Emerson Process Management (India) Pvt. Ltd (Erstwhile M/s.Tyco Valves & Controls (India) Pvt. Ltd., Baroda V. The Dy.CIT, Baroda Cir- 4, Baroda

MA 130/AHD/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 5373 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-01-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: misc
• Appeal Filed On: 22-08-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: UMESH KUMAR AGARWAL
• Keywords: Period of limitation; Arm length price; Set aside
• Section: 92C; 254(2)

Judgement Text

आयकर अपीलीय अिधकरण, अहमदाबाद ᭠यायपीठ IN THE INCOME TAX APPELLATE TRIBUNAL, ‘’ D’’ BENCH, AHMEDABAD (CONDUCTED THROUGH VIRTUAL COURT AT AHMEDABAD) BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER And Ms MADHUMITA ROY, JUDICIAL MEMBER, M.A No.130/Ahd/2021 In आयकर अपील सं./In ITA No.2993/Ahd/2011 िनधाᭅरण वषᭅ/Asstt. Year: 2007-2008 And M.A No.131/Ahd/2021 In आयकर अपील सं./In ITA No.2779/Ahd/2012 िनधाᭅरण वषᭅ/Asstt. Year: 2006-2007 Emerson Process Management (India) Pvt. Ltd.(Erstwhile M/s Tyco Valves & Controls (I) Pvt. Ltd.), Baroda. PAN: AAACK8809L Vs. D.C.I.T., Baroda Circle-4, Baroda. (Applicant) (Respondent) Assessee by : Shri S.N. Soparkar, Sr. Advocate Revenue by : Shri Umesh Kumar Agarwal, Sr.D.R सुनवाई कᳱ तारीख/Date of Hearing : 03/12/2021 घोषणा कᳱ तारीख /Date of Pronouncement: 13/01/2022 PER WASEEM AHMED, ACCOUNTANT MEMBER: M.A Nos.130-131/AHD/2021 In ITA Nos.2293 & 2779/Ahd/2011 & 2012 Asstt. Years 2007-08 & 2006-07 2 The assessee by way of this Miscellaneous Application is pleading to modify the order passed by the ITAT in ITA No. 2993/Ahd/2011 for AY 2007-08 and ITA No. 2779/Ahd/2012 for the AY 2006-07 on account of the mistake apparent from the record crept therein. 2. At the outset we notice that the Miscellaneous Application filed by the assessee was barred by time by 393 days. The ITAT order was passed dated 22/01/2020 and the time limit for making M.A. was up-to 31/07/2020 as per the provisions of section 254(2) of the Act. But, the MA was filed dated 23/08/2021 which was barred by time. However, we note that the Hon’ble Supreme Court has directed to exclude the Covid period in computing the limitation in filing the appeal in Suo Moto writ (civil) No. 3 of 2020 titled as ‘in re: cognizance for extension of limitation’. The Hon’ble Supreme Court in its latest order dated 27/04/2021 has extended period of limitation till further order. The relevant extract of the judgement is reproduced as under: 8. Therefore, we dispose of the M.A. No.665 of 2021 with the following directions: - I. In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 02.10.2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15.03.2021, if any, shall become available with effect from 03.10.2021. II. In cases where the limitation would have expired. 2.1 In view of the above, we are inclined to condone the delay in filing the M.A. by the assessee and proceed to adjudicate the issue raised by it on merit. 3. The Ld. AR in its Miscellaneous Application submitted that the assessee is entitled for +(-) 5% benefit in Computing Arm Length Price under the provision of section 92C of the Act, as applicable for the year under consideration. However, the Tribunal in its order dated 22/01/2020 has not granted such benefit inadvertently. Thus, the Ld. AR prayed to rectify the order of the ITAT by allowing the benefit of +(-) 5% as provided under the statue. M.A Nos.130-131/AHD/2021 In ITA Nos.2293 & 2779/Ahd/2011 & 2012 Asstt. Years 2007-08 & 2006-07 3 4. On the other hand the ld. DR did not raise any objection on the arguments advanced by the Ld. Counsel for the assessee. But the Ld. DR submitted that let the AO verify whether the assessee is eligible under the provision of law for the benefit of +(-) 5% and accordingly, the matter should be set aside to the AO for adjudication as per law. 6. We have heard the rival contentions of both the parties and perused the materials available on record. The first Proviso to 92C of the Act, as applicable for the year under consideration, reads as under: [Provided that where more than one price is determined by the most appropriate method, the arm’s length price shall be taken to be the arithmetical mean of such prices, or, at the option of the assessee, a price which may vary from the arithmetical mean by an amount not exceeding five per cent of such arithmetical mean.] 6.1 A perusal of the above provision makes it clear beyond doubt that there will not be any adjustment if the variation in the price determined by the assessee and ALP determined by the Revenue does not exceeds 5% by arithmetical means. However, we note that the ITAT in its order has granted such benefit to assessee provided under the statute inadvertently. Thus, it seems to us that the mistake apparent from the record has crept in the order of the ITAT. Accordingly the para 16 and 16.1 on pages 40-41 of the ITAT order is modified as under: 16. “We have heard the rival contention of both the parties and perused the materials available on record. The benefit of 5% in the variation of Arm Length Price has already been inbuilt under the provision of law. Accordingly, we direct the AO to find out whether the variation in Arm Length Price exceed more than 5% in the manner as provided under the provisions of law and if not, then the assessee should be given the benefit of the proviso of section 92(C) of the Act. Hence the ground of appeal of the assessee is allowed for the statistical purposes.” 6.2 In the result, the MA filed by the assessee, is allowed. M.A Nos.130-131/AHD/2021 In ITA Nos.2293 & 2779/Ahd/2011 & 2012 Asstt. Years 2007-08 & 2006-07 4 Coming to the Miscellaneous Application No. 131/Ahd/2021 (in ITA No. 2779/Ahd/2012) for A.Y. 2006-07 7. At the outset, we note that the issue raised by the Assessee in its Miscellaneous Application for the AY 2006-07 is identical to the issue raised by the Assessee in MA No. 130/Ahd/2021 (in ITA No. 2993/AHD/2011) for the assessment year 2007-08. Therefore, the findings given in MA No. 130/Ahd/2021 (in ITA No.2993/Ahd/2011) shall also be applicable for the year under consideration i.e. A.Y 2006-07. The MA of the Assessee for the assessment year 2007-08 has been decided by us vide paragraph No. 6 of this order by allowing the same in favour of the Assessee for the statistical purposes. For, the detail discussion, please refer the aforementioned paragraph. The ld. DR also agreed that whatever will be the findings for the assessment year 2007-08 shall also be applied for the year under consideration i.e. AY 2006-07. Accordingly the para 9.1 and 9.2 on pages 11 and 12 of the ITAT order is modified as under: 9.1 At the outset, we note that the identical issue has been allowed in favour of the assessee for the statistical purposes in its own case in ITA No. 2993/AHD/2011. The relevant extract of the order is reproduced as under: 16. “We have heard the rival contention of both the parties and perused the materials available on record. The benefit of 5% in the variation of Arm Length Price has already been inbuilt under the provision of law. Accordingly, we direct the AO to find out whether the variation in Arm Length Price exceed more than 5% in the manner as provided under the provisions of law and if not, then the assessee should be given the benefit of the proviso of section 92(C) of the Act. Hence the ground of appeal of the assessee is allowed for the statistical purposes.” 9.2 In view of the above, respectfully following the order as discussed above, we are inclined to set aside the issue to the file of the AO for fresh adjudication as per the provisions of law and in the light of the above stated discussion. Hence the ground of appeal of the assessee, for the statistical purposes, is allowed. M.A Nos.130-131/AHD/2021 In ITA Nos.2293 & 2779/Ahd/2011 & 2012 Asstt. Years 2007-08 & 2006-07 5 8. In the result, the MA filed by the assessee, is allowed. 9. In the combined results, both the Miscellaneous Applications filed by the assessee are allowed. Order pronounced in the Court on 13/01/2022 at Ahmedabad. Sd/- Sd/- (MADHUMITA ROY) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER (True Copy) Ahmedabad; Dated 13/01/2022 Manish