Demag Cranes & Components (India) Pvt.Ltd, Pune V. Deputy Commissioner of Income tax, Pune

MA 10/PUN/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5814 (ITAT-PUNE)
• Duration Of Justice: 5 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 06-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AJAY MODI SHRI AJAY MODI
• Keywords: Transfer pricing; International transaction

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE , , , BEFORE SHRI ANIL CHATURVEDI , AM AND SHRI VIKAS AWASTHY , JM M A. NO . 1 0 /PUN/2017 ( ARISING OUT OF ITA NO. 328 /PUN/201 4 ) / ASSESSMENT YEAR : 200 9 - 10 DEMAG CRANES & COMPONENTS (INDIA) PRIVATE LIMITED, GAT NO. 330, 332, 333, 334, NANEKARWADI, CHAKAN, TALUKA KHED, PUNE - 410501 PAN : AABCM9351Q ....... / APPELLANT / V/S. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE - 1(2), PUNE. / RESPONDENT ASSESSEE BY : SHRI RAJENDRA AGIWAL REVENUE BY : SHRI AJAY MODI REVENUE BY : SHRI AJAY MODI / DATE OF HEARING : 15 .09.2017 / DATE OF PRONOUNCEMENT : 15 .09.2017 / ORDER PER VIKAS AWASTHY, JM THIS MISCELLANEOUS APPLICATION U/S. 254(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) HAS BEEN FILED BY THE ASSESSEE/APPLICANT FOR SEEKING RECTIFICATION IN THE ORDER OF TRIBUNAL DATED 19.10.2016 IN ITA NO. 328/PN/2014 FOR ASSESSMENT YEAR 2009 - 10. 2. SHRI RAJENDRA AGIWAL APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE IN APPEAL HAD RAISED EIGHTEEN (18) GROUNDS IN ALL. DURING THE COURSE OF MAKING SUBMISSIONS, THE LD. AR OF THE ASSESSEE HAD SUBMITTED THAT GROUND NO. 2, 11, 12 AND 14 ARE NOT PRESSED. HOWEVER , THE TRIBUNAL RECORD ED THAT THE LD. AR OF THE ASSESSEE HAS STATED AT BAR THAT GROUND NOS. 2 M.A. NO. 10/PUN/2017 A.Y. 2009 - 10 2, 10, 11, 12, 13 AN 1 4 ARE NOT PRESSED. THUS, GROUND NOS. 10 AN D 13 HAVE BEEN WRONGLY DISMISSED AS NOT PRESSED. THE GROUND NO. 10 RELATES TO INCORRECT COMPUTATION OF TRANSFER PRICING ADJUSTMENT OF MANUFACTURING ACTIVITY. THE SAID GROUND HAS BEEN ADJUDICATED IN FAVOUR OF THE ASSESSEE IN EARLIER ASSE SSMENT YEAR. THEREFORE, THERE WAS NO QUESTION OF WITHDRAWING THE SAID GROUND. THE LD. AR FURTHER SUBMITTED THAT THE GROUND NO. 13 IN APPEAL IS WITH RESPECT TO ALLOWING THE BENEFIT OF +/ - 5 PERCENT RANGE UNDER PROVISIONS OF SECTION 92C(2) OF THE ACT. THE ASSESSEE IS AGGRIEVED BY THE ORDER OF LOWER AUTHORITIES I N NOT GRANTING BENEFIT OF +/ - 5% RANGE. 3. SHRI AJAY MODI REPRESENTING THE DEPARTMENT SUBMITTED THAT REVENUE HAS NO OBJECTION IF THE GROUND NOS. 10 AND 13 ARE ADJUDICATED BY THE TRIBUNAL ON MERITS. 4. BOTH SIDES HEARD. A PERUSAL OF ORDER OF TRIBUNA L DATED 19.10.2016 REVEALS THAT IN PARA 4 AND 6, IT HAS BEEN RECORDED THAT GROUND NO. 2,10, 11, REVEALS THAT IN PARA 4 AND 6, IT HAS BEEN RECORDED THAT GROUND NO. 2,10, 11, 13 AND 14 RAISED IN APPEAL ARE NOT PRESSED. THE LD. AR OF THE ASSESSEE POINTED THAT ISSUE RAISED IN GROUND NO. 10 OF THE APPEAL HAS BEEN ADJUDICATED IN FAVOUR OF THE ASSESSEE IN EARLIER ASSESSMENT YEARS AND IN GROUND NO. 13, THE ASSESSEE HAS PRAYED FOR ALLOWING BENEFIT OF +/ - 5 PERCENT RANGE. THE GROUND NO. 10 AND 13 RAISED IN THE APPEAL BY THE ASSESSEE READS AS UNDER : INCORRECT COMPUTATION OF TRANSFER PRICING ADJUSTMENT TO THE MANUFACTURING ACTIVITY. 10. ERRED IN COMPUTING THE TRANSFER PRICING ADJUSTMENT ON THE ENTIRE MANUFACTURING SEGMENT SALES INSTEAD OF COMPUTING THE TRANSFER PRICI NG ADJUSTMENT ON MANUFACTURING SEGMENT SALES PERTAINING TO IMPORT OF COMPONENTS AND SPARES FROM ASSOCIATED ENTERPRISES ONLY ; BENEFIT OF +/ - 5 % RANGE 13. ERRED IN COMPUTING THE ARMS LENGTH PRICE OF THE INTERNATIONAL TRANSACTIONS PERTAINING TO MANUFACTU RING ACTIVITY WITHOUT TAKING INTO ACCOUNT THE BENEFIT OF +/ - 5 PERCENT VARIATION FROM THE MEAN, WHICH IS PERMITTED AND OPTED FOR BY THE APPELLANT UNDER THE PROVISIONS OF SECTION 92C(2) OF THE ACT. 3 M.A. NO. 10/PUN/2017 A.Y. 2009 - 10 IT APPEARS THAT ERROR HAS CREPT IN THE ORDER OF TRIBUNAL WHILE RECORDING THE CONCESSION GRANTED BY THE LD. AR OF THE ASSESSE E WITH RESPECT TO WITHDRAWING/ NOT PRESSING OF CERTAIN GROUNDS RAISED IN THE APPEAL. THE E RROR APP ARENT ON RECORD NEEDS TO BE RECTIFIED. ACCORDINGLY, WE RECALL THE ORDER OF TRIBUNA L DATED 19.10.2016 FOR THE LIMITED PURPOSE OF ADJUDICATING GROUND NOS. 10 AND 13 REPRODUCED ABOVE RAISED BY THE ASSESSEE IN APPEAL. 5. THE REGISTRY IS DIRECTED TO LIST THE APPEAL OF ASSESSEE FOR HEARING ON 31.10.2017 FOR ADJUDICATING GROUND NOS. 10 AND 13 ONLY . SINCE THE DATE OF HEARING OF APPEAL HAS BEEN INFORMED TO BOTH SIDES PRESENT IN THE COURT, ISSUANCE OF SEPARATE NOTICE IS DISPENSED WITH. 6. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED IN THE AFORESAID TERMS. ORDER PRO NOUNCED IN THE OPEN COURT ON FRIDAY , THE 15 TH DAY OF SEPTEMBER , 201 7 . SD/ - SD/ - ( / ANIL CHATURVEDI ) ( /VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; / DATED : 15 TH SEPTEMBER, 2017. SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. DRP, PUNE 4. DIT, TRANSFER PRICING, PUNE. 5 . , , , / DR, ITAT, B BENCH, PUNE. 6 . / GUARD FILE. // TRUE COPY // / BY ORDER, /PRIVATE SECRETARY , / ITAT, PUNE .