSIDERATION. IN VIEW OF THE SAME THE HONBLE COURT HAS SOUGHT A REPORT ON THE NECESSARILY OF WITHDRAWAL OF THE APPEAL FILED BEFOR E THE ITA T 3 ITA NO. 1817/MUM/2016 INDIA CAPITAL RESEARCH & ADVISOR PVT. LTD. 5. IN LIGHT OF THE ABOVE, THE LD. DEPARTMENTAL REPRESENTATIVE FAIRLY AGREED THAT THE REV ENUES APPEAL MAY BE DISMISSED AS INFRUCTUOUS , SINCE THE MODIFIED RETURN FOR THE CONCERNED ASSESSMENT YEAR HAS BEEN PROCESSED U/S. 143(3) OF THE ACT WHERE NO FURTHER ADDITION HAS BEEN MADE TO THE INCOME OF THE ASSESSEE. 6. IN ACCORDANCE WITH THE ABOVE SA ID DISCUSSION, WE HOLD THAT THE REVENUES APPEAL STANDS DISMISSED BEING INFRUCTUOUS. 7. IN THE RESULT, THE R EVENUE S APPEAL STAND S DISMISSED BEING INFRUCTUOUS. ORDER PRONOUNCED IN THE OPEN COURT ON 05.09.2018 SD/ - SD/ - ( RAM LAL NEGI ) (S HAMIM YAHYA) J UDICIAL MEMBER A CCOUNTANT MEMBER MUMBAI ; DATED : 05.09.2018 ROSHANI , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT - CONCERNED 5. DR, ITAT, MUMBAI 6. GUARD F ILE BY ORDER, (DY./ASSTT. REGISTRAR) ITAT, MUMBAI