Open Silicon Research P Ltd, Bangalore V. Income tax Officer, Ward-12(1), Bangalore

MA 124/BANG/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4397 (ITAT-BANGALORE)
• Duration Of Justice: 6 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 17-06-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 04-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A R V SRINIVASAN JT
• Assessee Lawyers: T SURYANARAYANA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER AND SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER M.P. NO.124/BANG/2015 [IN IT(TP)A NO.1128/BANG/2011] ASSESSMENT YEAR : 2007-08 OPEN SILICON RESEARCH PVT LTD. NOS.11/1 AND 12/1, GROUND FLOOR, MARUTHI INFOTECH CENTRE, INDIRANAGAR-KORAMANGALA INTERMEDIATE RING ROAD, BANGALORE 560 078. PAN: AAACO 5915B VS. THE INCOME TAX OFFICER, WARD 12(1), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI T. SURYANARAYANA, ADVOCATE RESPONDENT BY : SHRI A.R.V. SRINIVASAN, JT. CIT(DR) DATE OF HEARING : 17.06.2016 DATE OF PRONOUNCEMENT : 17.06.2016 O R D E R PER ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER THIS MISCELLANEOUS PETITION IS FILED BY THE APPLI CANT COMPANY SEEKING RECTIFICATION OF CERTAIN MISTAKES APPARENT FROM THE RECORD IN THE ORDER OF THE TRIBUNAL DATED 11.09.2015 IN IT(TP)A N O.1128/BANG/2011. MP NO.124/BANG/2015 PAGE 2 OF 5 2. IT IS STATED IN THE PETITION THAT IN THE APPEAL BEFORE THE TRIBUNAL, THE ASSESSEE COMPANY HAD SOUGHT FOR EXCLUSION/REJECTION OF THE FOLLOWING 10 COMPARABLES, WHICH WERE OBJECTED TO BEFORE THE TPO AND DRP, FROM THE LIST OF COMPARABLES SELECTED BY THE TPO :- (I) AVANI CIMCOM TECHNOLOGIES LTD. (II) CELESTIAL LABS LTD. (III) FLEXTRONICS SOFTWARE SYSTEMS LTD. (IV) GEOMETRIC LTD. (V) INFOSYS TECHNOLOGIES LTD. (VI) ISHIR INFOTECH LTD. (VII) KALS INFORMATION SYTEMS LTD. (VIII) LUCID SOFTWARE LTD. (IX) TATA ELXSI LTD., AND (X) WIPRO LTD. 3. FURTHER, THE FOLLOWING 9 COMPARABLES WHICH WERE NOT OBJECTED TO BEFORE THE TPO OR DRP, BUT WHICH WERE SOUGHT TO BE EXCLUDED/REJECTED FROM THE FINAL LIST OF COMPARABLES SELECTED BY THE TPO FOR THE FIRST TIME BEFORE THE TRIBUNAL BY WAY OF RAISING ADDITIONAL GR OUNDS:- (I) ACCEL TRANSMATICS LTD. (II) E-ZEST SOLUTIONS LTD. (III) HELIOS & MATHESON INFORMATION TECHNOLOGY LTD. (IV) IGATE GLOBAL SOLUTIONS LTD. (V) MINDTREE LTD. (VI) PERSISTENT SYSTEMS LTD. (VII) QUINTEGRA SOLUTIONS LTD. (VIII) SASKEN COMMUNICATION TECHNOLOGIES LTD., AND (IX) THIRDWARE SOLUTIONS LTD. 4. THE LD .COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THE ORDER DATED 11.09.2015, THE TRIBUNAL HAD GIVEN A FINDING ONLY W ITH REGARD TO 9 MP NO.124/BANG/2015 PAGE 3 OF 5 COMPANIES WHOSE EXCLUSION WAS SOUGHT BY WAY OF ADDI TIONAL GROUNDS AND DIRECTED THE AO TO EXAMINE THE COMPARABILITY OF THO SE COMPANIES. HOWEVER, THE TRIBUNAL DID NOT ADJUDICATE UPON THE G ROUNDS RELATING TO REJECTION OF THE 10 COMPARABLES THE INCLUSION OF WH ICH WERE OBJECTED TO BY THE ASSESSEE BEFORE THE TPO AND DRP. IT WAS SUBMIT TED THAT THOUGH THE TRIBUNAL HAD SPECIFICALLY NOTED IN PARA 19 OF THE O RDER THAT ASSESSEE WAS SEEKING REJECTION OF 19 OUT OF THE 26 COMPARABLES S ELECTED BY THE TPO, BUT IT DID NOT DELIBERATE UPON INSOFAR AS THE 10 COMPAR ABLES ARE CONCERNED AS STATED ABOVE. THUS, NON-ADJUDICATION OF THE GROUND S SEEKING REJECTION OF 10 COMPARABLES CONSTITUTES A MISTAKE APPARENT FROM THE RECORD REQUIRING RECTIFICATION. 5. IT IS FURTHER SUBMITTED THAT VIDE PARA 23 OF THE ORDER OF THE TRIBUNAL, THE TRIBUNAL REMANDED THE MATTER TO THE AO/TPO TO E XAMINE THE ISSUE OF COMPARABILITY OF ONLY 8 COMPANIES INADVERTENTLY AS AGAINST 9 COMPANIES SOUGHT TO BE EXCLUDED BY THE ASSESSEE BY WAY OF ADD ITIONAL GROUNDS. IT IS POINTED OUT THAT CONTENTIONS AND SUBMISSIONS OF THE ASSESSEE FOR REJECTION OF THE SAID 9 COMPANIES WERE DEALT WITH IN PARAS 11 TO 16 OF THE TRIBUNALS ORDER AND THE FACT OF ASSESSEE SEEKING REJECTION OF 9 COMPARABLES URGED BY WAY OF ADDITIONAL GROUNDS WAS EXTRACTED IN PARAS 17 & 18 OF THE TRIBUNALS ORDER. THUS, THE TRIBUNALS DIRECTION IN PARA 23 O F THE ORDER DIRECTING THE AO/TPO TO EXAMINE THE ISSUE OF COMPARABILITY OF ONL Y 8 COMPANIES INADVERTENTLY, INSTEAD OF 9 COMPANIES, IS A MISTAKE APPARENT FROM THE RECORD WHICH REQUIRED RECTIFICATION. MP NO.124/BANG/2015 PAGE 4 OF 5 6. IN VIEW OF THE ABOVE, THE LD. COUNSEL FOR THE AS SESSEE PRAYED FOR RECTIFICATION OF THE ABOVE MISTAKES APPARENT FROM T HE RECORD. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD. WE FIND FROM THE ORDER OF THE TRIBUNAL DATED 11.09. 2015 THAT THE ISSUE OF COMPARABILITY OF 10 COMPARABLES MENTIONED IN PARA 2 HEREINABOVE HAS NOT BEEN ADJUDICATED UPON. ALSO, WHILE DEALING WITH TH E ADDITIONAL GROUNDS OF APPEAL RAISED BY THE ASSESSEE SEEKING EXCLUSION OF 9 COMPANIES AS NOTED IN PARA 3 HEREINABOVE, THE TRIBUNAL IN PARA 23 OF I TS ORDER RESTORED THE ISSUE TO THE AO/TPO TO EXAMINE THE COMPARABILITY OF 8 COMPANIES AS AGAINST 9 COMPANIES URGED BY THE ASSESSEE COMPANY. THESE ISSUES CONSTITUTE MISTAKES APPARENT FROM THE RECORD. THERE FORE, WE ARE OF THE VIEW THAT THE ORDER OF TRIBUNAL HAS TO BE RECALLED TO AD JUDICATE UPON THESE ISSUES. ACCORDINGLY, THE ORDER OF THE TRIBUNAL DAT ED 11.09.2015 IS RECALLED FOR THE LIMITED PURPOSE OF EXAMINING THESE TWO ISSU ES AND THE APPEAL IS DIRECTED TO BE POSTED FOR HEARING ON 10.10.2016. 8. IN THE RESULT, MISCELLANEOUS PETITION BY THE ASS ESSEE IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON THIS 17 TH DAY OF JUNE, 2016. SD/- SD/- ( ABRAHAM P. GEORGE ) (ASHA VIJAYARAGHAVAN ) ACCOUNTANT MEMBER JUDICIAL MEMBER BANGALORE, DATED, THE 23 RD JUNE, 2016. /D S/ MP NO.124/BANG/2015 PAGE 5 OF 5 COPY TO: 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.