M/s NetApp India Private Limited, Bangalore V. The Deputy Commissioner of Income Tax, Circle 12(2), Bangalore

MA 116/BANG/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 2619 (ITAT-BANGALORE)
• Duration Of Justice: 8 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-06-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 28-09-2020
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUMER SINGH MEENAADDL
• Assessee Lawyers: G C SRIVASTAVA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI. B.R BASKARAN, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER MP NO.116/BANG/2020 (IN ITA(TP)A 593/BANG/2012) ASSESSMENT YEAR : 2007-08 M/S NETAPP INDIA PVT.LTD., (FORMERLY NETWORK APPLIANCE SYSTEMS INDIA PVT.LTD. 3 RD FLOOR,FAIR WINDS BLOCK, EGL SOFTWARE PARK, OFF INTERMEDIATE RING ROAD, BANGALORE- 560071 PAN AABCN4063A VS. DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE - 12(2), BENGALORE. APPELLANT RESPONDENT A SSESSEE BY : SHRI.G.C.SRIVASTAVA,ADVOCATE RE VENUE BY : SHRI. SUMER SINGH MEENA,ADDL.CIT DATE OF HEARING : 19 - 03 - 202 1 DATE OF PRONOUNCEMENT : 25 - 06 - 202 1 ORDER PER BEENA PILLAI, JUDICIAL MEMBER PRESENT MISCELLANEOUS PETITION HAS BEEN FIL ED BY ASSESSEE SEEKING CERTAIN ALLEGED TYPOGRAPHIC MISTAKES APPARE NT ON RECORD IN PAGE 2 OF 4 MP NO.116/BANG/2020 ORDER PASSED BY THIS TRIBUNAL DATED 27/02/2020 IN THE ABOVE REFERRED APPEAL. 1. IT HAS BEEN SUBMITTED THAT THIS TRIBUNAL IN ORDER DATED 27/02/2020 HAS INADVERTENTLY MISSED OUT MENTIONING FEW COMPARABLES WHILE DECIDING GROUND NO. 6-7 IN THE AP PEAL FILED BY REVENUE. THE LD.COUNSEL SUBMITTED THAT IN PARA 6.1 THE COMPARABLES ALLEGED BY REVENUE FOR INCLUSION HAS BE EN RECORDED HOWEVER, IN THE CONCLUDING PARA IN PARA 6.3 INADVER TENTLY TATA ELXI LTD. WAS MISSED OUT THOUGH THIS TRIBUNAL HAS OBSERVED THAT ALL THESE COMPARABLES WERE CONSISTENTLY EXCLUDED FOR HA VING TURNOVER MORE THAN RS. 200 CRORES AND IS NOT SUITABLE FOR A CAPTIVE SERVICE PROVIDER. WE HAVE PERUSED THE IMPUGNED ORDER AND NOTE THAT T ATA LXE HAVE BEEN INADVERTENTLY MISSED OUT IN THE CONCLUSIO N PARA. ACCORDINGLY THE CONCLUDING PARA SHALL NOW READ AS U NDER: WE, THEREFORE, DIRECT LD.AO/TPO TO EXCLUDE TATA EL XI, WIPRO LTD., INFOSYS TECHNOLOGIES LTD., INFOSYS BPO LTD. FROM BOTH SEGMENTS. 2. THE NEXT GROUND RAISED BY ASSESSEE IS THAT ASSES SEE HAD FILED AN APPLICATION FOR ADDITIONAL GROUND IN RESPECT OF CER TAIN COMPARABLES BEING FUNCTIONALLY IN COMPARABLE UNDER ITES SEGMEN T. HOWEVER ON VERIFICATION OF RECORDS WE NOTE THAT THERE WAS NO S UCH APPLICATION FOR ADDITIONAL GROUND. LD.COUNSEL WAS GIVEN SUFFICI ENT OPPORTUNITY TO VERIFY THE RECORDS TO IDENTIFY THE APPLICATION S O ALLEGED IS A MISCELLANEOUS PETITION HAVING FILED BEFORE THIS TRI BUNAL. AS THE EXERCISE WAS ALL IN VAIN BE CONCLUDED THAT NO SUCH APPLICATION WAS PAGE 3 OF 4 MP NO.116/BANG/2020 PLACED ON RECORD BY ASSESSEE FOR THE SAME TO BE ADJ UDICATED. ACCORDINGLY, THIS GROUND RAISED IN MISCELLANEOUS PE TITION DOES NOT AMOUNT TO BE A MISTAKE APPARENT ON RECORD AND T HE SAME IS DISMISSED. 3. THE NEXT ISSUE RAISED BY ASSESSEE IS REGARDING N ON-ADJUDICATION OF GROUND 5 WHILE PASSING THE IMPUGNED ORDER. WE NOTE THAT INADVERTENTLY THIS GROUND WAS ADJUDICA TED. ACCORDINGLY WE RECALL IMPUGNED ORDER DATED 27/02/20 20 ONLY FOR ADJUDICATING GROUND NO. 5 IN THE APPEAL FILED B Y ASSESSEE. IN THE RESULT WE DIRECT THE REGISTRY TO PLACE THIS APPEAL IN THE REGULAR COURSE FOR ADJUDICATING GROUND NO. 5 IN ASS ESSEES APPEAL. ACCORDINGLY THE MISCELLANEOUS PETITION FILED BY ASS ESSEE STANDS PARTLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 25/6/2021 . SD/- SD/- (B.R BASKARAN) (BEENA PILLAI) ACCOUNTANT MEMBER JUDICIAL MEM BER BANGALORE, DATED, THE 25 TH JUNE, 2021. /VMS/ COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE PAGE 4 OF 4 MP NO.116/BANG/2020 DATE INITIAL 1. DRAFT DICTATED ON ON DRAGON SR.PS 2. DRAFT PLACED BEFORE AUTHOR -6-2021 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER -6-2021 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. -6-2021 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS -6-2021 SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON -6-2021 SR.PS 7. DATE OF UPLOADING THE ORDER ON WEBSITE -6-2021 SR.PS 8. IF NOT UPLOADED, FURNISH THE REASON -- SR.PS 9. FILE SENT TO THE BENCH CLERK -6-2021 SR.PS 10. DATE ON WHICH FILE GOES TO THE AR 11. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 12. DATE OF DISPATCH OF ORDER. 13. DRAFT DICTATION SHEETS ARE ATTACHED NO SR.PS