Mainetti India Pvt Ltd., CHENNAI V. DCIT, CHENNAI

MA 16/CHNY/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4016 (ITAT-CHENNAI)
• Duration Of Justice: 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-03-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 18-02-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P RADHAKRISHNAN
• Assessee Lawyers: N VIJAY KUMAR
• Keywords: Transfer pricing

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI ... , . !'# ! , % !& BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER M.P. NO.225/MDS/2015 (IN I.T.A. NO.616/MDS/2015) ' (' / ASSESSMENT YEAR : 2010-11 THE ASSISTANT COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 4(1), CHENNAI - 600 034. V. M/S MAINETTI INDIA PVT. LTD., 3 RD FLOOR, FLORIDA TOWERS, NO.138/30, NELSON MANICKAM RD., CHENNAI - 600 029. PAN : AAACM 6894 M (*+' /PETITIONER) (*,+-/ RESPONDENT) M.P. NO.16/MDS/2016 (IN I.T.A. NO.616/MDS/2015) ' (' / ASSESSMENT YEAR : 2010-11 M/S MAINETTI INDIA PVT. LTD., 3 RD FLOOR, FLORIDA TOWERS, NO.138/30, NELSON MANICKAM RD., CHENNAI - 600 029. V. THE DEPUTY COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 4(1), CHENNAI - 600 034. (*+' /PETITIONER) (*,+-/ RESPONDENT) / 0 1 /REVENUE BY : SH. P. RADHAKRISHNAN, JCIT '23 0 1 /ASSESSEE BY : SH. N. VIJAY KUMAR, CA 4 0 3% / DATE OF HEARING : 04.03.2016 5'( 0 3% / DATE OF PRONOUNCEMENT : 04.03.2016 2 M.P. NO.225/MDS/15 M.P. NO.16/MDS/16 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: BOTH THE ASSESSEE AND THE REVENUE HAVE FILED MISCELLANEOUS PETITIONS ON THE GROUND THAT THERE IS AN ERROR IN THE ORDER OF THIS TRIBUNAL. 2. LETS FIRST TAKE THE ASSESSEES MISCELLANEOUS PE TITION IN M.P. NO.16/MDS/2016. 3. SHRI N. VIJAY KUMAR, THE LD. REPRESENTATIVE FOR THE ASSESSEE, SUBMITTED THAT THE REVENUE HAS NOT PAID THE APPEAL FEE, THEREFORE, THE APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE . HENCE, ACCORDING TO THE LD. REPRESENTATIVE, THE APPEAL OF THE REVENUE HAS TO BE DISMISSED. 4. WE HAVE HEARD SH. P. RADHAKRISHNAN, THE LD. DEPA RTMENTAL REPRESENTATIVE ALSO. WE HAVE ALSO PERUSED THE MATE RIAL AVAILABLE ON RECORD. NO DOUBT, THE DEPARTMENT HAD FILED THE APPEAL WITHOUT PAYING THE FEES. THE APPEAL WAS FILED AGAINST THE ORDER OF THE ASSESSING OFFICER IN TRANSFER PRICING MATTER. HOWE VER, THIS DEFECT WAS NOT BROUGHT TO THE NOTICE OF THE BENCH WHEN THE APPEAL WAS HEARD AND DISPOSED OF. ONCE THE APPEAL WAS DISPOSE D ON MERIT, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT A N EW ISSUE CANNOT BE 3 M.P. NO.225/MDS/15 M.P. NO.16/MDS/16 RAISED BY WAY OF MISCELLANEOUS PETITION. THEREFORE , THIS TRIBUNAL DO NOT FIND ANY MERIT IN THE MISCELLANEOUS PETITION OF THE ASSESSEE. ACCORDINGLY, THE MISCELLANEOUS PETITION FILED BY TH E ASSESSEE IS DISMISSED. 5. NOW COMING TO REVENUES MISCELLANEOUS PETITION I N M.P. NO.225/MDS/2015, SH. P. RADHAKRISHNAN, THE LD. DEPA RTMENTAL REPRESENTATIVE, SUBMITTED THAT THE REVENUE HAS RAIS ED AN ISSUE WITH REGARD TO DIRECTION OF THE DISPUTE RESOLUTION PANEL TO LOOK INTO THE MARGINS OF THE PROFIT IN REGARD TO THE TRANSACT IONS DONE BY THE ASSESSEE WITH ITS AE AS ALSO THE NON-AE AND THEN CO MPUTE THE ADJUSTMENT OF ARM'S LENGTH PRICE. ACCORDING TO THE LD. D.R., THIS GROUND WAS RAISED AS GROUND NO.3 BEFORE THIS TRIBUN AL, HOWEVER, THE SAME WAS NOT CONSIDERED WHEN THE APPEAL WAS DIS POSED OF. THEREFORE, ACCORDING TO THE LD. D.R., THERE IS AN E RROR IN THE ORDER OF THIS TRIBUNAL. 6. WE HAVE HEARD THE LD.COUNSEL FOR THE ASSESSEE AL SO. THE LD. D.R. SUBMITTED THAT GROUND NO.3 ADMITTEDLY IS N OT DISPOSED OF, THEREFORE, IT NEEDS TO BE DISPOSED OF. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, THE 4 M.P. NO.225/MDS/15 M.P. NO.16/MDS/16 GROUND RAISED BY THE ASSESSEE AS GROUND NO.3 WITH R EGARD TO MARGINS OF THE PROFIT IN CONNECTION WITH THE TRANSA CTIONS DONE BY THE ASSESSEE WITH ITS AE AND NON-AE. THE REVENUE HAS SPECIFICALLY RAISED A GROUND AS GROUND NO.3. BUT, BY OVERSIGHT, THIS GROUND NO.3 WAS NOT DISPOSED BY THIS TRIBUNAL. THIS TRIBU NAL IS OF THE CONSIDERED OPINION THAT THE NON-CONSIDERATION OF SP ECIFIC GROUND IS AN ERROR UNDER SECTION 254(2) OF THE INCOME-TAX ACT , 1961 (IN SHORT 'THE ACT'). THEREFORE, SUCH AN ERROR NEEDS TO BE R ECTIFIED. ACCORDINGLY, THE APPEAL OF THE REVENUE IN I.T.A. NO .616/MDS/2015 IS REOPENED ONLY FOR THE PURPOSE OF DISPOSING OF GR OUND NO.3 RAISED BY THE ASSESSEE IN THE GROUNDS OF APPEAL. IT IS MA DE CLEAR THAT THE ORDER OF THIS TRIBUNAL IN RESPECT OF OTHER GROUNDS REMAIN AS SUCH. ACCORDINGLY, THE REGISTRY IS DIRECTED TO POST THE A PPEAL IN I.T.A. NO.616/MDS/2015 BEFORE THE BENCH ON 20.04.2016 FOR DISPOSAL OF GROUND NO.3 ALONE. 8. WITH THE ABOVE OBSERVATION, THE MISCELLANEOUS PE TITION OF THE REVENUE IS ALLOWED. 9. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IN M.P. NO.16/MDS/2016 IS DISMISSED AND THE MISCELL ANEOUS PETITION OF THE REVENUE IN M.P. NO.225/MDS/2015 IS ALLOWED. 5 M.P. NO.225/MDS/15 M.P. NO.16/MDS/16 10. ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH MARCH, 2016 AT CHENNAI. SD/- SD/- (. !'# ! ) ( ... ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) % / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 7 /DATED, THE 4 TH MARCH, 2016. KRI. 0 *389 :9(3 /COPY TO: 1. '23 /ASSESSEE 2. ASSESSING OFFICER 3. 4 ;3 () /CIT(A) 4. 4 ;3 /CIT 5. 9< *3 /DR 6. ' = /GF.