M/s. Marubeni India (P) Ltd, New Delhi V. ACIT, New Delhi

MA 132/DEL/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7509 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-01-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2002-2003
• Appeal Filed On: 13-05-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MRS SRUJANI MOHANTY
• Assessee Lawyers: G C SRIVASTAVA
• Keywords: Transfer pricing

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : E NEW DELHI BEFORE SHRI G.D. AGARWAL, VICE PRESIDENT AND SHRI RAJPAL YADAV, JUDICIAL MEMBER MA NO. 132/DEL/2011 (IN ITA NO. 809/DEL/2009) ASSTT. YEAR 2002-03 M/S. MARUBENI INDIA PRIVATE LTD. 5 TH FLOOR, BERJAYA HOUSE (LOTUS TOWER), COMMUNITY CENTRE, NEW FRIENDS COLONY, NEW DELHI. VS. ADDITIONAL CIT, RANGE-6, NEW DELHI. APPELLANT BY: SHRI G.C. SRIVASTAVA, ADVOCATE RESPONDENT BY: MRS. SRUJANI MOHANTY, SR. DR ORDER ORDER ORDER ORDER PER RAJPAL YADAV, JM : THE PRESENT MISCELLANEOUS APPLICATION IS DIRECTED AT THE INSTANCE OF ASSESSEE POINTING OUT AN APPARENT ERROR IN THE ORDE R OF THE TRIBUNAL, DATED 18.3.2011, PASSED IN ITA NO. 809/D/2009 AND OTHER A PPEALS. IT IS PLEADED IN THE APPLICATION THAT ASSESSEE IN ITA NO. 809/DEL /2009 FOR ASSTT. YEAR 2002-03 HAS PLEADED IN GROUND NO. 12 THAT BENEFIT O F PROVISO TO SECTION 92C(2) OF THE INCOME TAX ACT HAS BEEN DENIED TO IT BY THE LD. CIT(A). IT SHOULD BE GRANTED. ACCORDING TO THE ASSESSEE, THIS BENEFIT CONTEMPLATES AN ADJUSTMENT OF +/- 5% IN THE PROFIT LEVEL INDICAT OR (PLI) OF THE ASSESSEE MA NO. 132/DEL/2011 ASSTT. YEAR 2002- 03 2 FOR THE PURPOSE OF DETERMINING ARMS LENGTH PRICE. I N OTHER WORDS, CONTENTION OF THE ASSESSEE IS THAT IT IS A STANDARD DEDUCTION WHICH OUGHT TO BE GRANTED TO THE ASSESSEE. THE ASSESSEE HAS FUR THER REPRODUCED THE OBSERVATION OF THE TRIBUNAL RECORDED IN PARAGRAPH N O. 29 & 30 OF ITS ORDER. ACCORDING TO THE ASSESSEE, TRIBUNAL HAS MADE REFERE NCE TOWARDS THE EARLIER ORDERS OF THE TRIBUNAL IN OTHER CASES BUT I N THOSE CASES THIS ISSUE HAS NOT BEEN SPECIFICALLY DEALT WITH. IT ALSO PLEAD ED THAT ASSESSEE HAS PLACED RELIANCE ON THE ORDERS OF THE TRIBUNAL IN TH E CASE OF SONY INDIA (P) LTD. VS DCIT 315 ITR 150, SKODA AUTO INDIA (P) LIMI TED V. ACIT 2011 44 SOT 457 AND OTHER CASES. IN THESE CASES, ALLEGED DE DUCTION OF 5% HAS BEEN GRANTED TO THE ASSESSEE IN THE ARITHMETIC MEAN OF THE PLI. ACCORDING TO THE ASSESSEE HAD THIS BENEFIT WAS GIVEN TO THE A SSESSEE THEN THERE COULD NOT BE ANY ADJUSTMENT. ON THE OTHER HAND, LD. DR SUBMITTED THAT THERE IS NO APPARENT ERROR IN THE ORDER OF THE TRIB UNAL. TRIBUNAL HAS DULY NOTICED ALL THESE ARGUMENTS OF THE ASSESSEE BUT DID NOT CONCUR WITH THEM. THEREFORE, IT IS A DECISION ON MERIT BY THE TRIBUNA L. 2. WE HAVE DULY CONSIDERED THE RIVAL CONTENTION AND GONE THROUGH THE RECORD CAREFULLY. THE POWER OF RECTIFICATION U/S 25 4 (2) CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFI ED IS AN OBVIOUS AND PATENT MISTAKE, WHICH IS APPARENT FROM THE RECORD, AND NOT A MISTAKE WHICH REQUIRES TO BE ESTABLISHED BY ARGUMENTS AND A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY CONCEIVAB LY BE TWO OPINIONS. THE TRIBUNAL HAS DULY CONSIDERED THE CONTENTIONS OF THE ASSESSEE AND THEREAFTER REJECTED THEM. THEREFORE, THERE IS NO AP PARENT ERROR IN THE MA NO. 132/DEL/2011 ASSTT. YEAR 2002- 03 3 ORDER OF THE TRIBUNAL. IN THE GARB OF POINTING OUT OF AN APPARENT ERROR, ASSESSEE CANNOT BE PERMITTED TO GET THE ORDER OF TH E TRIBUNAL REVIEWED. ON DUE CONSIDERATION OF THE TRIBUNALS ORDERS AND I N VIEW OF THE ABOVE DISCUSSION, WE DO NOT FIND ANY MERIT IN THIS APPLIC ATION. IT IS REJECTED. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH JANUARY, 2012. SD/- SD/- [G.D.AGARWAL] [RAJPAL YADAV] VICE PRESIDENT JUDICIAL MEMBER DATED: VEENA COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT