The Deputy Commissioner Of Income Tax, Circle-3(1)(1), Bangalore V. M/s. GXS India Technology Centre Private Limited, Bangalore

MA 137/BANG/2021

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 5736 (ITAT-BANGALORE)
• Duration Of Justice: 7 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-12-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 25-04-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Transfer pricing
• Section: 260A

Judgement Text

MP No.137/Bang/2021 M/s. GXS India Technology Centre Pvt. Ltd., Bangalore IN THE INCOME TAX APPELLATE TRIBUNAL “B’’BENCH: BANGALORE BEFORE SHRI B. R. BASKARAN, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER M.P. No.137/Bang/2021 (Arising out of IT(TP)A No.80/Bang/2014 AssessmentYear: 2005-06 Deputy Commissioner of Income-tax Circle-3(1)(1) Bangalore Vs. M/s. GXS India Technology Centre Pvt. Ltd. Prestige Emerald 2, 3 & 4 th Floor, Municipal No.2 Madras Bank Road Lavelle Road Junction Bangalore PAN NO : AABCG7972P APPELLANT RESPONDENT Appellant by : Sri Narendra Kumar Naik, D.R. Respondent by : Smt. Rashmi, A.R. Date of Hearing : 10.12.2021 Date of Pronouncement : 23.12.2021 O R D E R PER B.R. BASKARAN, ACCOUNTANT MEMBER: The revenue has filed this miscellaneous application submitting that the Tribunal order dated 18.9.2020 passed in IT(TP)A No.80/Bang/2014 suffers from mistake apparent from record. 2. The miscellaneous petition filed by the revenue reads as under:- MP No.137/Bang/2021 M/s. GXS India Technology Centre Pvt. Ltd., Bangalore Page 2 of 5 “The assessee company filed the return of income for AY 2005-06 declaring total income of Rs. 3,73,470/-. Subsequently the case was selected for scrutiny. The final assessment order was passed determining the assessed income as Rs. 5,61,79,010/-. Aggrieved by the assessment order, the assessee filed an appeal before the Ld. CIT(A) which vide its order partly allowed the appeal of the assessee. Aggrieved by the Ld. CIT(A) order, the assessee and department filed an appeal before the Hon'ble ITAT. The Hon'ble ITAT dismissed the appeal of the department for vide order IT(TP)A No. 80/Bang/2014 and allowed the appeal of the assessee for vide order IT(TP)A No. 87/Rang/2014 dated 18.09.2020. The department filed an appeal against the order of Ld. CIT(A) which vide its order allowed the deduction u/s 10A of the Act to the assessee and gave partial relief to the assessee on transfer pricing adjustment. The Hon'ble ITAT vide its order in IT(TP)A No. 80/Bang/2014 upheld the order of Ld. CIT(A) on the issue relating to deduction claimed by the assessee u/s 10A of the Act. The Hon'ble ITAT in para 5 of order referred above has dismissed the appeal of the revenue. The Paragraph 5 of Hon'ble ITAT's order is reproduced below. "The Ld. AR also submitted that the order passed by the Tribunal has since been upheld by Hon'ble High Court of Karnataka, vide its order dated 14t h day of November, 2018 passed in Income Tax Appeal no. 4 of 2011. Since the Ld. CIT(A) has followed the decision rendered by the coordinate bench on this issue, which has since been upheld by Hon'ble Karnataka High Court, we do not find any infirmity in this order. Accordingly, the appeal of the revenue is dismissed.” With respect to the appeal filed by the department, regarding the inclusion of comparable, M/s. Infosys Ltd, M/s. Satyam Infotech Ltd, M/s. Flextronics Ltd and M/s. L&T Infotech Ltd, the Hon'ble ITAT has not adjudicated the issue on merits in its order regarding the inclusion of these comparable. Therefore, it is respectfully prayed that order of the Hon'ble Tribunal in IT(TP)A No. 80/Bang/2014 dated 18.09.2020 for AY 2005-06 may be suitably modified considering the above.” 3. A perusal of above said petition would show that the only mistake pointed out by the revenue is that the Tribunal has not adjudicated the issue regarding inclusion of comparable companies namely M/s. Infosys Ltd., M/s. Satyam Infotech Ltd., M/s. MP No.137/Bang/2021 M/s. GXS India Technology Centre Pvt. Ltd., Bangalore Page 3 of 5 Flextronics Ltd. and M/s. Larsen & Toubro Infotech Ltd in connection with the Transfer pricing adjustments made by the TPO. 4. At the time of hearing, the Ld. A.R. pointed out that the revenue has not raised any ground with regard to the inclusion of above said companies. 5. The Ld. D.R. on the contrary, supported the petition filed by the revenue. 6. We heard the parties and perused the record. The grounds of appeal urged by the revenue in its appeal read as under:- 1. “The order of the Learned CIT(Appeals) is opposed to law and the facts and circumstances of the case. 2. The CIT(A) erred in striking down the action of the AO in denying the deduction u/s 10A on the ground that the undertaking was formed from the splitting up of or reconstruction of the existing business by relying on the decision of the ITAT vide its order dt. 10.08.2010 in the assessees own case in ITA No 616 of 2009 for the A.Y 04-05 without appreciating the fact that the issue has not reached the finality as an appeal u/s 260A is pending before the HC on the relied upon order. 3. The CIT(A) erred in striking down the action of the AO in denying the deduction u/s 10A without appreciating the fact that the order relied upon by the CIT(A) inter-alia relied upon the decision of the ITAT in the case of LG Soft India Pvt. Ltd. which has also not been accepted by the revenue and an appeal u/s 260A is pending against the said decision also. 4. The CIT(A) erred in striking down the action of the AO in denying the deduction u/s 10A without appreciating the fact that the Tribunal in the relied upon order had not appreciated that the conditions of Section 10A(2)(1)(b), 10A(2)(ii) and 10(2)(iii) were not fulfilled by the assessee. 5. For these and such other grounds that may be urged at the time of hearing, it is humbly prayed that the order of the CIT(A) be reversed and that of the Assessing Officer be restored.” MP No.137/Bang/2021 M/s. GXS India Technology Centre Pvt. Ltd., Bangalore Page 4 of 5 6. The appellate craves leave to add, to alter, to amend or delete any of the grounds that may be urged at the time of hearing of the appeal.” 7. A perusal of above said grounds of appeal would show that the revenue has not raised any ground with regard to the relief granted by Ld CIT(A) in respect of transfer pricing adjustment made by TPO, more particularly, on inclusion of comparable companies mentioned in the miscellaneous petition. In the absence of any ground, there could not be any occasion for the Tribunal to deal with the same. Hence, the petition filed by the revenue is against facts available on record and hence it cannot be said that the order passed by the Tribunal suffers from any mistake apparent from record. Accordingly, we do not find any merit in the petition filed by the revenue. 8. In the result, the miscellaneous application filed by the revenue is dismissed. Order pronounced in the open court on 23 rd Dec, 2021 Sd/- (Beena Pillai) Judicial Member Sd/- (B.R. Baskaran) Accountant Member Bangalore, Dated 23 rd Dec, 2021. VG/SPS MP No.137/Bang/2021 M/s. GXS India Technology Centre Pvt. Ltd., Bangalore Page 5 of 5 Copy to: 1. The Applicant 2. The Respondent 3. The CIT 4. The CIT(A) 5. The DR, ITAT, Bangalore. 6. Guard file By order Asst. Registrar, ITAT, Bangalore.