Wells Fargo India Solutions Pvt.Ltd., Hyd, Hyderabad V. DCIT, Circle-17(2), Hyderabad, Hyderabad

ITA 441/HYD/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 6013 (ITAT-HYDERABAD)
• Duration Of Justice: 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-02-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 17-02-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 20-04-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K MYTHILI RANI
• Assessee Lawyers: KRANTHI P
• Keywords: Search and seizure; Right to appeal

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B : HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER ITA.NO.441/HYD/2015 ASSESSMENT YEAR 2010-2011 M/S. WELLS FARGO INDIA SOLUTIONS P. LTD., RAIDURGA (V), SERILINGAMPALLI (M), SHRI R.R. DISTRICT. HYDERABAD 500 032. PAN AAACW6592N VS. THE DCIT, CIRCLE-17(2) HYDERABAD 500 004. (APPELLANT) (RESPONDENT) ITA.NO.418/HYD/2015 ASSESSMENT YEAR 2010-2011 THE DCIT, CIRCLE-17(2) HYDERABAD 500 004. VS. M/S. WELLS FARGO INDIA SOLUTIONS P. LTD., RAIDURGA (V), SERILINGAMPALLI (M), SHRI R.R. DISTRICT. HYDERABAD 500 032. PAN AAACW6592N (APPELLANT) (RESPONDENT) FOR ASSESSEE : MR. KRANTHI P.S. FOR REVENUE : SMT. K. MYTHILI RANI DATE OF HEARING : 1 7 .02.2016 DATE OF PRONOUNCEMENT : 24 .02.2016 ORDER PER SMT. P. MADHAVI DEVI, J.M. BOTH ARE CROSS-APPEALS BY THE ASSESSEE AS WELL AS THE REVENUE FOR THE A.Y. 2010-2011 AGAINST THE 2 ITA.NOS.441/H/2015 & 418/H/2015 M/S. WELLS FARGO INDIA SOLUTIONS P. LTD., HYD. ASSESSMENT ORDER PASSED BY THE A.O. UNDER SECTION 1 43(3) READ WITH SECTION 144C (13) OF THE I.T. ACT, 1961. 2. IN BOTH OF THESE APPEALS, THE ASSESSEE AS WELL AS THE REVENUE HAVE RAISED GROUNDS OF APPEAL AGAINS T THE T.P. ADJUSTMENT MADE BY THE A.O. IN ACCORDANCE WITH THE DIRECTIONS OF THE DRP. THE ASSESSEE HAS FILED A LET TER DATED 04 TH FEBRUARY, 2016 STATING THAT ASSESSEE HAD FILED AN APPLICATION DATED 30 TH MARCH, 2013 WITH THE DIRECTOR GENERAL OF INCOME TAX, NEW DELHI FOR DETERMINATION OF ALP FOR THE PROPOSED COVERED TRANSACTIONS COVERING THE FINANCIAL YEARS 2013-2014 TO 2017-2018 AND ALSO FIL ED A LETTER DATED 31 ST MARCH, 2015 TO INCLUDE ROLL-BACK PROVISIONS FOR THE PREVIOUS FOUR YEARS COVERING F.Y S. 2009- 2010 TO 2012-2013 ALSO. IT WAS SUBMITTED THAT APA APPLICATION FILED BY THE ASSESSEE INCLUDING THE ROL L-BACK APPLICATION WERE CONCLUDED BETWEEN THE ASSESSEE AND THE APA AUTHORITIES ON 29 TH NOVEMBER, 2015, PURSUANT TO WHICH, THE ASSESSEE IS OBLIGATED TO FILE A MODIFIED RETURN OF INCOME UNDER SECTION 92CA OF THE I.T. ACT, 1961, RE AD WITH RULE 10RA OF THE RULES FOR THE A.YS. 2010-2011 TO 2015-2016, AND THE ASSESSEE IS ALSO REQUIRED TO WIT HDRAW THE APPEALS PENDING BEFORE THE APPELLATE AUTHORITIE S BEFORE FILING THE MODIFIED RETURNS OF INCOME. IN VI EW OF THE SAME, THE ASSESSEE PRAYED THAT THE ASSESSEE BE ALLO WED TO WITHDRAW THE APPEAL FOR THE CAPTIONED A.Y. I.E., A. Y. 2010- 2011 TO THE EXTENT OF THE SUBJECT COVERED UNDER THE APA WHICH IS PENDING BEFORE THIS TRIBUNAL, TO ENABLE TH E ASSESSEE TO FURNISH A MODIFIED RETURN OF INCOME. 3 ITA.NOS.441/H/2015 & 418/H/2015 M/S. WELLS FARGO INDIA SOLUTIONS P. LTD., HYD. 3. HAVING CONSIDERED THE SUBMISSIONS OF THE ASSESSEE AS ABOVE, WE DISMISS THE ASSESSEES APPEAL AS WITHDRAWN. 4. AS REGARDS THE REVENUES APPEAL, WE FIND THAT THE REGISTRY HAS RAISED A DEFECT MEMO TO THE EFFECT THAT THE APPEAL FEE OF RS.10,000 IS TO BE PAID BY THE AP PELLANT- REVENUE HEREIN AS THE REVENUE IS NOT EXEMPT FROM PAYMENT OF THE COURT FEE UNDER SECTION 253 OF THE I .T. ACT FOR THE APPEALS FILED UNDER SECTION 253(2A). WE FIN D THAT THIS TRIBUNAL VIDE ORDERS DATED 03.12.2015 IN ITA.N OS.293 & 294/H/2015, ITA.NOS.289 & 290/HYD/2015 IN THE CAS E OF ACIT, CIRCLE 17(1), HYDERABAD VS. M/S. DE SHAH I NDIA SOFTWARE P. LTD., HYDERABAD AND OTHERS HAS DISMISSE D THE REVENUES APPEAL FOR NON-PAYMENT OF THE APPEAL FEE. THE RELEVANT PORTION OF THE ORDER OF THE TRIBUNAL IS AS UNDER : 4. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND PERUSED THE RECORD. FOR THE SAKE OF IMMEDIATE REFERENCE, WE EXTRACT THE PROVISIONS OF SECTION 253(6) AND THE PROVISO THERETO WHICH CLEARL Y HIGHLIGHTS THAT THE LEGISLATURE INTENDED TO EXEMPT THE REVENUE FROM PAYMENT OF INSTITUTION FEES ONLY WITH REGARD TO THE APPEALS REFERRED TO IN SUB-SECTION (2 ). FOR BOTH THE PARTIES IN RESPECT OF MEMORANDUM OF CROSS-OBJECTIONS, NO APPEAL FEES IS PAYABLE. SECTION 253(6) : (6) AN APPEAL TO THE APPELLATE TRIBUNAL SHALL BE IN THE PRESCRIBED FORM AND SHALL BE VERIFIED IN THE PRESCRIBED MANNER AND SHALL, IN THE CASE OF AN APPEAL MADE ON OR AFTER THE 1ST DAY OF JUNE, 1992 , IRRESPECTIVE OF THE DATE OF INITIATION OF THE ASSESSMENT PROCEEDINGS 4 ITA.NOS.441/H/2015 & 418/H/2015 M/S. WELLS FARGO INDIA SOLUTIONS P. LTD., HYD. RELATING THERETO, BE ACCOMPANIED BY A FEE OF,- (A) WHERE THE TOTAL INCOME OF THE ASSESSEE AS COMPUTED BY THE ASSESSING OFFICER IN THE CASE TO WHICH THE APPEAL RELATES IS ONE HUNDRED THOUSAND RUPEES OR LESS, FIVE HUNDRED RUPEES; (B) WHERE TOTAL INCOME OF THE ASSESSEE COMPUTED AS AFORESAID IN THE CASE TO WHICH THE APPEAL RELATES IS MORE THAN ONE HUNDRED THOUSAND RUPEES, BUT NOT MORE THAN TWO HUNDRED THOUSAND RUPEES, ONE THOUSAND FIVE HUNDRED RUPEES. (C) WHERE THE TOTAL INCOME OF THE ASSESSEE, COMPUTED AS AFORESAID, IN THE CASE TO WHICH THE APPEAL RELATES IS MORE THAN TWO HUNDRED THOUSAND RUPEES, ONE PER CENT OF THE ASSESSED INCOME, SUBJECT TO A MAXIMUM OF TEN THOUSAND RUPEES. (D) WHERE THE SUBJECT MATTER OF AN APPEAL RELATES TO ANY MATTER, OTHER THAN THOSE SPECIFIED IN CLAUSES (A), (B) AND (C), FIVE HUNDRED RUPEES; PROVIDED THAT NO SUCH FEE SHALL BE PAYABLE IN THE CASE OF AN APPEAL REFERRED TO IN SUB-SECTION (2) OR A MEMORANDUM OF CROSS-OBJECTIONS REFERRED TO IN SUB- SECTION (4). (EMPHASIS SUPPLIED). SUB-SECTION (2A) IS CONSPICUOUSLY ABSENT IN THE PROVISO TO SECTION 253(6) IN WHICH EVENT, THE REVENUE HAS TO PAY THE INSTITUTION FEES IN ORDER TO FILE A VALID APPEAL. 5 ITA.NOS.441/H/2015 & 418/H/2015 M/S. WELLS FARGO INDIA SOLUTIONS P. LTD., HYD. 4.1. IN THE INSTANT CASE, MEMORANDUM OF APPEAL IS FILED PURSUANT TO DIRECTIONS GIVEN BY THE DRP. A STATUTORY RIGHT TO FILE AN APPEAL IS PROVIDE D UNDER SUB-SECTION (2A) OF SECTION 253 WHICH READS A S UNDER : [(2A)] THE COMMISSIONER MAY, IF HE OBJECTS TO ANY DIRECTION ISSUED BY THE DISPUTE RESOLUTION PANEL UNDER SUB-SECTION (5) OF SECTION 144C IN RESPECT OF ANY OBJECTION FILED ON OR AFTER THE 1 ST DAY OF JULY, 2012, BY THE ASSESSEE UNDER SUB-SECTION (2) OF SECTION 144C IN PURSUANCE OF WHICH THE ASSESSING OFFICER HAS PASSED AN ORDER COMPLETING THE ASSESSMENT OR REASSESSMENT, DIRECT THE ASSESSING OFFICER TO APPEAL TO THE APPELLATE TRIBUNAL AGAINST THE ORDER.] 4.2. THIS SUB-SECTION (2A) WAS INTRODUCED BY THE FINANCE ACT, 2012 W.E.F. 01.07.2012. WHILE INSERTING SUB-SECTION (2A) IN SECTION 253, THE LEGISLATURE HAS TAKEN CARE TO INSERT SUB-SECTION (3 A) ALSO, WHICH SPECIFIES THAT THE APPEAL SHALL BE FILE D WITHIN 60 DAYS OF THE DATE ON WHICH THE ORDER SOUGH T TO BE APPEALED AGAINST IS PASSED BY THE A.O. PURSUANT TO THE DIRECTIONS TO THE DRP UNDER SUB- SECTION (5) OF SECTION 144C. NOT ONLY THAT, SUB-SEC TION (4) ALSO WAS AMENDED BY INSERTING SUB-SECTION (2A) IN SUB-SECTION (4) FOR FILING OF CROSS-OBJECTIONS. THI S INDICATES THAT THE LEGISLATURE HAS CONSCIOUSLY NOT AMENDED SUB-SECTION (6). THEREFORE, THE CONTENTION OF THE LD. CIT/DR THAT IT COULD BE AN OMISSION OR MISTAKE IN NOT AMENDING THE SUB-SECTION (6) FOR THE APPEALS PREFERRED TO IN SUB-SECTION (2A) CANNOT BE ACCEPTED. SINCE THE LEGISLATURE INTENTIONALLY HAS N OT EXEMPTED APPEALS IN SUB-SECTION (2A), IT CAN BE CONCLUDED THAT THE ASSESSING OFFICERS APPEAL TO TH E APPELLATE TRIBUNAL SHALL BE ACCOMPANIED BY A FEE AS PRESCRIBED UNDER CLAUSE (A) TO (D) OF THE PROVISION S. AS A.O. HAS NOT TAKEN ANY STEPS TO PAY THE FEES, IN SP ITE OF BEING INTIMATED TO HIM IN THE ACKNOWLEDGMENT ITSELF, WE HAVE NO OPTION THAN TO REJECT THE 6 ITA.NOS.441/H/2015 & 418/H/2015 M/S. WELLS FARGO INDIA SOLUTIONS P. LTD., HYD. MEMORANDUM OF APPEALS PREFERRED, AS NOT MAINTAINABLE. 4.3. LD. D.R. ALSO POINTED OUT THAT ITAT CAN ACCEPT A MEMORANDUM OF APPEAL BY USING ITS DISCRETION. RULE-9 OF THE APPELLATE TRIBUNAL RULES, 1963 PROVIDES IN DISCRETION TO THE ITAT. RULE 9(3) IS AS UNDER : THE TRIBUNAL MAY IN ITS DISCRETION, ACCEPT A MEMORANDUM OF APPEAL WHICH IS NOT ACCOMPANIED BY ALL OR ANY OF THE DOCUMENTS REFERRED TO IN SUB-RULE (1). 4.4. AS CAN BE SEEN FROM THE ABOVE, IF THE MEMORANDUM OF APPEAL IS DEFICIENT IN ITS ENCLOSURES , AS PRESCRIBED, THEN ONLY THE TRIBUNAL CAN EXERCISE ITS DISCRETION TO ACCEPT THE MEMORANDUM OF APPEAL. IN THE PRESENT APPEALS, THE ENCLOSURES ARE NOT DEFECTI VE BUT THE FEE PAYABLE AS PER THE STATUTORY PROVISIONS OF SECTION 253(6) WAS NOT PAID. SINCE THE MEMO OF APPEAL IS NOT ACCOMPANIED BY THE FEE, AS PRESCRIBED , WE ARE OF THE OPINION THAT THERE IS NO DISCRETION T O THE ITAT TO ACCEPT MEMORANDUM OF APPEAL FILED, IN VIOLATION OF THE STATUTORY PROVISIONS. ITAT BEING A QUASI-JUDICIAL BODY UNDER THE I.T. ACT, IT HAS TO F OLLOW THE STATUTORY PROVISIONS AS PRESCRIBED. UNDER ANALOGOUS CIRCUMSTANCES, WHILE DEALING WITH AN APPEAL FILED BY AN ASSESSEE AGAINST THE ORDER PASSE D UNDER SECTION 271FA, THE ITAT, COCHIN BENCH IN THE CASE OF SUB-REGISTRAR OFFICE, MEPPAYUR VS. DIT (INTELLIGENCE) (2013) 26 ITR (TRIB.) 341 (COCHIN) OBSERVED THAT THE TRIBUNAL CANNOT TRAVEL BEYOND THE PROVISIONS OF THE ACT AND CANNOT ADMIT AN APPEAL EVEN IF THE OPPONENT PARTY GIVES CONSENT PERMITTING THE APPELLANT TO FILE AN APPEAL. IN OTHERWORDS, THE CONSENT OF A LITIGANT PARTY WOULD NOT CONFER JURISDICTION ON A QUASI JUDICIAL AUTHORITY UNLESS A ND UNTIL IT IS OTHERWISE CONFERRED UNDER THE STATUTE. 5. IN VIEW OF THE ABOVE, MEMORANDUM OF APPEALS FILED BY THE REVENUE ARE HEREBY REJECTED AS NOT MAINTAINABLE. 7 ITA.NOS.441/H/2015 & 418/H/2015 M/S. WELLS FARGO INDIA SOLUTIONS P. LTD., HYD. 5. RESPECTFULLY FOLLOWING THE COORDINATE BENCH DECISION OF THIS TRIBUNAL (CITED SUPRA), THE APPEAL OF THE REVENUE IS ALSO DISMISSED WITH A LIBERTY TO APPROAC H THE TRIBUNAL SEEKING RECALL OF THE ORDER AFTER PAYMENT OF THE APPEAL FEE, IF IT IS STILL AGGRIEVED EVEN AFTER THE ASSESSEE HAS WITHDRAWN THE APPEAL AND IS GOING TO FILE MODIF IED ROI IN ACCORDANCE WITH THE APA PROCEEDINGS. 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. 7. TO SUM-UP, APPEAL OF THE ASSESSEE AS WELL AS APPEAL OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 24.02.2016. SD/- SD/- (S. RIFAUR RAHMAN) (SMT. P. MADHAVI DEVI) ACOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATED 24 TH FEBRUARY, 2016 VBP/- COPY TO : 1. M/S. WELLS FARGO INDIA SOLUTIONS P. LTD., WELLS FARGO CENTRE, BUILDING-1A, DIVYASREE NSL INFRASTRUCTURE P. LTD., SEZ, SURVEY NO.66/1, RAIDURGA (V), SERILINGAMPALLI (M), RANGA R EDDY DISTRICT, HYDERABAD 500 032. 2. THE DCIT, CIRCLE-17(2), B- BLOCK, I.T. TOWERS, 6 TH FLOOR, A.C. GUARDS, HYDERABAD 500 004. 3. THE DISPUTES RESOLUTION PANEL, 2 ND FLOOR, I.T. TOWERS, A.C. GUARDS, HYDERABAD 500 004. 4. THE COMMISSIONER OF INCOME TAX, INTERNATIONAL TA XATION, I.T. TOWERS, 10-2-3, A.C. GUARDS, HYDERABAD 500 004. 5. THE ADDL. COMMISSIONER OF INCOME TAX (TRANSFER P RICING), 3 RD FLOOR, D BLOCK, I.T. TOWERS, A.C. GUARDS, HYDERAB AD 500 004. 6. D.R. ITAT B BENCH, HYDERABAD. 7. GUARD FILE