Huawei Technologies India Private Limited, Bangalore V. Assistant Commissioner of Income Tax, Circle-3(1)(2), Bangalore

MA 158/BANG/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 5217 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-02-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 13-12-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, VICE-PRESIDENT AND SHRI B. R. BASKARAN, ACCOUNTANT MEMBER MP No.158/Bang/2021 (in IT(TP)A No.1940/Bang/2017) Assessment Year: 2013-14 Huawei Technologies India Pvt. Ltd., SYNo.37, 46,45/3.45/4 ETC, K. No.1540, Kundalahalli Village, Whitefield, Bangalore-560 066. PAN: AAACH 8599 L. Vs. ACIT, Circle – 3(1)(2), Bengaluru. Applicant by:Shri.Aliasgar Rampurwala, CA Respondent by :Shri.Sankar Ganesh K, JCIT(DR)(ITAT), Bengaluru. Date of hearing:11.02.2022 Date of Pronouncement:11.02.2022 O R D E R Per N.V. Vasudevan, Vice-President: This is a Miscellaneous Petition (MP) filed by the assessee under section 254(2) of the Income Tax Act, 1961 (hereinafter called ‘the Act’) praying for rectification of certain apparent errors in the order of the Tribunal. It has been the plea of the assessee in this MP that the assessee’s ground for excluding CG Vak Software & Exports Ltd., Larsen & Toubro Infotech Ltd., and Persistent Systems Ltd., was adjudicated in para 31 of the Tribunal’s order in favour of the assessee. However, in paras 32 to 34, the Tribunal has again remanded the question of comparability of Larsen & Toubro Infotech Ltd., and Persistent Systems Ltd., to the AO/TPO for fresh consideration. This is the first mistake which has been pointed out in this MP. 2. The second mistake pointed out in the MP is that in para 36 of the Tribunal’s order, the comparability of CG Vak Software & Exports Ltd., was again remanded MP No.158/Bang/2021 (in IT(TP)A No.1940/Bang/2017) Page 2 of 3 to the AO for consideration afresh and this is also a mistake in contrary to the findings given in para 31 of the order of the Tribunal. The learned Cousnel for the assessee reiterated the stand of the assessee as contained in the MP. Learned DR on the other hand submitted that the Tribunal has considered conflicting decisions on the issue and has rightly given its conclusions in paras 32 to 34 and para 36 of its order in respect of comparability of the 3 companies CG Vak Software & Exports Ltd., Larsen & Toubro Infotech Ltd., and Persistent Systems Ltd. 3. We have given a very consideration to the rival submissions. In our view the submissions made by the learned DR are correct. However, there appears to be some typographical error in paragraphs 28, 30 and 31. If the rectifications of these apparent mistakes are carried out, then the order of the Tribunal would be in consonance of the conclusions arrived at by the Tribunal in paras 32 to 34 and 36 of the order. The order of the Tribunal is accordingly amended as follows: (i) In para 28 of the order of the Tribunal at page 19 in the last line of the said paragraph, the word “CIT(A)” be substituted in place of the word “DRP”. (ii) In para 30 of the order of the Tribunal at page 21 in the 6 th line from top, instead of the word “exclusion” the word “inclusion” is substituted. (iii) In the Tribunal order dated 04.08.2021 on page 22 in 7 th line of paragraph 31 in the sentence beginning with the words “Therefore, respectfully following the aforesaid decision, we direct exclusion of the following three companies from the list of comparable companies viz., CG Vak Software & Exports Ltd., Larsen & Toubro Infotech Ltd., and Persistent Systems Ltd”is substituted as follows: “Therefore, the learned Counsel for assessee submitted the following the aforesaid decision in the case of NXP (India) Pvt. Ltd., (supra), the following three companies may be excluded from the list of comparable companies viz., CG Vak Software & Exports Ltd., Larsen & Toubro Infotech Ltd., and Persistent Systems Ltd.” MP No.158/Bang/2021 (in IT(TP)A No.1940/Bang/2017) Page 3 of 3 (iv) In para 35, in the first sentence, the word “exclusion” is substituted with the word “inclusion”. In the same paragraph, the last sentence which reads as “Hence, we uphold inclusion of Spry Resources India Pvt. Ltd., as a comparable company” is corrected to read as follows: “Hence, we remand the issue of inclusion of Spry Resources India Pvt. Ltd., as a comparable company to the TPO.” 4. In the result, miscellaneous petition of the assessee is allowed to the extent indicated above. Pronounced in the open court on the date mentioned on the caption page. Sd/- Sd/- Bangalore, Dated: 11.02.2022. /NS/* Copy to: 1.Appellants2.Respondent 3.CIT4.CIT(A) 5.DR6.Guard file By order Assistant Registrar, ITAT, Bangalore. (B. R. BASKARAN) (N. V. VASUDEVAN) Accountant Member Vice President