KAYBEE P.LTD, MUMBAI V. ITO 10(1)(3) (ERSTWHILE JURIDICTIONAL ITO 8(2)(2), MUMBAI

MA 127/MUM/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7291 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-07-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2010-2011
• Appeal Filed On: 26-02-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARY ARUN KUMAR SINGH
• Keywords: Transfer pricing
• Section: 92C; 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH K, MU MBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER M.A. NO. 127/M/2019 IN ITA NO.2166/MUM/2015 (A Y 20 10-11 ) M/S KAYBEE PRIVATE LIMITED 301, A WING, SOLARIS-1, SAKI VIHAR ROAD, ANDHERI (E), MUMBAI-400072. PAN: AAACK1715H VS. ITO-10(1)(3) ROOM NO. 25 B, GROUND FLOOR, AAYAKAR BHAVAN, MUMBAI (ERSTWHILE JURISDICTIONAL ITO-8(2)(2), MUMBAI. APPELLANT RESPONDENT APPELLANT BY : SHRI MADHUR AGGARWAL ADVOCATE RESPONDENT BY : CHAUDHARY ARUN KUMAR SINGH SR DR DATE OF HEARING : 12.07.2019 DATE OF PRONOUNCEMENT : 15.07.2019 ORDER UNDER SECTION 254(2)OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. THIS MISCELLANEOUS APPLICATION (M.A.) IS FILED BY A SSESSEE FOR RECTIFICATION OF THE ALLEGED MISTAKE IN THE ORDER D ATED 08.08.2018 PASSED IN ITA NO. 2166/M/2015. IN THE APPLICATION, THE APP LICANT/ASSESSEE CONTENDED THAT WHILE ADJUDICATING THE GROUNDS OF AP PEAL THE TRIBUNAL IN PARA 6&7 AT PAGE 6 TO 8 OF THE ORDER, REJECTED THE ARGUMENTS OF THE ASSESSEE THAT PROPER SHOW CAUSE NOTICE UNDER SECTIO N 92C HAS NOT BEEN SERVED BEFORE MAKING ADJUSTMENT OF ARMS LENGTH PRI CE AND THAT ERRONEOUSLY REFEREED THE REFERENCE OF NOTICE DATED 3 RD DECEMBER 2010 UNDER SECTION 142(1), WITHOUT APPRECIATING THAT NO SUCH NOTICE FOR AY 2010-11 WAS ISSUED. THE NOTICE DATED 3 RD DECEMBER 2010 IS FOR THE ASSESSMENT YEAR 2008-09 AND NOT FOR AY 2010-11. THE APPLICANT/ MA. NO. 127/M/2019 IN ITA NO. 2166/M/2015 KAYBEE P.LTD (AY 2010-11 ) 2 ASSESSEE FURTHER CONTENDED THAT ON THE GROUNDS OF A PPEAL PERTAINING TO ASSOCIATED ENTERPRISES RELATIONSHIP, THE TRIBUNAL B Y FOLLOWING THE ORDER OF ASSESSMENT YEAR 2008-09 DATED 29 TH MAY 2015 ON ALMOST IDENTICAL FACTS AND ISSUES AND DISMISSED THE GROUNDS NO.2 OF THE AP PLICANT. IT IS ALSO AVERRED THAT THOUGH THE TRIBUNAL REFERRED THE DECIS ION IN THE SUBMISSIONS OF THE ASSESSEE, BUT NOT CONSIDERED THE DECISIONS O F COORDINATE BENCHES AND HIGH COURTS. 2. THE LD. AR FOR THE ASSESSEE MADE HIS SUBMISSIONS ON THE SIMILAR LINES. THE LD. AR FOR THE ASSESSEE WOULD SUBMIT THAT THE O RDER DATED 08.08.2018 MAY BE RECALLED OR THE MISTAKES IN THE ORDER MAY BE RECTIFY. 3. ON THE OTHER HAND THE LD. DR FOR THE REVENUE SUBMIT S THAT THE TRIBUNAL PASSED THE ORDER AFTER CONSIDERING THE SUBMISSIONS OF THE PARTIES. THE TRIBUNAL FOLLOWED THE ORDER COORDINATE BENCH FOR AY 2008-09 IN ASSESSEES OWN CASE WHEREIN THE SIMILAR GROUNDS OF APPEAL PERTAINING TO ASSOCIATED ENTERPRISES RELATIONSHIP WAS HELD AGAINS T THE ASSESSEE. FOR THE NOTICE UNDER SECTION 92C THE LD. DR FOR THE REVENUE SUBMITS THAT THE TRIBUNAL PASSED THE ORDER AFTER CONSIDERING THE MAT ERIAL ON RECORD. THE LD. AR FOR THE ASSESSEE IS SEEKING THE APPRECIATION AND RE-APPRECIATION OF THE FACTS WHICH IS BEYOND THE SCOPE OF SECTION 254(2) O F THE ACT. THE LD. DR FOR THE REVENUE SUBMITS THAT THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL WHICH CAN BE CLASSIFIED AS MISTAKE WITHIN THE SCOPE OF SECTION 254(2) OF INCOME TAX ACT. MA. NO. 127/M/2019 IN ITA NO. 2166/M/2015 KAYBEE P.LTD (AY 2010-11 ) 3 4. WE HAVE CONSIDERED THE SUBMISSION OF BOTH THE PARTI ES AND PERUSED THE RECORD. WE HAVE NOTED THAT DURING THE HEARING THE L D DR FOR THE REVENUE FILED COPY OF THE NOTICE DATED 03.12.2010 UNDER SEC TION 142(1) FOR ASSESSMENT YEAR 2008-09. THE LD. DR ALSO FILED COPY OF THE NOTICE UNDER SECTION 142(1) DATED 08.08.2012 FOR ASSESSMENT YEAR 2010-11. IN THE NOTICE DATED 08.08.2012 THE ASSESSING OFFICER IN PA RA 24 HAS CLEARLY SHOW CAUSED AS TO WHY THE ADDITIONS MADE IN AY 2008-09 S HOULD BE (WORD NOT IS MISSING) REPEATED IN THE CURRENT YEAR AS W ELL. FURTHER PERUSAL OF NOTICE DATED 03.12.2010 (FOR AY 2008-09) WHICH WAS FILED BY REVENUE TO STRENGTHEN THEIR SUBMISSIONS THAT IN AY 2008-09 THE ASSESSEE WAS DULY SERVED WITH THE NOTICE ON THE ISSUE OF ARM LENGTHS RELATION AND TRANSACTION OF CHAPTER-X OF THE ACT. IN OUR CONSIDE RED VIEW THE JOINT READING OF THE NOTICE DATE 08.08.2012 (IN AY 2010 -11) AND NOTICE DATED 03.12.2010 MADE IT CLEAR THAT THE ASSESSEE WAS SERV ED DUE NOTICE BEFORE MAKING ADJUSTMENT ON ACCOUNT OF ARMS LENGTH PRICE. THUS, WE DO NOT FIND ANY MERIT IN THE APPLICATION FILED BY THE ASSESSEE ON THIS GROUND, WHICH WE REJECT. 5. SO FAR AS OTHER GRIEVANCE OF APPLICANT/ ASSESSEE IS CONCERNED THAT TRIBUNAL WHILE PASSING THE ORDER FOLLOWED THE ORDE R OF ASSESSMENT YEAR 2008-09 DATED 29 TH MAY 2015 ON ALMOST IDENTICAL FACTS AND ISSUES AND DISMISSED THE GROUNDS NO.2. WE HAVE NOTED THAT THE COORDINATE BENCH OF TRIBUNAL IN ASSESSEES OWN CASE HAS DISMISSED THE I DENTICAL GROUND OF MA. NO. 127/M/2019 IN ITA NO. 2166/M/2015 KAYBEE P.LTD (AY 2010-11 ) 4 APPEAL ON IDENTICAL FACTS; THEREFORE, THE BENCH HAS RESPECTFULLY FOLLOWED THE ORDER FOR EARLIER YEAR IN APPLICANTS OWN CASE. IN OUR VIEW THE ASSESSEE WAS UNABLE TO CONVINCE US TO TAKE A CONTRARY VIEW. THUS, THE APPLICANT SECOND CONTENTION ID ALSO REJECTED. 6. IN VIEW OF THE ABOVE OBSERVATION THE LD. AR FOR ASS ESSEE FAILED TO CONVINCE US THAT THERE IS MISTAKE APPARENT, WHICH R EQUIRE RECTIFICATION IN THE ORDER DATED 08.08.2018. IN THE RESULT, M.A.(S) FILED BY ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 15.07.2019. SD/- SD/- SHAMIM YAHYA PAWAN SINGH ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 15.07.2019 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR K BENCH, ITAT, MUMBAI 6. GUARD FILE BY OR DER, DY./ASST. REGISTRAR ITAT, MUMBAI