PERI (INDIA) PVT LTD., Mumbai V. Jt. CIT (OSD) CIRCLE-13(1)(2), Mumbai

MA 132/MUM/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 4990 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-09-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: J
• Assessment Year: 2012-2013
• Appeal Filed On: 16-06-2021
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VIJAYKUMAR G SUBRAMANIAM
• Keywords: Transfer pricing; Rectification of order; Additional evidence
• Section: 206AA; 254(2)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH J, MUMBAI , . , BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER & SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER .. . 132 / /20 21 ... . 4608 / / 20 19 (. .2012-13 ) M.A. NO.132/MUM/2021 IN ITA NO. 4608/MUM/2019 (A.Y.2012-13) .. . 133 / /20 21 ... . 4607 / / 20 19 (. .2013-16 ) M.A. NO.133/MUM/2021 IN ITA NO. 4607/MUM/2019 (A.Y.2013-14) PERI (INDIA) PVT. LTD. 1406 DLH PARK, S.V. ROAD, GOREGAON (WEST), MUMBAI-400062. PAN: AAECP4115E ...... [ / APPLICANT VS. JCIT (OSD)-CIRCLE-13(1)(2), ROOM NO. 218, 2 ND FLOOR, AAYAKAR BHAVAN, MUMBAI-400020. ..... / RESPONDENT [ / APPLICANT BY : SHRI M.P. LOHIA / RESPONDENT BY : SH. VIJAYKUMAR G. SUBRAMANIAM / DATE OF HEARING : 06/08/2021 / DATE OF PRONOUNCEMENT : 15/09/2021 / ORDER PER VIKAS AWASTHY, J.M: THE ASSESSEE HAS FILED MISCELLANEOUS APPLICATION (MA) NO. 132/MUM/2021 SEEKING RECTIFICATION IN THE ORDER OF TRIBUNAL DATED 05.03.2020 PASSED IN ITA NO. 4608/MUM/2019 FOR THE ASSESSMENT YEAR (AY) 2012-13. 2 .. . 132 & 133 / /20 21 (. .2012-13 & 2013-14 ) M.A. NO.132 & 133/MUM/2021 (A.Y.2012-13 & 2013-14) 2. THE LD. AUTHORIZED REPRESENTATIVE (AR) POINTED THAT IN PARA-6 OF THE ORDER WHILE DECIDING GROUND NO.3 TO 4 OF THE APPEAL RELATING TO ADJUSTMENT ON ACCOUNT OF PAYMENT OF I.T. LICENCE MAINTENANCE COST, THE TRIBUNAL HAS RESTORED THE ISSUE BACK TO THE FILE OF TRANSFER PRICING OFFICER (TPO)/ASSESSING OFFICER (AO) TO EXAMINE THE RELEVANT DOCUMENTS/EVIDENCE. SINCE, THE ENTIRE MATERIAL IS AVAILABLE BEFORE THE TRIBUNAL, THE GROUND NO. 3 TO 5 SHOULD HAVE BEEN DECIDED BY THE TRIBUNAL INSTEAD OF REMITTING IT TO THE AO/TPO. 2.1 THE LD. AR FURTHER SUBMITTED THAT IN PARA-11 OF THE ORDER WHILE ADJUDICATING GROUND OF APPEAL NO. 6 TO 11 RELATING TO ADJUSTMENT ON ACCOUNT OF PAYMENT OF INTEREST ON TRADE CREDITORS, THE TRIBUNAL HAS OBSERVED THAT THE ASSESSEE HAS FILED ADDITIONAL EVIDENCE. THE LD. AR POINTED THAT AT THE TIME OF HEARING OF APPEAL, HE DID MENTION THAT HE WOULD BE FURNISHING INTERNAL CIRCULAR OF THE ASSESSEE TO SUPPORT HIS CONTENTION. SINCE, THE SAID CIRCULAR WAS NOT FURNISHED IN PROCEEDINGS BEFORE THE AUTHORITIES BELOW, IT WOULD BE AN ADDITIONAL EVIDENCE. HOWEVER, THE PRAYER TO ADMIT ADDITIONAL WAS NOT PRESSED AND NO REFERENCE WAS MADE TO THE SAID INTERNAL CIRCULAR WHILE ADDRESSING THE ISSUE. THERE IS MISTAKE IN PARA-11 OF THE ORDER IN MAKING REFERENCE TO THE ADDITIONAL EVIDENCE AND RESTORING THE GROUNDS TO THE AO/TPO TO DECIDE THE ISSUE AFRESH IN THE LIGHT OF ALLEGED ADDITIONAL EVIDENCE FILED BY THE ASSESSEE. 3. PER CONTRA, SHRI VIJAYKUMAR G. SUBRAMANIAM REPRESENTING THE DEPARTMENT VEHEMENTLY OPPOSED THE FIRST PRAYER OF THE ASSESSEE SEEKING RECTIFICATION IN PARA-6 OF THE TRIBUNAL ORDER. THE LD. DR SUBMITTED THAT THERE IS NO MISTAKE APPARENT ON RECORD. THE TRIBUNAL HAS RIGHTLY RESTORED THE ISSUE BACK TO THE FILE OF AO FOR FRESH EXAMINATION OF THE ISSUE IN THE LIGHT OF EVIDENCE FURNISHED BY THE ASSESSEE. IN RESPECT OF SECOND SUBMISSION MADE BY LD. AR 3 .. . 132 & 133 / /20 21 (. .2012-13 & 2013-14 ) M.A. NO.132 & 133/MUM/2021 (A.Y.2012-13 & 2013-14) SEEKING RECTIFICATION IN PARA-11 OF THE ORDER, THE LD. DR SUBMITTED THAT IF THE ASSESSEE IS NOT PLACING RELIANCE ON ADDITIONAL EVIDENCE, THE GROUNDS OF APPEAL NO. 6 TO 11 CAN BE DECIDED BY THE TRIBUNAL ON THE BASIS OF MATERIAL ALREADY AVAILABLE ON RECORD. 4. BOTH SIDES HEARD. THE ASSESSEE/APPLICANT HAS FILED THIS MISCELLANEOUS APPLICATION SEEKING RECTIFICATION IN THE TRIBUNAL ORDER DATED 05.03.2020 ON TWO COUNTS: 4.1 THE FIRST IS RECTIFICATION IN PARA-6 OF THE ORDER: WE FIND THAT THE CIT(A) IN THE IMPUGNED ORDER HAS GIVEN A FINDING THAT NO TAX HAS BEEN DEDUCTED BY THE ASSESSEE ON PAYMENT OF RS. 5,89,732/- FOR I.T. LICENCE MAINTENANCE COST. WHEREAS, THE CONTENTION OF ASSESSEE IS THAT THE ASSESSEE HAS DEDUCTED TAX AT THE RATE OF 21.115% UNDER SECTION 206AA OF THE ACT. THE TRIBUNAL AFTER CONSIDERING ENTIRE FACTS HAS RESTORED THE ISSUE BACK TO THE FILE OF TPO/AO TO RE- EXAMINE THE ISSUE. SINCE, THE ISSUE REQUIRED EXAMINATION OF DOCUMENTS, THE TRIBUNAL HAS RIGHTLY RESTORED THE ISSUE BACK TO TPO/AO. THE LD. AR OF THE ASSESSEE HAS FAILED TO POINT OUT ANY MISTAKE MUCH LESS ANY APPARENT MISTAKE REQUIRING INDULGENCE UNDER SECTION 254(2) OF THE ACT. THEREFORE, THE FIRST PRAYER MADE BY THE LD. AR OF THE ASSESSEE IS REJECTED. 4.2. THE SECOND PRAYER OF THE ASSESSEE IS IN RESPECT OF RECTIFICATION OF MISTAKE IN PARA-11 OF THE SAID ORDER. IT HAS BEEN POINTED BY LD. AR OF THE ASSESSEE THAT THE TRIBUNAL HAS WRONGLY MENTIONED IN THE ORDER THAT THE ASSESSEE FILED ADDITIONAL EVIDENCE I.E. CIRCULAR ISSUED BY PERI GMBH (PARENT COMPANY OF THE ASSESSEE/APPLICANT). THE LD. AR OF THE ASSESSEE MADE A STATEMENT AT THE BAR THAT THOUGH THE SAID CIRCULAR WAS FILED BUT NO RELIANCE WAS BEING PLACED ON THAT 4 .. . 132 & 133 / /20 21 (. .2012-13 & 2013-14 ) M.A. NO.132 & 133/MUM/2021 (A.Y.2012-13 & 2013-14) CIRCULAR AND PRAYER TO ADMIT AFORESAID CIRCULAR AS ADDITIONAL EVIDENCE WAS NOT MADE. THE ASSESSEE DOES NOT WANT TO PLACE RELIANCE ON THE SAID CIRCULAR AS THE ISSUE CAN BE DECIDED WITHOUT MAKING REFERENCE TO THE ABOVE CIRCULAR. IN THE LIGHT OF STATEMENT MADE BY LD. AR OF THE ASSESSEE, WE ARE OF CONSIDERED VIEW THAT THE ERROR HAS CREPT IN THE ORDER OF TRIBUNAL IN TAKING COGNIZANCE OF THE CIRCULAR AS ADDITIONAL EVIDENCE. SINCE, NO RELIANCE WAS PLACED BY LD. AR OF THE ASSESSEE, THE TRIBUNAL HAS ERRED IN TAKING COGNIZANCE OF THE CIRCULAR. THEREFORE, THE SECOND PRAYER OF THE ASSESSEE SEEKING RECTIFICATION OF THE FINDING IN PARA-11 OF THE ORDER OF TRIBUNAL DATED 05.03.2021 IS ACCEPTED. THE ORDER OF TRIBUNAL IN ITA NO. 4608/MUM/2019 FOR A.Y. 2012-13 IS RECALLED FOR THE LIMITED PURPOSE OF ADJUDICATING GROUND NOS. 6 TO 11 OF THE GROUNDS OF APPEAL. 5. IN THE RESULT, M.A. NO. 132/MUM/2021 IS PARTLY ALLOWED IN THE TERMS AFORESAID. M.A. NO. 133/MUM/2012 A.Y. 2013-14 6. THE ASSESSEE HAS FILED M.A. NO. 133/MUM/2021 SEEKING RECTIFICATION IN THE ORDER OF TRIBUNAL IN ITA NO. 4607/MUM/2019 DECIDED VIDE ORDER DATED 05.03.2021. THE LD. AR SUBMITTED THAT THE TRIBUNAL WHILE ADJUDICATING GROUND OF APPEAL NOS. 2 TO 6 RELATING TO ADJUSTMENT ON ACCOUNT OF PAYMENT FOR CORPORATE GUARANTEE FEE HAS HELD THAT THE ASSESSEE HAS FILED ADDITIONAL EVIDENCE IN THE FORM OF INTERNAL CIRCULAR, WHEREAS THE ASSESSEE DID NOT PLACE RELIANCE ON ANY ADDITIONAL EVIDENCE IN RESPECT OF ISSUE RAISED IN GROUNDS OF APPEAL NOS. 2 TO 6. 7. THE APPEAL OF ASSESSEE IN ITA NO. 4608/MUM/2019 AND 4607/MUM/2019 FOR A.Y. 2012-13 & 2013-14 WERE DECIDED BY TRIBUNAL VIDE COMMON ORDER 5 .. . 132 & 133 / /20 21 (. .2012-13 & 2013-14 ) M.A. NO.132 & 133/MUM/2021 (A.Y.2012-13 & 2013-14) DATED 05.03.2021. WHILE DECIDING THE FORMER APPEAL I.E. FOR A.Y. 2013-14, THE TRIBUNAL HAS PLACED RELIANCE ON THE FINDINGS GIVEN IN PARA-11 OF THE ORDER WHEREIN THE ISSUE WAS RESTORED BACK TO THE FILE OF TPO/AO. SINCE, THE FINDINGS GIVEN IN PARA-11 OF THE ORDER HAVE ALREADY BEEN RECALLED, FOR PARITY OF REASONS, WE DEEM IT APPROPRIATE TO RECALL THE FINDINGS GIVEN IN PARA-18 WHEREBY GROUND NOS. 2 TO 6 IN ITA NO. 4607/MUM/2019 AND ADJUDICATED. THE ORDER DATED 05.03.2021 IN ITA NO. 4607/MUM/2019 IS RECALLED FOR THE LIMITED PURPOSE TO ADJUDICATE GROUND NO.2 TO 6 OF THE APPEAL, DENOVO. M.A. IN ITA NO. 4607/MUM/2019 IS ALLOWED, ACCORDINGLY. ORDER PRONOUNCED IN THE OPEN COURT ON WEDNESDAY , THE 15 TH DAY OF SEPTEMBER, 2021. SD/- SD/- (S.RIFAUR RAHMAN) (VIKAS AWASTHY) /ACCOUNTANT MEMBER / JUDICIAL MEMBER / MUMBAI, / DATED: 15/09/2021 SK, PS COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT , 2. / THE RESPONDENT. 3. ( )/ THE CIT(A)- 4. CIT 5. , . . . , / DR, ITAT, MUMBAI 6. [ / GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI