Cisco Systems (India) Private Limited, Bangalore V. Asst.C.I.T., Bangalore

ITA 785/BANG/2015

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1528 (ITAT-BANGALORE)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-11-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 25-05-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Transfer pricing; Rectification of order
• Section: 143(3); 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI ABRAHAM P GEORGE, ACCOUNTANT MEMBER A ND SHRI VIJAY PAL RAO, JUDICIAL MEMBER IT (TP) A NO. 785/ BANG/20 15 (ASSESSMENT YEAR: 2008 - 09 ) M/S.CISCO SYSTEMS (INDIA) PVT.LTD. BRIGA DE SOUTH PARADE NO.10, M.G.ROAD, BANGALORE - 560001. PAN: AABCC0258Q VS. APPELLANT ASST. COMMISSIONER OF INCOME - TAX, CIRCLE 2(1)(1), BANGALORE. RESPONDENT APPELLANT BY: SHRI CHAVALI NARAYAN, CA. RESPONDENT BY: SHRI SANJAY K UMAR, CIT(DR). DATE OF HEARING : 20/10/2015 DATE OF PRONOUNCEMENT: 10 / 11 /2015. O R D E R PER VIJAY PAL RAO , JM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 20/3/2015 OF THE AO GIVING EFFECT TO THE ORDER DATED 31/10/2013 OF THIS TRIBUNAL FOR THE ASSESSMENT YEAR 2008 - 09. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: BASED ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, CISCO SYSTEMS (INDIA) PRIVATE LIMITED (HEREINAFTER REFERRED TO AS THE 'APPELLANT') RES PECTFULLY CRAVES LEAVE TO PREFER AN IT (TP A NO . 785 /BANG/201 5 M/S.CISCO SYSTEMS (INDIA) PVT. LTD. PAGE 2 OF 4 APPEAL AGAINST THE ORDER PASSED BY THE ASSISTANT COMMISSIONER OF INCOME - TAX - C IRCLE 2(1)(1) ('ASSESSING OFFICER' OR 'AO') DATED MARCH 20, 2015 (RECEIVED ON MARCH 26, 2015) ON THE FOLLOWING GROUNDS: 1. THE LEARNED AO/TRANSF ER PRICING OFFICER (TPO') HAVE ERRED IN LAW BY PASSING AN ORDER UNDER SECTION 143(3) R.W.S. 254 OF THE ACT, WHICH IS NOT IN CONFORMITY WITH THE DIRECTIONS OF THE HON'BLE INCOME - TAX APPELLATE TRIBUNAL ('HON'BLE TRIBUNAL') IN APPELLANT'S OWN CASE, THEREBY VI OLATING THE PRINCIPLES OF JUDICIAL DISCIPLINE. 2. THE LEARNED AO/ LEARNED TPO HAVE ERRED, IN LAW AND IN FACTS, BY DISREGARDING THE ORDER OF THE HON'BLE TRIBUNAL AND CONSIDERING THE TURNOVER FILTER OF INR 1 CRORE TO INR 2,000 CRORES FOR SELECTION OF COMPARABL E COMPANIES INSTEAD OF ADOPTING THE TURNOVER FILTER OF INR 200 TO INR 2,000 CRORES APPLICABLE IN THE APPELLANT'S CASE AS DIRECTED BY THE HON'BLE TRIBUNAL. 3. THE LEARNED AO/ LEARNED TPO HAVE ERRED IN LAW, BY NOT ADOPTING A CONSISTENT APPROACH IN TREATING CER TAIN ITEMS AS OPERATING/ NON - OPERATING WHILE COMPUTING MARGINS OF THE APPELLANT VIS - A - VIS THE COMPARABLES AS DIRECTED BY THE HON'BLE TRIBUNAL. 4. THE LEARNED AO HAS ERRED IN LAW AND IN FACT, BY DIFFERING IN CERTAIN ASPECTS WITH THE METHODOLOGY ADOPTED BY THE APPELLANT FOR ALLOCATING THE COMMON/INDIRECT COSTS INCURRED AMONG ITS VARIOUS BUSINESS SEGMENTS WHILE COMPUTING DEDUCTION UNDER SECTION 1 O OF THE INCOME - TAX ACT, 1961 ('THE ACT'). THE APPELLANT SUBMITS THAT EACH OF THE ABOVE GROUNDS IS INDEPENDENT AND W ITHOUT PREJUDICE TO ONE ANOTHER. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, VARY, OMIT OR SUBSTITUTE ANY OF THE AFORESAID GROUNDS OF APPEAL AT ANY TIME BEFORE OR AT THE TIME OF HEARING OF THE APPEAL, SO IT (TP A NO . 785 /BANG/201 5 M/S.CISCO SYSTEMS (INDIA) PVT. LTD. PAGE 3 OF 4 AS TO ENABLE THE HON'BLE TRIBUNAL TO DECIDE ON THE APPEAL IN ACCORDANCE WITH THE LAW. 3. THE ORIGINAL ASSESSMENT WAS COMPLETED IN PURSUANCE TO THE DIRECTIONS OF THE DRP WHEREBY THE AO MADE VARIOUS ADDITIONS INCLUDING ADDITION ON ACCOUNT OF TRANSFER PRICING ADJUSTMENT IN RESPECT OF INTERNATIONAL T RANSACTIONS OF THE ASSESSEE IN PRODUCT REPLACEMENT SEGMENT AND SOFTWARE DEVELOPMENT SEGMENT. 4. THE ASSESSEE CARRIED THE MATTER TO THIS TRIBUNAL. THE TRIBUNAL, WHILE DECIDING THE APPEAL OF THE ASSESSEE VIDE ITS ORDER DATED 31/10/2013 INTER ALIA, REMITTED THE MATTER BACK TO THE FILE OF THE TPO/AO TO RE - COMPUTE THE ALP BY APPLYING THE TURNOVER FILTER. IN THE GIVING EFFECT ORDER, THE TPO DID NOT FOLLOW THE DIRECTIONS OF THE TRIBUNAL FOR APPLYING THE TURNOVER FILTER AND CONSEQUENTLY THE ASSESSEE FILED THE PR ESENT APPEAL. HOWEVER, IN THE MEAN TIME, THE TPO HAS PASSED AN ORDER U/S 154 OF THE IT ACT,1961 DATED 25/5/2015 WHEREBY THE GRIEVANCE OF THE ASSESSEE HAS BEEN REDRESSED BY THE TPO BY APPLYING THE CORRECT TURNOVER FILTER. 5. THE LEARNED AR OF THE ASS ESSEE HAS FILED A COPY OF THE ORDER DATED 25/5/2015 WHEREBY NECESSARY RECTIFICATION HAS BEEN CARRIED OUT BY THE TPO IN PURSUANCE TO THE RECTIFICATION PETITION FILED BY THE ASSESSEE VIDE LETTER DATED 31/12/2014. THE LEARNED AR OF THE ASSESSEE HAS SUBMITTED THAT THERE IS NO GRIEVANCE LEFT AFTER THE IT (TP A NO . 785 /BANG/201 5 M/S.CISCO SYSTEMS (INDIA) PVT. LTD. PAGE 4 OF 4 RECTIFICATION ORDER PASSED BY THE TPO AND ACCORDINGLY, THE APPEAL OF THE ASSESSEE MAY BE DISMISSED AS INFRUCTUOUS. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASES, WHEN THE GRIEVANCE OF THE ASSESSEE IS ALREADY REDRESSED WHILE PASSING THE RECTIFICATION ORDER DATED 25/5/2015 BY THE TPO, THEN THE PRESENT APPEAL OF THE ASSESSEE BECOMES INFRUCTUOUS AND THE SAME IS DISMISSED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. PRON OUNCED IN THE OPEN COURT ON 10 TH NOVEMBER , 201 5 . S D/ - S D/ - ( ABRAHAM P GEORGE ) ( VIJAY PAL RAO ) ACCOUNTANT MEMBER JUDICIAL MEMBER EKSRINIVASULU COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME - TAX APPELLATE T RIBUNAL BANGALORE