M/s. Citrix R & D India Pvt Ltd , Bangalore V. Assistant Commissioner of Income Tax Circle-2(1)(1), Bangalore

MA 164/BANG/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6853 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 05-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R RAMESH
• Assessee Lawyers: UMASHANKAR GAUTAM

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, JUDICIAL MEMBER AND SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER M.P. NO. 164/BANG/2018 (IN IT(TP)A NO.383/BANG/2017) ASSESSMENT YEAR : 2012 - 13 M/S. CITRIX R&D INDIA PVT. LTD., PRESTIGE DYNASTY, GROUND FLOOR, 33/2, ULSOOR ROAD, BANGALORE 560 042. PAN: AABCN3639C VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 2 (1) (1), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI UMASHANKAR GAUTAM, ADVOCATE RESPONDENT BY : SHRI B.R. RAMESH, JCIT (DR) DATE OF HEARING : 06. 0 7 .2018 DATE OF PRONOUNCEMENT : 20 . 0 7 .2018 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THE ASSESSEE HAS FILED THIS IN WHICH, THE ASSESSEE HAS CONTENDED THAT THERE ARE CERTAIN APPARENT MISTAKES IN THE IMPUGNED TRIBU NAL ORDER DATED 06.04.2018. 2. IN COURSE OF HEARING OF THE M.P., IT WAS SUBMITT ED BY LD. AR OF ASSESSEE THAT PARAS 8 TO 11 OF THIS M.P. ARE RELEVANT REGARDING T HE ASSESSEES CONTENTION THAT THERE ARE APPARENT MISTAKES IN THE IMPUGNED TRIBUNA L ORDER. HENCE WE REPRODUCE PARAS 8 TO 11 OF THE M.P. FILED BY THE AS SESSEE. THE SAME ARE AS UNDER. MISTAKE APPARENT FROM RECORD 8. THIS MISCELLANEOUS APPLICATION HAS BEEN NECESSIT ATED BECAUSE GRAVE PREJUDICE HAS BEEN CAUSED AGAINST THE APPLICA NT, ON ACCOUNT OF NON-CONSIDERATION OF ARGUMENTS PUT FORTH IN RELATIO N TO A COMPARABLE I.E. 'PERSISTENT SYSTEMS LIMITED' IN THE AFOREMENTI ONED IMPUGNED M.P. NO. 164/BANG/2018 (IN IT(TP)A NO. 383/BANG/2017) PAGE 2 OF 3 ORDER. DURING THE COURSE OF HEARING, THE LD. AR HAD PLACED ITS ARGUMENTS BEFORE THE HON'BLE TRIBUNAL THAT THE APPL ICANT WAS ARGUING FOR EXCLUSION OF 'PERSISTENT SYSTEMS LIMITED'. EVEN THE HON'BLE TRIBUNAL IN INTERNAL PAGE NO. 6 OF ITS ORDER DATED APRIL O6, 2018, HAS DISCUSSED THAT 'PERSISTENT SYSTEMS LIMITED' IS TO B E DISCUSSED FOR ITS EXCLUSION, BUT HAS INADVERTENTLY DISCUSSED INFOSYS LIMITED' INSTEAD OF `PERSISTENT SYSTEMS LIMITED' IN INTERNAL PAGE NOS. 9 TO II. MOREOVER, THE HON'BLE TRIBUNAL HAS ALREADY EXCLUDED INFOSYS L IMITED' IN ITS ORDER, EVIDENT FROM INTERNAL PAGE NO. 6 OF THE ORDE R PASSED DATED APRIL O6, 2018. 9. AT THIS JUNCTURE, THE APPLICANT WOULD LIKE TO SU BMIT THAT A DETAILED CHART WAS FILED BEFORE THE HON'BLE TRIBUNAL WHICH E LABORATED AND EXPLAINED THE FACTS OF THE CASE, THE REASONS FOR RE JECTION OF THE `PERSISTENT SYSTEMS LIMITED'. IN ADDITION, A CASE L AW COMPENDIUM WAS ALSO FILED, COMPRISING OF THE CASE LAWS WHICH H ELD THAT 'PERSISTENT SYSTEMS LIMITED' SHOULD NOT BE TAKEN FOR COMPARABIL ITY ANALYSIS. 10. BASED ON ALL THE FACTS MENTIONED ABOVE AND THE EVENTS AS OCCURRED DURING THE COURSE OF PROCEEDINGS BEFORE THE HON'BLE TRIBUNAL, THE APPLICANT WOULD LIKE TO MENTION THAT ARGUMENTS WERE TAKEN FOR EXCLUDING 'PERSISTENT SYSTEMS LIMITED' AS FUNCTIONA LLY NOT COMPARABLE TO THE APPLICANT. HOWEVER, THE HON'BLE TRIBUNAL HAS INADVERTENTLY NOT DEALT WITH APPLICANT'S CONTENTION. 11. IN VIEW OF THE ABOVE, IT IS HUMBLY SUBMITTED TH AT THE ORDER OF THE HON'BLE TRIBUNAL SUFFERS FROM MISTAKE APPARENT FROM RECORD AND THEREFORE, MAY BE CALLED AND RECTIFIED TO THE EXTEN T DISCUSSED ABOVE. 3. IN THE LIGHT OF THESE PARA REPRODUCED FROM THE M .P., WHEN WE EXAMINE THE IMPUGNED TRIBUNAL ORDER, WE FIND THAT IN PARA 5 OF THE IMPUGNED TRIBUNAL ORDER, IT IS STATED BY TRIBUNAL THAT THE ASSESSEE REQUESTE D FOR EXCLUSION OF TWO COMPARABLES I.E. LARSEN & TOUBRO INFOTECH LTD. AND PERSISTENT SYSTEMS LTD. M.P. NO. 164/BANG/2018 (IN IT(TP)A NO. 383/BANG/2017) PAGE 3 OF 3 ALTHOUGH THE ISSUE REGARDING EXCLUSION OF LARSEN & TOUBRO INFOTECH LTD. WAS DECIDED BY THE TRIBUNAL AS PER PARA NOS. 5 AND 6 OF THE IMPUGNED TRIBUNAL ORDER BUT IN PARA 8 OF IMPUGNED TRIBUNAL ORDER, IT WAS HELD THAT INFOSYS LTD. SHOULD BE EXCLUDED FROM THE LIST OF FINAL COMPARABL ES AND THE ASSESSEES REQUEST FOR EXCLUSION OF PERSISTENT SYSTEMS LTD. WA S NOT DECIDED. AGAIN IN PARA 9 OF THE TRIBUNAL ORDER, IT IS STATED THAT IN THE F INAL LIST OF COMPARABLES FOR THIS SEGMENT, THERE WILL BE ONLY TWO COMPARABLES I.E. MI NDTREE LTD. AND RS SOFTWARE (INDIA) LTD. AND THEREFORE, AS PER THIS FINDING OF TRIBUNAL, PERSISTENT SYSTEMS LTD. ALSO STANDS EXCLUDED ALTHOUGH THERE IS NO DISC USSION ABOUT THE EXCLUSION OF THIS COMPANY. HENCE, WE RECALL THE IMPUGNED TRI BUNAL ORDER FOR THE LIMITED PURPOSE OF DECIDING THE ASSESSEES CLAIM FOR EXCLUS ION OF PERSISTENT SYSTEMS LTD. ACCORDINGLY WE RECALL THE IMPUGNED TRIBUNAL O RDER FOR THIS LIMITED PURPOSE AND DIRECT THE REGISTRY TO FIX THE SAME FOR HEARING IN DUE COURSE. 4. IN THE RESULT, THE M.P. FILED BY THE ASSESSEE ST ANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- SD/- (N.V. VASUDEVAN) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 20 TH JULY, 2018. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.