MOTT MACDONALD P.LTD, MUMBAI V. ASST CIT 2(2)(1), MUMBAI

MA 15/MUM/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4579 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-04-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2010-2011
• Appeal Filed On: 16-01-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

MA No 15/Mum/2022 In CO No. 42/Mum/2015 Assessment year: 2010-11 Page 1 of 3 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI 'J' BENCH, MUMBAI [Coram: Pramod Kumar (Vice President), and Amarjit Singh (Judicial Member)] MA No 15/Mum/2022 In CO No. 42/Mum/2015 Assessment year: 2010-11 Mott MacDonald Private Ltd., ...................... Appellant (Successor to Mott MacDonald Consultants India Pvt Ltd.) 44, Khanna Construction House, Dr. R.G Thandani Marg, Worli, Mumbai 400018 [PAN: AABCM0834G] Vs. Assistant Commissioner of Income Tax 2(2)(1) Mumbai ........................ Respondent Appearances by Aarti Vissanji for the applicant Milind Chavan for the respondent Date of concluding the hearing : March 25, 2022 Date of pronouncement the order : April 28, 2022 ORDER Per Pramod Kumar, VP: 1. By way of this application, the asseesee point out the following mistake in our order dated 31 st August 2021. 1. The Applicant submits that at the hearing of the Cross Objection, which was taken up at the start, the fact that the above issue was covered in favour of the Applicant by the order passed by the Hon'ble Tribunal in the Applicant's own case for Assessment Year 2009-10 was not disputed. The Hon'ble Tribunal has relied upon its order passed for Assessment Year 2009-10 and disposed of this ground in paragraph 5 as under: "5. We see no reasons to take any other view of the matter than the view taken by the co- ordinate bench. Accordingly, we deem it fit and proper to remit the matter to the file of the Assessing Officer for fresh adjudication and determination of arm's length price under the CPM method and in the light of the above observations made by the co-ordinate bench for the MA No 15/Mum/2022 In CO No. 42/Mum/2015 Assessment year: 2010-11 Page 2 of 3 immediately preceding assessment year. The matter was restored at the assessment stage with the directions said above. (Emphasis supplied) The Applicant states that a substantial part of the order passed for Assessment Year 2009-10 has been reproduced in paragraph 4 of the order passed for the relevant assessment year. In Assessment Year 2009-10, the Hon'ble Tribunal in paragraph 9 deleted the additional holding that: “...For the detailed reasons set out above, we find that the reasoning adopted by the IPO was incorrect and thus unsustainable in law. Accordingly, the impugned ALP adjustment of Rs.1,80,00,639 by rejecting the CPM method adopted by the assessee and by adopted the INMM method for ascertaining the arm's length price, must be deleted for this short reason alone." (Emphasis supplied) 5. The Applicant submits that the Hon'ble Tribunal has accepted the PM in both assessment years 2009-10 and 2010-11 and rejected the TNMM adopted by the Assessing Officer. In the order passed by the Hon'ble Tribunal for Assessment Year 2009-10, the addition was deleted. However, in paragraph 5 of the order passed for the relevant assessment year the Hon'ble Tribunal records that "the matter was restored at the assessment stage with directions said above". The Applicant submits since the matter was not restored in assessment year 2009-10, this observation of the Hon'ble Tribunal is an error apparent on the face of the record. Consequent to this error the Hon 'ble Tribunal has, for the relevant assessment year, remitted the matter back to the Assessing Officer for fresh adjudication. The Applicant submits that the Hon'ble Tribunal having held in paragraph 5 that "We see no reasons to take any other view of the matter than the view so taken by the co-ordinate bench" (emphasis supplied) ought to have deleted the addition instead of remitting the issue for fresh adjudication. 6. The Applicant respectfully submits that the above error is an error apparent on the face of the record. The Applicant therefore prays that in the circumstances it is in the interest of justice, that the said error in the order passed for the relevant assessment year being apparent on the face of the record, be rectified. 2. Learned Departmental Representative does not dispute the submissions so made by the assessee-applicant, but relies upon the impugned order nevertheless. 3. Heard the parties; perused the material on records. 4. The plea of the assessee applicant is indeed correct. Accordingly, Second and Third sentence of paragraph 5 stands deleted and substituted by the sentence “The impugned addition thus stands deleted.” Similarly first sentence of para 6 stands deleted and substituted by the sentence “As the impugned addition stands deleted, the grievances raised in the cross objection are rendered infructuous”. With these modifications, the order stand corrected. Ordered, accordingly. The corrected paragraph 5 & 6 are thus as follows:- MA No 15/Mum/2022 In CO No. 42/Mum/2015 Assessment year: 2010-11 Page 3 of 3 5. We see no reasons to take any other view of the matter than the view taken by the co- ordinate bench. The impugned addition thus stands deleted. 6. As the impugned addition stands deleted, grievances raised in cross objections are rendered infructuous . The said grievances are as follows:- 1. On the facts and in the circumstances of the case and in law, the Hon’ble DRP erred in linking the allow ability of a sum under the provisions of the Income tax Act, 1961 with the characterization of amount as operating or non operating cost. 2. On the facts and in the circumstances of the case and in law, the Hon’ble DRP erred in holding that treating the provisions for bad and doubtful debts as operating cost will amount to double disallowance. 5. In the result, the miscellaneous application is allowed in the terms indicated above. Pronounced in the open court today on the 28 th day of April 2022. Sd/- Sd/- Amarjit Singh Pramod Kumar (Judicial Member) (Vice President) Mumbai, dated the 28 th day of April, 2022 Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) DR (6) Guard File By order True Copy Assistant Registrar/ Sr. PS Income Tax Appellate Tribunal Mumbai benches, Mumbai