Siemens Limited (Successor in the intrest to. Siemens Healthcare Diagnostics Ltd.), Baroda V. The ACIT.,Circle-4, Baroda

MA 166/AHD/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0809 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 27-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Transfer pricing; Set aside

Judgement Text

MA NO.166/AHD/2019 (IN MA NO.32/AHD/2015 & ITA NO.2881/AHD/2012) ASSESSMENT YEAR: 2008-09 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD D BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR, VICE PRESIDENT AND MS. MADHUMITA ROY, JUDICIAL MEMBER] M.A. NO.166/AHD/2019 (IN M.A. NO.32/AHD/2015 & ITA NO.2881/AHD/2012) ASSESSMENT YEAR: 2008-09 SIEMENS LIMITED, ..............APPLICANT (SUCCESSOR IN INTEREST TO SIEMENS HEALTHCARE DIAGNOSTICS LIMITED) BIRLA AURORA TOWERS, LEVEL 21, PLOT NO.1080, DR. ANNIE BESANT ROAD, WORLI, MUMBAI 400 030. [PAN : AAACB 8542 M] VS. ASSISTANT COMMISSIONER OF INCOME-TAX CIRCLE-4, BARODA. . .......................RESPONDENT APPEARANCES BY: JEET KAMDEER, FOR THE APPLICANT S.K. DEV FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 17.05.2019 DATE OF PRONOUNCEMENT : 28.05.2019 O R D E R PER PRAMOD KUMAR, VICE PRESIDENT: BY WAY OF THIS RECTIFICATION PETITION, THE ASSESSEE APPLICANT POINTS OUT THAT, IN THE ORDER DATED 1 ST DECEMBER 2017, THE TRIBUNAL HAS ERRONEOUSLY STATED THAT ORDER DATED 19.09.2014 IS THUS RECALLED FOR THE STRICTLY LIMITED PURPOSES AS SET OUT ABOVE AND TO DISPOSE OF GROUND NOS.1, 2, 3, 5, 6 & 7 ON M ERITS INASMUCH AS GROUND NOS.13 AND 14, WHICH WERE ADDITIONAL GROUNDS OF APPEAL, WE RE INADVERTENTLY OMITTED. 2. IN RESPONSE TO A QUESTION FROM THE BENCH ON WHET HER THE TRIBUNAL HAS THE POWERS TO RECTIFY AN ORDER PASSED UNDER SECTION 254 (2) ITSELF, LEARNED COUNSEL FOR THE ASSESSEE POINTS OUT OUR ATTENTION TO HONBLE BOMBAY HIGH COURTS JUDGEMENT IN THE MA NO.166/AHD/2019 (IN MA NO.32/AHD/2015 & ITA NO.2881/AHD/2012) ASSESSMENT YEAR: 2008-09 PAGE 2 OF 4 CASE OF SUPREME INDUSTRIES LIMITED VS. ACIT [(2015) 54 TAXMANN.COM 82 (BOM)] WHICH INTER ALIA OBSERVES AS FOLLOWS :- 10. BY IMPUGNED ORDER DATED 13TH SEPTEMBER, 2013, THE TRIBUNAL REJECTED THE THREE MISCELLANEOUS APPLICATION FILED BY THE PETITIONER, SEEKING TO CORRECT THE ORDER OF THE TRIBUNAL DATED 14TH MAY, 2010. THIS DISMISSAL OF THE RECTIFICATION APPLICATION WAS ON T HE FOLLOWING GROUNDS: A) A RECTIFICATION APPLICATION UNDER SECTION 254(2) OF THE ACT CAN BE ENTERTAINED ONLY TO RECTIFY AN ORDER PASSED UNDER S ECTION 254(1) OF THE ACT AND NOT TO CORRECT AN ERROR PASSED UNDER SE CTION 254(2) OF THE ACT. IN SUPPORT, RELIANCE WAS PLACED UPON THE D ECISION OF THE ORISSA HIGH COURT IN CIT V. PRESIDENT, ITAT [1992] 196 ITR 838; AND B) THERE IS NO MISTAKE COMMITTED IN THE ORDER DATED 14TH MAY, 2010 OF THE TRIBUNAL. IN ANY CASE, THE PROCEEDING UNDER SECTION 254(2) OF THE ACT ARE MEANT ONLY FOR RECTIFYING MISTAKES A PPARENT FROM THE RECORD COMMITTED BY THE TRIBUNAL AND NOT THE MI STAKE OF THE PARTIES CONCERNED. 11. WE FIND IT IS AN UNDISPUTED POSITION THAT A MI STAKE HAS OCCURRED IN THE ORDER DATED 14TH MAY, 2010 IN MENTIONING INCOME TAX APPEAL NOS. 904, 867 AND 868/MUM/2005 (BEING APPEAL NUMBERS ALL OTTED TO THE REVENUE'S APPEAL) INSTEAD OF INCOME TAX APPEAL NOS. 906, 907 AND 908/MUM/2005. HOWEVER, THE IMPUGNED ORDER REJECTED THE APPLICATION FOR RECTIFICATION ON THE GROUND THAT SUCH AN APPLICATIO N IS NOT MAINTAINABLE UNDER SECTION 254(2) OF THE ACT AS HELD BY THE ORIS SA HIGH COURT IN PRESIDENT, ITAT (SUPRA). 12. IT IS A SETTLED POSITION IN LAW THAT EVERY AUT HORITY EXERCISING QUASI JUDICIAL POWERS HAS INHERENT/ INCIDENTAL POWER IN D ISCHARGING OF ITS FUNCTIONS TO ENSURE THAT JUSTICE IS DONE BETWEEN PA RTIES I.E. NO PREJUDICE IS CAUSED TO ANY OF THE PARTIES. THIS POWER HAS NOT TO BE TRACED TO ANY PROVISION OF THE ACT BUT INHERES IN EVERY QUASI JUD ICIAL AUTHORITY. THIS HAS BEEN SO HELD BY THE SUPREME COURT IN GRINDLAYS BANK LTD. V. CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL AIR 1981 SC 606. THE REFORE, THE AFORESAID PRINCIPLE OF LAW SHOULD HAVE BEEN ADOPTED BY THE TRIBUNAL. IT IS EXPECTED FROM THE TRIBUNAL TO ADOPT A JUSTICE OR IENTED APPROACH AND NOT DEFEAT THE LEGITIMATE RIGHTS ON THE ALTAR OF PR OCEDURES AND TECHNICALITIES. THIS IS PARTICULARLY SO WHEN THERE IS NO SPECIFIC BAR IN THE ACT TO CORRECT AN ORDER PASSED ON RECTIFICATION. 13. IT IS FUNDAMENTAL PRINCIPLE OF LAW THAT NO PAR TY SHOULD BE PREJUDICED ON ACCOUNT OF ANY MISTAKE IN THE ORDER O F THE TRIBUNAL. THOUGH NOT NECESSARY FOR THE DISPOSAL OF THIS PETIT ION, WE EXPRESS OUR DISAPPROVAL OF THE STAND TAKEN IN THE IMPUGNED ORDE R THAT SECTION 254(2) OF THE ACT ARE MEANT ONLY FOR RECTIFYING THE MISTAK ES OF THE TRIBUNAL AND NOT OF THE PARTIES. THE TRIBUNAL AND THE PARTIES AR E NOT ADVERSARIAL TO EACH OTHER. IN FACT, THE TRIBUNAL AND THE PARTIES N ORMALLY REPRESENTED BY ADVOCATES/ CHARTERED ACCOUNTANTS ARE COMRADES IN AR MS TO ACHIEVE MA NO.166/AHD/2019 (IN MA NO.32/AHD/2015 & ITA NO.2881/AHD/2012) ASSESSMENT YEAR: 2008-09 PAGE 3 OF 4 JUSTICE. THEREFORE, A MISTAKE FROM ANY SOURCE BE IT -THE PARTIES OR THE TRIBUNAL SO LONG AS IT BECOMES A PART OF THE RECORD , WOULD REQUIRE EXAMINATION BY THE TRIBUNAL UNDER SECTION 254(2) OF THE ACT. IT CANNOT BE DISMISSED AT THE THRESHOLD ON THE ABOVE GROUND. 14. IN VIEW OF THE ABOVE, WE SET ASIDE THE IMPUGNE D ORDER DATED 13TH SEPTEMBER, 2013 AND DIRECT THE TRIBUNAL TO PASS APP ROPRIATE ORDER CORRECTING THE MISTAKE IN ITS ORDER DATED 14TH MAY, 2010 FOR ALL THE THREE SUBJECT ASSESSMENT YEARS I.E. 1999-2000, 2000-01 AN D 2001-02. 3. LEARNED DEPARTMENTAL REPRESENTATIVE DOES NOT DIS PUTE THE ABOVE POSITION. 4. THE PLEA OF THE LEARNED COUNSEL IS WELL TAKEN. NOT ONLY THAT WE HAVE THE POWERS, IN THE LIGHT OF HONBLE BOMBAY HIGH COURTS JUDGEMENT IN THE CASE OF SUPREME INDUSTRIES LIMITED (SUPRA) AND IN THE ABSEN CE OF ANYTHING TO THE CONTRARY BY HONBLE JURISDICTIONAL HIGH COURT, AN INADVERTENT E RROR HAS INDEED CREPT IN BY EXCLUDING GROUND NOS.13 AND 14. WE, THEREFORE, AME ND OUR ORDER DATED 1 ST DECEMBER, 2017 AS FOLLOWS :- OLD PARAGRAPH NOS.5 & 6 CORRECTED PARAGRAPH NOS.5 & 6 5. HAVING HEARD THE RIVAL CONTENTIONS, AND HAVING CAREFULLY PERUSED THE MATERIAL ON RECORD PARTICULARLY THE AFFIDAVIT FILED BY THE COUNSEL AND THE CHART SUMMING UP GRIEVANCES OF THE ASSESSEE, WE AGREE THAT GROUNDS NOS.1, 2, 3, 5, 6 & 7 WOULD NOT HAVE REQUIRED ADJUDICATION ONLY IF GROUND NO.4 WAS TO BE ALLOWED. THAT IS NOT THE CASE. IN ALL FAIRNESS, THEREFORE, THE ORDER IS TO BE RECALLED FOR THE LIMITED PURPOSES OF DECIDING OTHER TRANSFER PRICING GROUNDS, I.E. GROUND NOS. 1, 2, 3, 5, 6 & 7, ON MERITS AFTER GIVING BOTH THE PARTIES REASONABLE OPPORTUNITY OF HEARING IN ACCORDANCE WITH THE LAW. WE ORDER SO. 5. HAVING HEARD THE RIVAL CONTENTIONS, AND HAVING CAREFULLY PERUSED THE MATERIAL ON RECORD PARTICULARLY THE AFFIDAVIT FILED BY THE COUNSEL AND THE CHART SUMMING UP GRIEVANCES OF THE ASSESSEE, WE AGREE THAT GROUNDS NOS. 1, 2, 3, 5, 6 & 7 AND 13 & 14, IF NECESSARY, WOULD NOT HAVE REQUIRED ADJUDICATION ONLY IF GROUND NO.4 WAS TO BE ALLOWED. THAT IS NOT THE CASE. IN ALL FAIRNESS, THEREFORE, THE ORDER IS TO BE RECALLED FOR THE LIMITED PURPOSES OF DECIDING OTHER TRANSFER PRICING GROUNDS, I.E. GROUND NOS.1, 2, 3, 5, 6 & 7 AND 13 & 14, IF NECESSARY, ON MERITS AFTER GIVING BOTH THE PARTIES REASONABLE OPPORTUNITY OF HEARIN G IN ACCORDANCE WITH THE LAW. WE ORDER SO. 6. ORDER DATED 19.09.2014 IS THUS RECALLED FOR THE STRICTLY LIMITED PURPOSES AS SET OUT ABOVE AND TO DISPOSE OF GROUNDS NOS.1, 2, 3, 5, 6 & 7 ON MERITS. 6. ORDER DATED 19.09.2014 IS THUS RECALLED FOR THE STRICTLY LIMITED PURPOSES AS SET OUT ABOVE AND TO DISPOSE OF GROUNDS NOS.1, 2, 3, 5, 6 & 7 AND 13 & 14, IF NECESSARY, ON MERITS. MA NO.166/AHD/2019 (IN MA NO.32/AHD/2015 & ITA NO.2881/AHD/2012) ASSESSMENT YEAR: 2008-09 PAGE 4 OF 4 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 MAY, 2019. SD/- SD/- MS. MADHUMITA ROY PRAMOD KUMAR (JUDICIAL MEMBER) (VICE PRESIDENT) AHMEDABAD, DATED THE 28 TH DAY OF MAY, 2019 PBN/* COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD