Deputy commissioner of Income-tax Circle-1(1), Pune V. BMC Software India Private Limited, Pune

MA 171/PUN/2023

• Counselvise Citation: [2023] 102 COUNSELVISE.COM (IT) 0143 (ITAT-PUNE)
• Duration Of Justice: 4 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-11-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 16-11-2023
• Assessment Year: 2015-2016
• Appeal Filed On: 04-07-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ANUP TIWARI
• Section: 40(a)(ia); 194J; 119

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE „C‟ BENCHES:: PUNE BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER & SHRI PARTHA SARATHI CHAUDHURY, HON. JUDICIAL MEMBER M.A.Nos. 171 to 173/PUN/2023 (Arising out of ITA No. 2038/PUN/2019; ITA No. 2442/PUN/2017 and ITA No. 1938/PUN/2018) (A.Ys. 2015-16, 2013-14 & 2014-15) DCIT, Circle-1(1), Pune. vs M/s. BMC Software India Pvt. Ltd., Business Bay, Wing-1, Tower-B, 9 th Floor, Survey No.103, Hissa No.2, Airport Road, Yerawada, Pune. PAN : AABCB 6110 E Applicant Respondent Assessee by : Shri Anup Tiwari Revenue by : Shri Suhas Kulkarni, Addl. CIT Date of hearing : 17/11/2023 Date of pronouncement : 22/11/2023 ORDER Per PARTHA SARATHI CHAUDHURY, JM: These three Misc. Applications preferred by the Revenue emanates from the common order of this Tribunal in ITA No. 2038/PUN/2019; ITA No.2442/PUN/2017 and ITA No.1938/PUN/2018, dated 07/06/2022 for A.Ys. 2015-16, 2013-14 & 2014-15. 2. We have gone through the contents of the Misc. Applications filed by the Revenue along with relevant documents/materials placed on record and have also considered the impugned order passed by the MA Nos.171, 172 & 173/PUN/2023 M/s. BMC Software India Pvt. Ltd. 2 Tribunal (supra) and have given a considerable thought to the submissions made by the parties herein. At the time of hearing, it was also submitted by the ld.DR that all the Misc. Applications preferred by the Revenue pertains to the same common issue and having heard his submissions, all these Misc. Applications were heard and disposed of vide this consolidated order. 3. In the impugned order of the Tribunal (supra) on the issue of disallowance u/sec. 40(a)(ia) r.w.s. 194J of the Act, this Tribunal had relied on the decision of the Hon'ble Bombay High Court in the case of PCIT v. Lee & Murihead (P) Ltd. [2020] 119 taxmann.499 (Bom.) wherein it followed the decision of the Hon'ble Supreme Court in the case of CIT v. Kotak Securities Ltd. [2012] 383 ITR 1 (SC). That placing reliance on these decisions, finally the Tribunal had directed the AO/TPO to delete the disallowance made u/sec. 40(a)(ia) of the Act on lease line charges. Now, by these Misc. Applications, the Revenue contends that there is one order of the Pune Tribunal in the case of DCIT v. M/s. Barclays Technology Centre India Pvt. Ltd. in ITA No.601/PUN/2017 vide order dated 12/01/2021 and that the Tribunal while deciding the issue in the impugned order (supra) should have, in fact, followed the said decision of the Tribunal in Barclays case, meaning thereby, in following the decision of the Hon'ble Supreme Court in the case of Kotak Securities Ltd. (supra) the Tribunal had committed an error and mistake apparent from record has therefore crept in. We are of the considered view that this is an illogical; illegal MA Nos.171, 172 & 173/PUN/2023 M/s. BMC Software India Pvt. Ltd. 3 proposition and is absolutely void ab initio. That, when the Tribunal has relied on the decision of the Hon'ble Supreme Court and have given a finding, then not following a particular decision of the Tribunal cannot be any mistake apparent from record. Therefore, all the Misc. Applications filed by the Revenue are found to be devoid of any merit, hence, they are dismissed. 4. In the result, all the Misc. applications filed by the Revenue stands dismissed. Order pronounced in open Court on 22 nd November, 2023. Sd/- Sd/- (INTURI RAMA RAO) (PARTHA SARATHI CHAUDHURY) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated : 22 nd November, 2023 vr/- Copy to : 1. The Appellant. 2. The Respondent. 3. The Pr. CIT concerned. 4. The DR, ITAT, “C” Bench Pune. 5. Guard File. By Order // TRUE COPY// // Senior Private Secretary ITAT, Pune.