ACIT, Circle-1(1)(1), Bangalore V. M/s. Acuity Knowledge Centre (India) Pvt. Ltd,( earlier known as M/s. Moodys Analytics Knowledge Services India Pvt. Ltd./Amba Research (India) Pvt. Ltd., Bangalore

MA 184/BANG/2023

• Counselvise Citation: [2023] 102 COUNSELVISE.COM (IT) 0258 (ITAT-BANGALORE)
• Duration Of Justice: 3 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-10-2023
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 26-10-2023
• Assessment Year: 2012-2013
• Appeal Filed On: 24-07-2023
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Period of limitation; Condonation of delay
• Section: 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH : BANGALORE BEFORE SHRI GEORGE GEORGE K, VICE PRESIDENT AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER MP No.184/Bang/2023 (in ITA No. 1065/Bang/2022) Assessment Year : 2012-13 DCIT, Circle – 1(1)(1), Bengaluru. Vs. M/s. Acuity Knowledge Centre (India) Pvt. Ltd., (formerly known as Moody’s Analytics Knowledge Services (India)Private Limited), Elixir Chancery Building, 7th Floor, Municipal Door #135/1-2, Residency Road, Bengaluru – 560 025. PAN : AAECA 9391 H APPELLANT RESPONDENT Revenue by :Shri.Nischal B,Addl. CIT(DR)(ITAT), Bengaluru. Assessee by:Shri.Vishal Kalra,Advocate Date of hearing:27.10.2023 Date ofPronouncement:01.11.2023 O R D E R Per George George K, Vice President: This Miscellaneous Application (MA) at the instance of the Revenue arises out of order of ITAT dated 27-01.2023 in ITA No.1065/Bang/2022. The relevant Assessment Year is 2012-13. The grievances of the Revenue in the MA are as under: MP No.184/Bang/2023 (in ITA No. 1065/Bang/2022) Page 2 of 7 1.The Hon'ble ITAT, 'A' Bench, Bengaluruvide its order in ITA No.1065/Bang/2022 dated 27.01.2023, for the Assessment Year 2012- 13 received in the office of PCIT 1, Bengaluru on 21.02.2023 has dismissed the revenue appeal mentioning following two reasons: (i)The appeal was filed without condonation application or an affidavit stating therein the reasons for belated filing of appeal (ii)The revenue's appeal arising from the order of CIT(A) dated 12.12.2017 was rejected by the Tribunal vide order dated 14.02.2020. In the said order of the tribunal, the revenue's grounds against Transfer Pricing adjustment were rejected by stating that issue does not arise out of the order of CIT(A). Therefore the Hon'ble ITAT in the present appeal has held that the issues have already been concluded and fresh appeal at this stage by the revenue is not tenable and is rejected. 2.The Hon'ble ITAT, Bengaluru, held that the revenue has filed the present appeal even without filing a Condonation Petition or an affidavit stating therein the reason for belated filing of this appeal. However, the application under section 5 of the Limitation Act dated 07.07.2022 was duly filed before the Hon'ble ITAT allowing along with Miscellaneous Petition dated 07.07.2022. A copy of covering letter with reference to application u/s 5 of Limitation Act, duly acknowledged by O/o. Registrar, ITAT, Bengaluru, is enclosed herewith. 3.The Hon’ble ITAT has held that the issues have already been concluded in its order dated 14.02.2020 and the fresh appeal at this stage by the Revenue is nottenable and the same is rejected. The grounds raised in order dt 14.02.2020 are enclosed as Annexure-1. However, the grounds raised in the order of Hon'ble ITAT dated 14.02.2020, were not the same as the grounds raised before Hon’ble ITAT in the present appeal in ITA No. 1065/Bang/2022 and the same are reproduced at Annexure-2. 4.Thereforethe observation of Hon'ble ITAT in present order that "appeal is filed without condolence application" and "Issues have already been concluded" is a mistake apparent from record. MP No.184/Bang/2023 (in ITA No. 1065/Bang/2022) Page 3 of 7 Prayer: 1.On the facts and in the circumstances of the case and in view of the above fact it is prayed to Hon’ble Tribunal to kindly reconsider the impugned current order. 2.On the facts and in the circumstance of the case it is prayed to the Hon'ble Tribunal to kindly consider the application under section 5 of the Limitation Act dated 07.07.2022 for Condonation of delay filed with appeal memo. 3.On the facts and in the cir 4.cumstance of the case it is prayed to the Hon'ble Tribunal to kindly consider the appeal as the grounds raised in earlier appeal and present appeal are not same. 2. To understand the prayer of the Revenue raised in the MA, it is necessary to list out the chronology of events which is as follows: ITAT Order dated 14.02.2020 [ITA No. 1231 & 1184/2018] The first Order passed by the Hon'ble Tribunal: a)Cross appeals were filed by the assessee and revenue department. b)The assessee withdrew appeal post favorable order giving effect to CIT(A) order passed by Assessing Officer ("AO"). c)The Tribunal dismissed revenue's appeal, holding that the revenue raised incorrect grounds wherein department challenged comparables under software service segment instead of ITeS segment (refer para 12). d)The Tribunal in para 13 stated that TP grounds are rejected as they do not emanate from CIT(A) order. Further, the Tribunal gave no liberty to department to file another appeal subsequently. Miscellaneous Application ("MA") filed on 17.11.2021 Revenue sought to raise new grounds of appeal (challenging correct comparables) in the MA filed. MP No.184/Bang/2023 (in ITA No. 1065/Bang/2022) Page 4 of 7 MA order dated 07.12.2021 [MA No. 56/2021 in 1231/2018] The Tribunal rejected the MA filed by Revenue holding that it erred in raising grounds in the original appeal and now the Department is raising new grounds of appeal. Hence, in absence of any apparent mistake, the MA deserves to be rejected (refer para 6-7). Fresh ITAT appeal filed by the Revenue Department on 22.11.2022 The Revenue filed fresh appeal against the same CIT(A) order on November 22, 2022. ITAT order dated 27.01.2023 [ITA No. 1065/2022] The Tribunal dismissed Revenue's appeal holding: e)No condonation of delay / affidavit has been filed by the explaining the delay in filing the fresh appeal against the CIT(A) order (refer para 5). f)Revenue's appeal arising from the said CIT(A) order had been rejected by the Tribunal vide order dated February 14, 2020. Once the issues raised have already been concluded, fresh appeal at this stage by Department was not tenable. 3. From the above chronology of events, it is admitted fact that Revenue has filed two appeals from the impugned order of the CIT(A), dated 12.12.2017. The earlier appeal filed by the Revenue was rejected by the ITAT vide order dated 14.02.2020 (ITA No.1231/Bang/2018). Against the same order of the CIT(A), the Revenue has filed a fresh appeal on 22.11.2022 and this appeal was dismissed by the ITAT in ITA No.1065/Bang/2022 on 27.01.2023. The relevant finding of the Tribunal reads as follows: “5. The Revenue has once again filed the appeal before the Tribunal (present appeal) against the order of the CIT(A) dated 12.12.2017. The Revenue has filed the present appeal even without filing a condonation petition or an affidavit stating therein the reasons for belated filing of this appeal. As mentioned earlier, the Revenue's appeal arising from the impugned order of the CIT(A) was rejected by the Tribunal vide order dated 14.02.2020. In the said order of the Tribunal, the revenue's grounds regarding corporate tax issue after elaborate discussion, was MP No.184/Bang/2023 (in ITA No. 1065/Bang/2022) Page 5 of 7 rejected. As regards TP adjustment, the grounds were rejected by stating that issue does not arise out of the order of CIT(A). Therefore, the issues have already been concluded and the fresh appeal at this stage by the Revenue is not tenable and the same is hereby rejected. It is ordered accordingly.” 4. The present MA is against the above finding of the Tribunal. Even in the present MA, the Revenue has not placed on record the condonation petition, if any filed, during the course of hearing of ITA No.1065/Bang/2022 nor the acknowledgment of the Registry of the ITAT for having filed the condonation petition (though in the MA, Revenue has mentioned so). 5. Be it as it may, the question is whether the department is permitted to file two appeals on the same order of the CIT(A). An assessee or Revenue ought not to be allowed to file multiple appeals from same order of CIT(A). There ought to be finality of an order. When Revenue has filed appeal at the first instance and omitted to raise ground, the Revenue cannot be permitted to file a fresh appeal after a span of more than two years (especially when the ITAT did not grant liberty to Revenue to file fresh appeal). According to us, the doctrine of merger applies on the facts of the instance case. In other words, the order of CIT(A) had merged with the order of the Tribunal dated 14.02.2020 and Revenue is estopped from challenging the CIT(A)’s order again on some new issues when those issues were not taken in the first round of litigation. On identical facts, the Hon’ble Calcutta High Court in the case of Kanoria Chemicals and Industries Ltd., Vs. CIT-IV, Kolkata, reported in 42 taxmann.com 199 (Calcutta) had held as follows: “8. Thus it is clear that from 2003 till 2008 no action was taken to challenge the other portion of the impugned judgment and order. The matter was pending before the learned Tribunal till 2004. By the act and conduct we hold that the MP No.184/Bang/2023 (in ITA No. 1065/Bang/2022) Page 6 of 7 impugned judgment and order dated 28th November, 2003 has been merged with the final order dated 20th of December 2004 as rightly argued by Mr. Som. Indeed we think that petitioner is estopped from challenging the same when it was not challenged on any other grounds within the period of limitation. We think that even if the appeal is admitted by the order of the Court the question of entertainability will arise. Thus applying the doctrine of merger and also estoppel we hold that this appeal is not maintainable. Under the circumstances we do not think other arguments advanced on the merit of the case should be considered by this Court. Accordingly the appeal is dismissed.” 6. In the instance case, as mentioned earlier, the first appeal was filed in the year 2018. The appeal filed by the Revenue in the year 2018 was pending and ITAT disposed off the same only on 14.02.2020. Thereafter, much later on 22.11.2022, the Revenue has raised the issues / grounds in ITA No.1065/Bang/2022. Thus, on facts of the present case, the doctrine of merger applies and also estoppel, since Revenue was in slumber on issues raised in ITA No.1065/Bang/2022 from the year 12.12.2017 [the date of order of CIT(A)] till 22.11.2022, (the date of filing the second appeal in ITA No.1065/Bang/2022). The Hon’ble High Court of Allahabad in the case of V. K. Packaging Industries Vs. Tax Recovery Officer reported in [2004] 266 ITR 283 (Allahabad) has also taken a similar view. The relevant finding which reads as follows: “25. Thus under the doctrine of merger the orders of the Assessing Officer dated 15-3-2000 and the CIT (Appeals) dated 30-4-2002 have both merged into the order of the Tribunal dated 30.12.2002. Hence the orders of the Assessing Officer dated 15-03-2000 and the CIT(Appeals) dated 30-4-2002 ceased to exist after the order of the Tribunal dated 30-12-2002.” MP No.184/Bang/2023 (in ITA No. 1065/Bang/2022) Page 7 of 7 7. In view of the aforesaid reasoning, the MA filed by the Revenue is rejected. 8. In the result, MA filed by the Revenue is dismissed. Pronounced in the open court on the date mentioned on the caption page. Sd/- Sd/- (LAXMI PRASAD SAHU) (GEORGE GEORGE K) Accountant Member Vice President Bangalore, Dated: 01.11.2023. /NS/* Copy to: 1.Appellants2.Respondent 3.CIT4.CIT(A) 5.DR 6. Guard file By order Assistant Registrar, ITAT, Bangalore.