Appeal details
Counselvise Citation
[2018] 124 COUNSELVISE.COM (IT) 6778 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 year(s) 2 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
08-06-2018
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
K
Assessment Year
2008-2009
Appeal Filed On
06-06-2016
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH K , MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH , JUDICIAL MEMBER M A NO. 130 /MUM/201 6 ( ARISING OUT OF ITA NO. 1581 / MUM /201 4 ) : (A.Y : 20 08 - 09 ) M/S. BLACKSTONE ADVISORS INDIA PRIVATE LIMITED , 5 TH FLOOR, EXPRESS TOWERS, NARIMAN POINT, MUMBAI 400 021. PAN : AA CCB7376D (APPLICANT) VS. DCIT, CIRCLE - 6(1) , MUMBAI (RESPONDENT) APPLICANT BY : SHRI PORUS KAKA RESPONDENT BY : SHRI SAURABH DESHPANDE DATE OF HEARING : 08 / 06 /201 8 DATE OF PRONOUNCEMENT : 08 / 06 /201 8 O R D E R PER G.S. PANNU , AM : THE CAPTIONED MISCELLANEOUS APPLICATION HAS BEEN PREFERRED BY THE ASSESSEE IN THE CONTEXT OF THE ORDER PASSED BY THE TRIBUNAL IN ITA NO. 1581/MUM/2014 FOR ASSESSMENT YEAR 2008 - 09 DATED 09.03.2016. 2. AT THE TIME OF HEARING, THE LEARNED REPRESENTATIVE FOR THE APPLICANT POINTED OUT THAT ON TWO POINTS RELATING TO DETERMINATION OF ARMS LENGTH PRICE OF THE INVESTMENT ADVISORY SERVICES, THE TRIBUNAL HAS INADVERTENTLY NOT GIVEN ANY FIND ING. ELABORATING THE SAME, OUR ATTENTION WAS INVITED TO 2 MA NO. 130/MUM/2016 M/S. BLACKSTONE ADVISORS INDIA PVT. LTD. GROUND OF APPEAL NO. 10 RAISED IN THE MEMO OF APPEAL, WHICH READS AS UNDER: - 10. THE LEARNED DCIT/DRP ERRED IN HOLDING MOTILAL OSWAL INVESTMENT ADVISORS PVT. LTD., MOTILAL OSWAL PRIVATE EQUITY ADVISORS PVT. LTD. AND BRESCON CORPORATE ADVISORS PVT. LTD. AS COMPARABLE TO THE APPELLANT. 3. IT IS POINTED OUT THAT IN PARA 7 OF THE ORDER, TRIBUNAL NOTES THAT APART FROM OTHER CONCERNS, M/S. MOTILAL OSWAL PRIVATE EQUITY ADVISORS PVT. LTD. WAS ALSO ADO PTED AS A COMPARABLE CONCERN BY THE INCOME - TAX AUTHORITIES . IT IS POINTED OUT THAT BY WAY OF GROUND OF APPEAL NO. 10, ASSESSEE HAS SOUGHT EXCLUSION OF THE SAID CONCERN FROM THE FINAL SET OF COMPARABLES ALONGWITH THE OTHER TWO CONCERNS, NAMELY, M/S. MOTILAL OSWAL INVESTMENT ADVISORS PVT. LTD. AND M/S. BERSCON COR PORATE ADVISORS PVT. LTD. IT IS POINTED OUT THAT WHILE THE TRIBUNAL HAS DETERMINED THE ISSUE WITH REGARD TO THE EXCLUSION OF M/S. MOTILAL OSWAL INVESTMENT ADVISORS PVT. LTD. AND M/S. BERSCON CORPORATE ADVISORS PVT. LTD., BUT THE DETERMINATION O N THE EXCLU SION OF M/S. MOTILAL OSWAL PRIVATE EQUITY ADVISORS PVT. LTD. IS ABSENT. 4. THE LD. DR APPEARING FOR THE REVENUE DID NOT CONTEST THE FACTUAL OMISSION BROUGHT OUT BY THE LEARNED REPRESENTATIVE FOR THE APPLICANT. 5. HAVING PERUSED THE ORDER OF THE TRIBUNAL DATED 09.03.2016 (SUPRA) AS WELL AS THE OTHER MATERIAL ON RECORD, WE FIND THAT THE OMISSION TO DETERMINE THE DISPUTE REGARDING EXCLUSION OF M/S. MOTILAL OSWAL PRIVATE EQUITY ADVISORS PVT. LTD. FR O M THE FINAL LIST OF COMPARABLES IS AN INADVERTENT MISTAKE, W HICH HAS CREPT INTO THE ORDER OF THE TRIBUNAL. THEREFORE, TO THE SAID EXTENT THE ORDER OF TRIBUNAL IS RECALLED QUA THE GROUND OF APPEAL NO. 10 RELATING TO 3 MA NO. 130/MUM/2016 M/S. BLACKSTONE ADVISORS INDIA PVT. LTD. EXCLUSION OF M/S. MOTILAL OSWAL PRIVATE EQUITY ADVISORS PVT. LTD. FROM THE FINAL LIST OF COMPARABLES . 6. THE SECOND MISTAKE WHICH IS SOUGHT TO BE POINTED OUT BY THE LEARNED REPRESENTATIVE IS IN CONTEXT OF GROUND OF APPEAL NO. 5 IN THE ORIGINAL MEMO OF APPEAL, WHICH READS AS UNDER : - 5. THE LEARNED DCIT/DRP GROSSLY ERRED IN REJECTING COMPANIES BROADLY ENGAGED IN SIMILAR LINES OF BUSINESS AS THE APPELLANT AND WHICH WERE SELECTED BY THE APPELLANT IN ITS TRANSFER PRICING STUDY. 7. BY REFERRING TO PARA 11 OF THE ORDER OF TRIBUNAL DATED 09.03.2016 (SUPRA), THE LEARNED REPRESENTATIVE POINTED OUT THAT THE PL EA OF THE ASSESSEE WAS TO INCLUDE THE FOLLOWING THREE CONCERNS AS COMPARABLES, NAMELY, M/S. ICRA MANAGEMENT CONSULTANCY SERVICES LTD., M/S. ICRA ONLINE LTD. AND M/S. IDC INDIA LTD. 8. THE LEARNED REPRESENTATIVE POINTED OUT THAT WHEREAS THE TRIBUNAL HAS DE TERMINED THE ISSUE RELATING TO INCLUSION OF M/S. ICRA MANAGEMENT CONSULTANCY SERVICES LTD., BUT THE DETERMINATION OF INCLUSION OF THE OTHER TWO CONCERNS, NAMELY, M/S. ICRA ONLINE LTD. AND M/S. IDC INDIA LTD. IN THE FINAL LIST OF COMPARABLES IS ABSENT IN TH E ORDER. IT WAS, THEREFORE, CANVASSED THAT TO THE SAID EXTENT, THE ORDER OF THE TRIBUNAL BE RECALLED FOR ADJUDICATION ON THE ISSUE OF INCLUSION OF THE AFORESAID TWO CONCERNS IN THE FINAL LIST OF COMPARABLES. 4 MA NO. 130/MUM/2016 M/S. BLACKSTONE ADVISORS INDIA PVT. LTD. 9. ON THIS POINT, THOUGH THE LD. DR DID NOT OP POSE THE PLEA, BUT POINTED OUT THAT AS PER PARA 14 OF THE ORDER OF TRIBUNAL DATED 09.03.2016 (SUPRA) , THEIR DETERMINATION WAS LEFT OUT AS IT WAS ACADEMIC IN NATURE ON ACCEPTING THE PLEA OF THE ASSESSEE THAT IF TWO OF THE COMPARABLES SELECTED BY THE TPO WER E EXCLUDED AND ONE OF ASSESSEES COMPARABLE CONCERNS WAS INCLUDED AS A COMPARABLE, THEN THE DETERMINATION OF INCLUSION OF THE AFORESAID TWO CONCERNS WOULD BE RENDERED ACADEMIC. TO THIS, THE LEARNED REPRESENTATIVE POINTED OUT THAT THE PLEA WAS BASED ON THE PRESUMPTION THAT THREE OF THE COMPARABLES SELECTED BY THE TPO WERE EXCLUDED AND ONE OF ASSESSEES COMPARABLES WA S INCLUDED, ONLY THEN THE DECISION ON THE OTHER CONCERNS WOULD BE ACADEMIC AS THE STATED PRICE WOULD FALL WITHIN THE TOLERANCE LIMIT OF THE ARMS LENGTH PRICE. HOWEVER, IT IS POINTED OUT THAT OUT OF THE THREE EXCLUSIONS SOUGHT BY THE ASSESSEE, DETERMINATI ON WAS DONE ONLY WITH REGARD TO TWO OF THE CONCERNS AND, THEREFORE, THE SAID POSITION NOTED BY THE TRIBUNAL IN PARA 14 WOULD NOT OPERAT E . 10. BE THAT AS IT MAY, AFTER CONSIDERING THE RIVAL STANDS, WE FIND THAT ASSESSEE HAS RAISED A GROUND RELATING TO TH E INCLUSION OF M/S. ICRA ONLINE LTD. AND M/S. IDC INDIA LTD., WHICH HAVE BEEN LEFT OUT FOR DETERMINATION, AND THE SAME CONSTITUTES A MISTAKE WITHIN THE MEANING OF SEC. 254(2) OF THE ACT. THEREFORE, OUR ORDER DATED 09.03.2016 (SUPRA) IS RECALLED QUA THE GR OUND OF APPEAL NO. 2 TO THE LIMITED EXTENT OF CONSIDERING ASSESSEES PLEA FOR INCLUSION OF M/S. ICRA ONLINE LTD. AND M/S. IDC INDIA LTD. IN THE FINAL SET OF COMPARABLES. 11. ACCORDINGLY, BOTH THE PARTIES WERE INFORMED THAT THE APPEAL SHALL BE LISTED BEFOR E A REGULAR BENCH FOR HEARING THE PARTIES ON THE AFORESAID TWO 5 MA NO. 130/MUM/2016 M/S. BLACKSTONE ADVISORS INDIA PVT. LTD. ASPECTS AND APPROPRIATE DETERMINATION THEREOF. THE DATE OF HEARING WAS ANNOUNCED IN THE OPEN COURT AS 19.09.2018. SINCE THE DATE OF HEARING HAS BEEN ANNOUNCED IN THE OPEN COURT, THE REQUIREME NT OF ISSUANCE OF FORMAL NOTICE OF HEARING IS HEREBY DISPENSED WITH. 12. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED TO THE ABOVE EXTENT. THE ABOVE DECISION WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF BOTH THE PARTIES AT THE CONCLUSION OF THE HEARING ON 8 TH JUNE , 201 8 . SD/ - SD/ - ( MAHAVIR SINGH ) JUDICIAL MEMBER (G.S. PANNU) ACCOUNTANT MEMBER MUMBAI, DATE : 8 T H JUNE , 201 8 * SSL * COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, K BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI
