DCIT Circle-5(1), Hyderbad V. Nektar Therapeutics India Private Limited, Hyderabad

MA 112/Hyd/2022

• Counselvise Citation: [2022] 103 COUNSELVISE.COM (IT) 8636 (ITAT-HYDERABAD)
• Duration Of Justice: 4 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-11-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB-B
• Next Hearing Date: 10-11-2022
• Assessment Year: misc
• Appeal Filed On: 13-06-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Transfer pricing; Search and seizure; Set aside
• Section: 254(2)

Judgement Text

आयकर अपील य अ धकरण , हैदराबाद पीठ म IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES “B”, HYDERABAD BEFORE SHRI RAMA KANTA PANDA, ACCOUNTANT MEMBER & SHRI K.NARASIMHA CHARY, JUDICIAL MEMBER व.आवे.सं / M.A. No. 112/Hyd/2022 (Arising out of ITA No. 203/Hyd/2021) ( नधा रण वष / Assessment Year: 2016-17 ) Nektar Therapeutics India Private Limited Sy.No.101/02, Genome Valley Lalgadi Malakpet, Shameerpet Hyderabad-500 078 [PAN : AACCN1489R] Vs Deputy Commissioner of Income Tax, Circle-5(1), Hyderabad (आवेदक / Applicant) ( यथ / Respondent) नधा रती वारा / Assessee by: Shri Suyash Sinha, CA राज व वारा / Revenue by: Shri Ajith Kumar Laskar, Sr.AR स ु नवाई क तार ख/Date of hearing: 11/11/2022 घोषणा क तार ख/Pronouncement on: 11/11/2022 आदे श / ORDER PER K. NARASIMHA CHARY, JM: This Miscellaneous Application is filed with a prayer to recall the order dated 16/12/2021 passed in ITA No. 203/Hyd/2021 on the plea that MA No.112/Hyd/2022 Page 2 of 5 while disposing of the matter, the Tribunal did not follow the rule of consistency. 2. Contention of the applicant in this Miscellaneous Application is that in respect of the interest on delayed receivables, learned Transfer Pricing Officer (“learned TPO”) adopted SBI short term deposit rate as suitable Comparable Uncontrolled Price (CUP) and consequently, the Learned Assessing Officer passed the final assessment order, which was upheld by the learned Dispute Resolution Panel (learned DRP). However, in this case, the Tribunal deleted the Arm’s Length Price (“ALP”) adjustment. It is argued by the Learned DR that though the Tribunal directed the learned Assessing Officer/learned TPO to consider the index rate in the form of LIBOR+200 basis points in many cases like M/s. Cambridge Technology Enterprises Ltd. Vs. DCIT by order dated 19/11/2019, M/s. OSI Systems Pvt. Ltd. Vs. DCIT by order dated 18/11/2020 and M/s. Albani Molecular Research Centre Pvt. Ltd. Vs. DCIT by order dated 26/11/2020, but surprisingly in this case, the ALP was deleted and according to him, the same constitutes error apparent on record. 3. Per contra, it is the submission of the Learned AR that the Tribunal had taken a conscious decision after an elaborate discussion on all the grounds, error in judgment cannot be equated to the error apparent on record. He relied upon the decision of the Hon’ble Apex Court in the cases of CIT Vs. Reliance Telecom Ltd., (2021) 133 taxmann.com 41 (SC). 4. We have gone through the record in the light of the submissions made on either side. It could be seen from the order sought to be recalled, that vide paragraph No. 3, a Co-ordinate Bench had discussed the issue at length and reached the conclusion that ALP adjustment had to be deleted. In that respect, the Bench relied on the decisions in Technimount ICV Pvt. Ltd. Vs. Addl. CIT 138 ITD 23 and Sabic Innovative Plastics Vs. DCIT (2013) 59 SOT 138. MA No.112/Hyd/2022 Page 3 of 5 5. On the face of this factual findings, we find it difficult to accept the submissions on behalf of the assessee that there is any error apparent on record. We are afraid that to seek recall of the order on this ground, may amount to seek review/revise the order that has decided the issue after elaborate discussion. Conscious decisions taken cannot be errors apparent on record. 6. In this respect, we deem it necessary to refer to the decision of the Hon'ble Apex Court in the case of Reliance Telecom Ltd., (supra) wherein it was held that in a case where a detailed order was passed by the ITAT, the said order could not have been recalled by the Appellate Tribunal in exercise of powers under section 254(2) of the Act; that if the Assessee was of the opinion that the order passed by the ITAT was erroneous, either on facts or in law, in that case, the only remedy available to the Assessee was to prefer the appeal before the High Court; that, therefore, as such, the order passed by the ITAT recalling its earlier order which has been passed in exercise of powers under section 254(2) of the Act is beyond the scope and ambit of the powers of the Appellate Tribunal conferred under section 254(2) of the Act; and that, therefore, the order passed by the ITAT recalling its earlier order is unsustainable, which deserves to be set aside. It was further observed that merely because parties might have in detail gone into the merits of the case before the ITAT and merely because the parties might have filed detailed submissions, it does not confer jurisdiction upon the ITAT to pass the order de hors section 254(2) of the Act and the powers under section 254(2) of the Act are only to correct and/or rectify the mistake apparent from the record and not beyond that. Hon'ble Apex Court held that even the observations that the merits might have been decided erroneously and the ITAT had jurisdiction and within its powers it may pass an order recalling its earlier order which is an erroneous order, cannot be accepted, and if the order passed by the ITAT was erroneous on merits, in that case, the remedy available to the Assessee was to prefer an appeal before the High Court. Observing so, the MA No.112/Hyd/2022 Page 4 of 5 Hon'ble Supreme Court, in the case of Reliance Telecom Ltd. (supra), quashed the order passed by the ITAT, recalling the earlier order. 7. It is clear that the Hon'ble Apex Court held in unequivocal terms that if the assessee was of the opinion that the order passed by the ITAT was erroneous, either on facts or in law, in that case, the only remedy available to the Assessee was to prefer the appeal before the High Court. It covers in respect of both facts and law. 8. In Supertech Ltd. vs Emerald Court Owner Resident Welfare Association in Miscellaneous Application No 1572 of 2021 in Civil Appeal No 5041 of 2021 by order dated 04/10/2021 Hon'ble Apex Court observed that,- “12 The hallmark of a judicial pronouncement is its stability and finality. Judicial verdicts are not like sand dunes which are subject to the vagaries of wind and weather. A disturbing trend has emerged in this court of repeated applications, styled as Miscellaneous Applications, being filed after a final judgment has been pronounced. Such a practice has no legal foundation and must be firmly discouraged. It reduces litigation to a gambit. Miscellaneous Applications are becoming a preferred course to those with resources to pursue strategies to avoid compliance with judicial decisions. A judicial pronouncement cannot be subject to modification once the judgment has been pronounced, by filing a miscellaneous application. Filing of a miscellaneous application seeking modification/clarification of a judgment is not envisaged in law. Further, it is a settled legal principle that one cannot do indirectly what one cannot do directly [“Quando aliquid prohibetur ex directo, prohibetur et per obliquum”].” 9. Further Hon'ble Apex Court Ghanashyam Mishra & sons Private Limited VS. Edelweiss Asset Reconstruction Company Limited & Ors in IA No. 76416/2021 (M.A. No.1166 of 2021) by order dated 17/8/2022 deprecated the growing tendency of indirectly seeking review of the orders of the Court by filing applications either seeking modification or clarification of the orders. MA No.112/Hyd/2022 Page 5 of 5 10. In view of this factual and legal position, we do not see any reason to recall the above order. Miscellaneous Application is, accordingly, dismissed. Order pronounced in the open court on this the 11 th day of November, 2022 Sd/- Sd/- (RAMA KANTA PANDA) (K. NARASIMHA CHARY) ACCOUNTANT MEMBER JUDICIAL MEMBER Hyderabad, Dated: 11/11/2022 Thirumalesh, Sr.PS Copy forwarded to: 1. Nektar Therapeutics India Private Limited, Sy.No.101/02, Genome Valley, Lalgadi Malakpet, Shameerpet, Hyderabad-500 078 2. Deputy Commissioner of Income Tax, Circle-5(1), Hyderabad 3. DRP-1, Bengaluru. 4.DR, ITAT, Hyderabad. 5.GUARD FILE TRUE COPY ASSISTANT REGISTRAR ITAT, HYDERABAD