Appeal details
Counselvise Citation
[2013] 124 COUNSELVISE.COM (IT) 0254 (ITAT-HYDERABAD)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 6 month(s) 23 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
08-04-2013
Appeal Filed By
Assessee
Order Result
Partly Allowed
Bench Allotted
A
Assessment Year
2004-2005
Appeal Filed On
15-09-2011
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER MISC APPLN. NO.194/HYD/2011 (IN ITA NO.1082 & 1084/HYD/2010) ASSESSMENT YEAR 2004-05 M/S. DELOITTE CONSULTING INDIA PVT. LTD., HYDERABAD ( PAN - AABCD 0476 H) V/S. DY. COMMISSIONER OF INCOME-TAX, CIRCLE 1(2), HYDERABAD (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI A.V.SONDE RESPONDENT BY : SHRI M.RAVINDRA SAI DR DATE OF HEARING 08.02.2013 DATE OF PRONOUNCEMENT 08.04.2013 O R D E R PER SAKTIJIT DEY, JUDICIAL MEMBER: BY THIS APPLICATION UNDER S.254(2) OF THE INCOME-TAX ACT, 1961, APPLICANT-ASSESSEE SEEKS RECTIFICATION/RECALL OF THE ORDER OF THIS TRIBUNAL DATED 22.7.2011 IN THE CROSS APPEALS BEING ITA NO.1082 /HYD/2010 OF THE REVENUE AND 1084/HYD/2010 OF THE ASSESSEE- FOR THE ASSESSMEN T YEAR 2004- 05, ON THE GROUND THAT CERTAIN MISTAKES APPARENT FROM RECORD HAVE CREPT INTO THE SAME. 2. THE LEARNED COUNSEL FOR THE ASSESSEE-APPLICANT, REITER ATING THE DETAILED AVERMENTS MADE IN THE PRESENT APPLICATION HAS SUBMITTED THAT ORDER OF THE TRIBUNAL SUFFERS FROM NON-CONSIDERATION OF SEVERA L CONTENTIONS OF THE PARTIES URGED AND THE DECISIONS RELIED UPON BY THE PAR TIES, DURING THE APPEAL MA NO. 194/HYD/2011 (IN ITA NO.1082 & 1084/HYD/2010) M/S. DELOITTE CONSULTING INDIA PVT. LTD., HYDERABAD 2 HEARING, BESIDES OTHER MISTAKES APPARENT FROM RECORD. HE, HOWEVER, AT THE OUTSET, SUBMITTED THAT HE IS NOT PRESSING THE AVERMENTS M ADE IN PARAS 2 TO 2.5 OF THE PRESENT MISCELLANEOUS APPLICATION. 3. REFERRING TO GROUND NO.4.2 RAISED WITH REGARD T O ADJUSTMENT TO BE ALLOWED DUE TO THE DIFFERENCE IN THE RATES OF DEPR ECIATION, AND TAKING SUPPORT FROM GROUND NO.8.4 WHICH IS AN OMNIBUS GROUND C RAVING LEAVE TO ADD ANY GROUNDS OF APPEAL NOT SPECIFICALLY RAISED UNDER ANY OF THE OTHER GROUNDS, IT IS SUBMITTED THAT GROUND NO.8.4 COVERS THE GROUND RA ISED BY THE ASSESSEE RELATING TO REJECTION OF ONE OF THE COMPARABLE COMPA NY, VIZ. VISUAL SOFT TECHNOLOGIES LIMITED AS COMPARABLE FOR SOFTWARE DEVELOPM ENT SEGMENT OF THE ASSESSEE AS IT HAD SIGNIFICANT RESEARCH AND DEVELOPMENT EXPENSES IN EXCESS OF 3% OF THE REVENUES (3.89% OF THE REVENUES) AND HENCE NOT COMPARABLE TO THE ASSESSEE. THE SAID GROUND WAS RAISED AN D ARGUED AT LENGTH IN THE COURSE OF THE HEARING. IT IS SUBMITT ED THAT THE AFORESAID GROUNDS RELATING TO ALLOWABILITY OF AN ADJUSTMENT DUE TO DIFFERENCE IN RATES OF DEPRECIATION CHARGED BY THE ASSESSEE ON ITS ASSETS VIS--VIS R ATES CHARGED BY THE COMPARABLE COMPANIES AND REJECTION OF ONE OF THE CO MPARABLES ON THE BASIS THAT IT EXPENDED RESEARCH AND DEVELOPMENT EXPENSES IN EXCESS OF 3% OF ITS REVENUE WERE CONSIDERED TO BE NOT ENTERTAINABL E AS HELD IN PARAS 33 AND 34 OF THE ORDER OF THE TRIBUNAL. THE SAME WERE NOT ENTERTAINED BY THE TRIBUNAL ON THE GROUND THAT THEY WERE NOT RAISED BEF ORE THE REVENUE AUTHORITIES. IT IS POINTED OUT THAT DURING THE APPEA L HEARING, IT WAS REITERATED THAT THE WORKINGS PERTAINING TO DIFFERENCE IN RATES O F DEPRECIATION WERE FORMING PART OF THE SUBMISSIONS MADE BEFORE THE FIRST AP PELLATE AUTHORITY AND FORMED PART OF THE PAPER-BOOK FILED BEFORE THE HONB LE TRIBUNAL. IT IS FURTHER SUBMITTED THAT THOUGH VISUAL SOFT TECHNOLOGIES LIMITED WAS EARLIER ACCEPTED AS A COMPARABLE COMPANY IN THE ASSESSEES TRANSFER PRICING STUDY, RELIANCE MA NO. 194/HYD/2011 (IN ITA NO.1082 & 1084/HYD/2010) M/S. DELOITTE CONSULTING INDIA PVT. LTD., HYDERABAD 3 WAS PLACED ON THE DECISION OF THE DELHI BENCH OF THE TRI BUNAL IN THE CASE OF SAPIENT CORPORATION PVT. LTD. (ITA NO.5263/DEL/2010 ) WHEREIN IT WAS HELD THAT THE FACT THAT THE COMPARABLE SELECTED INITIALLY BY THE ASSESSEE HIMSELF CANNOT ACT AS ESTOPPEL IN REJECTING THE COMPANY. SIMILA R VIEW WAS TAKEN BY THE SPECIAL BENCH IN THE CASE OF QUARK SYSTEMS (P)LTD.(38 SOT 307), WHICH WAS BINDING ON THE DIVISION BENCH WAS ALSO REFERRED TO. IN THE ABSENCE OF ANY CONTRARY DECISION CITED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE, IT WAS SUBMITTED THAT THE ORDER OF THE TRIBUNAL IN NOT R EFERRING TO ANY OF THESE DECISIONS AND REJECTING THE GROUNDS BY THE ASSESSEE, CONSTITUT ES A MISTAKE APPARENT FROM THE RECORD, AS THESE PRECEDENTS WERE BINDI NG ON THE TRIBUNAL. 4. THE AUTHORISED REPRESENTATIVE ALSO REFERRED TO GR OUND NO.4.3 RAISED IN THE APPEAL REGARDING ADJUSTMENT TO THE MARG IN OF THE COMPARABLE COMPANIES ON ACCOUNT OF DIFFERENCE IN THE RISK PROFILE O F THE COMPARABLE COMPANIES, AND IT WAS DISPOSED OF BY THE TRIBUNAL IN PA RA 40 OF ITS ORDER IN THE FOLLOWING MANNER- IT CANNOT BE SAID THAT THE ASSESSEE COMPANY AS OPE RATING IN A RISK FREE ENVIRONMENT AND ACCORDINGLY THE ASSESSEE COMPA NY IS NOT ENTITLED TO ANY ADJUSTMENT TOWARDS RISKS BORNE ON VARIOUS CO MPARABLE COMPANIES: IT IS SUBMITTED THAT THE TRIBUNAL, HAVING HELD THAT THE ASSESSEE WORKS IN AN ENVIRONMENT HAVING RISK FAILED TO QUANTIFY THE AMOUN T OF RISK. THIS, ACCORDING TO THE AUTHORISED REPRESENTATIVE IS CLEARLY CONTRARY TO THE EXPRESS PROVISIONS CONTAINED IN RULE 10B(2)(B) WHICH REQUIRE ADJUSTMENTS TO BE MADE FOR RISKS ASSUMED. THIS, ACCORDING TO HIM, CONSTITUTES A MISTAKE APP ARENT FORM THE RECORD. MA NO. 194/HYD/2011 (IN ITA NO.1082 & 1084/HYD/2010) M/S. DELOITTE CONSULTING INDIA PVT. LTD., HYDERABAD 4 5. THE LEARNED AUTHORISED REPRESENTATIVE ULTIMATELY SUBMITTED THAT THE ORDER OF THE TRIBUNAL DATED 22.7.2011 INSOFAR AS IT DISPOSED OF, GROUNDS NO.1.1; 4.2; 4.3; AND 8.4 OF THE ASSESSEE, BE RECALLED AND AN OPPORTUNITY OF BEING HEARD ON THESE ISSUES BE PROVIDED TOE THE ASSESSEE, A ND THESE ISSUES BE DISPOSED OF, AFTER DEALING WITH THE SUBMISSIONS OF T HE ASSESSEE. 6. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE CONTRARY, STRONGLY SUPPORTED THE ORDER OF THE TRIBUNAL, AND SUB MITTED THAT THERE IS NO MISTAKE APPARENT FROM RECORD, AND THE ASSESSEE IS MERELY SEEKING A REHEARING ON THE ISSUES INVOLVED AND FRESH APPRAISAL OF THE MATTER, SIMPLY BECAUSE EARLIER ORDER OF THE TRIBUNAL WAS AGAINST IT AN D NOT ACCEPTABLE TO IT. 7. WE CONSIDERED THE RIVAL SUBMISSIONS IN THE LIGHT OF THE ORDER OF THIS TRIBUNAL DATED 22.7.2011 AND THE ELABORATE CONT ENTIONS OF THE ASSESSEE MADE IN THE PRESENT APPLICATION. THE ISSUES THAT CAME UP FOR ADJUDICATION BY THE TRIBUNAL ARE AS FOLLOWS- (A) DIFFERENCE IN THE RATES OF THE DEPRECIATION OF THE ASSESSE E COMPANY VIS--VIS COMPARABLE COMPANY. (B) WITH REGARD TO ASSESSEES OBJECTION FOR VISUAL SOFT TECHN OLOGY LIMITED BEING SELECTED AS A COMPARABLE. (C) NON-QUANTIFICATION OF THE AMOUNT OF RISK ASSUMED BY THE ASSESSEE SO FAR AS THE FIRST ISSUE IS CONCERNED, THE TRIBUNAL, IN PARA 33 OF ITS ORDER DATED 22.11.2011, HAS DECIDED IN THE FOLLOWING MANNER - 33. NOW, WE DEAL WITH THE ISSUE RELATING TO THE A SSESSEES CONTENTION THAT THE FIRST APPELLATE AUTHORITY FALLI NG TO TAKE COGNIZANCE OF DIFFERENCES IN ACCOUNTING POLICIES FOLLOWED BY T HE ASSESSEE COMPANY AND THE ALLEGED COMPARABLE COMPANIES SELECTED BY HI M, BY NOT MA NO. 194/HYD/2011 (IN ITA NO.1082 & 1084/HYD/2010) M/S. DELOITTE CONSULTING INDIA PVT. LTD., HYDERABAD 5 ALLOWING THE DEPRECIATION ADJUSTMENT MADE BY THE AS SESSEE COMPANY. IT IS THE CONTENTION OF THE ASSESSEE COMPANY THAT T HE LOWER AUTHORITIES NOT ALLOWED ANY ADJUSTMENT FOR THE DIFFERENCE INDIV IDUAL DEPRECIATION POLICY FOLLOWED BY THE ASSESSEE COMPANY VIS-A-VIS T HE COMPARABLE COMPANIES. WE FIND THAT THE ASSESSEE COMPANY HAS NO T RAISED ANY GROUND ON THIS ISSUE BEFORE THE FIRST APPELLATE AUT HORITY. FURTHER, NO SUCH PLEA HAS BEEN MADE DURING THE TRANSFER PRICING PROCEEDINGS BEFORE THE TPO. UNDER THESE CIRCUMSTANCES, THE GROU ND RAISED BY THE ASSESSEE COMPANY BEFORE US IS NOT ENTERTAINABLE AND THE SAME IS REJECTED. IT IS THE CONTENTION OF THE LEARNED AUTHORISED REPRESEN TATIVE FOR THE ASSESSEE THAT WHILE DISMISSING THE ASSESSEES CONTENTION, THE TRIBU NAL HAS COMPLETELY IGNORED THE DECISION OF THE INCOME-TAX APPELLATE TRIB UNAL SPECIAL BENCH, CHANDIGARH IN THE CASE OF QUARK SYSTEMS (SUPRA), WHILE HOLDING THAT THE CONTENTION WHICH WAS NOT RAISED BEFORE THE CIT(A) AND TPO, CANNOT BE RAISED FOR THE FIRST TIME BEFORE THE TRIBUNAL. IN QUARK SY STEMS (SUPRA), THE SPECIAL BENCH OF THE TRIBUNAL HAS OBSERVED IN THE FOLLOWING MANNER- 30. LEARNED SPECIAL COUNSEL FOR THE REVENUE SHRI KAPILA HAS VEHEMENTLY ARGUED THAT DATAMATICS WAS TAKEN AS ON E OF THE COMPARABLES BY THE TAX PAYER AND NO OBJECTION TO IT S INCLUSION WAS RAISED BEFORE THE TPO OR BEFORE THE LEARNED CIT(A ) IN APPEAL. THEREFORE, THE TAXPAYER SHOULD NOT BE PERMITTED TO RAISE ADDITIONAL GROUND AND ASK FOR EXCLUSION OF THE ABOVE ENTERPRIS E IN THE DETERMINATION OF THE AVERAGE MARGINS. WE ARE UNABLE TO ACCEPT ABOVE CONTENTION. IN THE FIRST PLACE, THESE ARE INITIAL Y EARS OF IMPLEMENTATION OF TRANSFER PRICING LEGISLATION IN INDIA AND TAXPAY ERS AS WELL AS TAX CONSULTANTS WERE NOT FULLY CONVERSANT WITH THE NEW BRANCH OF LAW WHEN THE PROCEEDINGS WERE INITIATED OR EVEN AT APPE LLATE STAGE. BESIDES, REVENUE AUTHORITIES, INCLUDING TPO WERE RE QUIRED TO APPLY STATUTORY PROVISIONS AND CONSIDER FOR PURPOSES OF C OMPARISON FUNCTIONS, ASSETS AND RISKS (TURNOVER), PROFIT AND TECHNOLOGY EMPLOYED BY THE TESTED PARTY AND OTHER ENTERPRISES TAKEN AS COMPARABLE. STATUTORY DUTY IS CAST ON THEM, TO UNDERTAKE ABOVE EXERCISE. THIS HAS NOT BEEN DONE TO THIS CASE. WE WOULD ONLY SAY THAT PRIMA FACIE, AS PER THE MATERIAL, TO WHICH REFERENCE HAS BEEN DRAWN BY SHRI AGGARWAL, DATAMATICS DOES NOT APPEAR TO BE COMPARABLE. EVEN I F THE TAXPAYER OR ITS COUNSEL HAD TAKEN DATAMATICS AS COMPARABLE IN I TS T.P. AUDIT, THE TAXPAYER IS ENTITLED TO POINT OUT TO THE TRIBUNAL T HAT ABOVE ENTERPRISE HAS WRONGLY BEEN TAKEN AS COMPARABLE. IN FACT THER E ARE VAST DIFFERENCES BETWEEN TESTED PARTY AND THE DATAMATICS REPRESENTING EXTREME PROVISIONS. IF IMERCIUS TECHNOLOGIES HAS S UFFERED HEAVY MA NO. 194/HYD/2011 (IN ITA NO.1082 & 1084/HYD/2010) M/S. DELOITTE CONSULTING INDIA PVT. LTD., HYDERABAD 6 LOSSES AND, THEREFORE, IT IS NOT TREATED AS COM PARABLE BY THE TAX AUTHORITY, THEY ALSO HAVE TO CONSIDER THAT THE DATA MATICS HAS EARNED EXTRAORDINARY PROFIT AND HAS A HUGE TURNOVER, BESID ES DIFFERENCES IN ASSETS AND OTHER CHARACTERISTICS REFERRED TO BY SH RI AGGARWAL. THE TRIBUNAL IS A FACT FINDING BODY, AND, THEREFORE, HA S TO TAKE INTO ACCOUNT ALL THE RELEVANT MATERIAL AND DETERMINE THE QUESTIO N AS PER THE STATUTORY REGULATIONS. . 36. THE AFORESAID DECISION AND GUIDELINES MAY NOT B E EXACTLY ON IDENTICAL FACTS BEFORE US BUT THEY EMPHATICALLY SHO W THAT TAX PAYER IS NOT ESTOPPED FROM POINTING OUT A MISTAKE IN THE ASS ESSMENT THOUGH SUCH MISTAKE IS THE RESULT OF EVIDENCE ADDUCED BY T HE TAXPAYER. 37. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDER ATION ARE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTIC E DESERVES TO BE PREFERRED, FOR THE OTHER SIDE CANNOT CLAIM TO HAVE A VESTED RIGHT IN INJUSTICE BEING DONE DUE TO SOME MISTAKE ON ITS PAR T. 38. ACCORDINGLY, ON FACTS AND CIRCUMSTANCES OF THE CASE, WE HOLD THAT TAXPAYER IS NOT ESTOPPED FROM POINTING THAT DA TAMATICS HAS WRONGLY BEEN TAKEN AS COMPARABLE. WHILE ADMITTING A DDITIONAL GROUND OF APPEAL RAISED BY THE ASSESSEE TO REQUIRE US TO C ONSIDER WHETHER OR NOT DATAMATICS SHOULD BE INCLUDED IN THE COMPARABLE , WE MAKE NO COMMENTS ON MERIT EXCEPT OBSERVING THAT ASSESSEE FR OM RECORD HAS SHOWN ITS PRIMA FACIE CASE. FURTHER CLAIM MAY BE EX AMINED BY THE ASSESSING OFFICER. THIS COURSE WE ADOPT AS OBJECTI ON TO THE INCLUSION OF DATAMAICS AS COMPARABLE HAS BEEN RAISED NOW AND NOT BEFORE REVENUE AUTHORITY.. 8. SIMILAR ARGUMENTS WERE TAKEN EVEN WITH REGARD T O THE SECOND ISSUE, VIZ. VISUAL SOFT TECHNOLOGIES LTD. BEING TAKEN A S COMPARABLE. ON PERUSAL OF THE ORDER DATED 22.7.2011 OF THE TRIBUNAL IT IS SEEN THAT THOUGH THE TRIBUNAL WHILE DEALING WITH CONTENTION OF THE LE ARNED AUTHORISED REPRESENTATIVE FOR THE ASSESSEE, HAD RECORDED THE FACT TH AT THE COUNSEL HAS RELIED UPON THE ORDER OF THE SPECIAL BENCH IN THE CASE OF QUARK SYSTEMS (SUPRA). WHILE GIVING THE FINDING, HOWEVER, THE TRI BUNAL HAS NOT MADE ANY MENTION ABOUT APPLICABILITY OR OTHERWISE OF THE SAID D ECISION TO THE FACTS OF THE CASE. SO FAR AS THE ISSUE OF DEPRECIATION IS CONCERNED, THE TRIBUNAL HAS SIMPLY REJECTED IT ONLY ON THE GROUND THAT THE SAME WA S NOT RAISED EITHER BEFORE THE CIT(A) OR BEFORE THE TPO. WITH REGARD T O THE SECOND ISSUE ALSO, THE TRIBUNAL REJECTED THE CONTENTION OF THE ASSESSEE BA SICALLY ON THE GROUND MA NO. 194/HYD/2011 (IN ITA NO.1082 & 1084/HYD/2010) M/S. DELOITTE CONSULTING INDIA PVT. LTD., HYDERABAD 7 THAT THE ASSESSEE HAS AGREED BEFORE THE TPO THAT VISUAL SOFT TECHNOLOGY IS AN UNRELATED PARTY AND ITS PERFORMANCE CAN BE COMPARED WITH THAT OF THE ASSESSEE. 9. IN QUARK SYSTEMS LTD (SUPRA), THE SPECIAL BENCH O F THE TRIBUNAL, AS NOTED ABOVE, HAS HELD THAT SINCE TRANSFER PRICING IS A NEW CONCEPT AND THE TAX PAYERS AND TAX CONSULTANTS WERE NOT FULLY CONVERSAN T WITH THIS NEW BRANCH OF LAW, WHEN PROCEEDINGS WERE INITIATED OR EVEN AT APPELLATE STAGE, AND THE FURTHER FACT, THAT THE REVENUE AUTHORITIES I NCLUDING THE TPO WERE REQUIRED TO APPLY THE STATUTORY PROVISIONS, AND CONSIDER FOR PURPOSES OF COMPARISON, CONCERNS, ASSETS AND RISKS, PROFIT AND TECHNOLOG Y EMPLOYED BY THE TESTED PARTIES AND OTHERS TAKEN AS COMPARABLES. STATU TORY DUTY IS CAST ON THEM TO LOOK INTO ALL THE ASPECTS. THE SPECIAL BENCH FU RTHER OBSERVED THAT THE TAX PAYER IS NOT ESTOPPED FROM POINTING OUT A MIST AKE IN THE ASSESSMENT, THOUGH SUCH MISTAKE WAS THE RESULT OF EVIDENCE ADDUCED BY THE TAX PAYER. THE SPECIAL BENCH WENT ON TO OBSERVE THAT WHEN SUBSTANTI AL JUSTICE AND TECHNICAL CONSIDERATIONS WERE PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED, FOR THE OT HER SIDE CANNOT BE SAID TO HAVE A VESTED RIGHT IN INJUSTICE BEING DONE DUE TO SOME MISTAKE ON ITS PART. ON THE AFORESAID PRINCIPLE OF LAW, THE SPECIAL BENCH HELD THAT THE TAX PAYER IS NOT ESTOPPED FROM POINTING OUT THAT A COMPANY HAS BEEN WRONGLY TAKEN AS COMPARABLE. 10. AS IT APPEARS FROM THE ORDER OF THE TRIBUNAL, T HE FORESAID PRINCIPLE LAID DOWN BY THE SPECIAL BENCH IN THE CASE OF QUARK SY STEMS (SUPRA) HAS NOT BEEN BORNE IN MIND, WHILE RENDERING THE DECISION IN R ELATION TO THE FIRST TWO ISSUES, THOUGH THE SAID DECISION WAS NOTED TO HAVE BEEN CI TED BY THE LEARNED AUTHORISED REPRESENTATIVE FOR THE ASSESSEE BEFORE IT. A DECISION OF THE MA NO. 194/HYD/2011 (IN ITA NO.1082 & 1084/HYD/2010) M/S. DELOITTE CONSULTING INDIA PVT. LTD., HYDERABAD 8 SPECIAL BENCH OF THE TRIBUNAL ON A PARTICULAR ISSUE IS BI NDING ON THE DIVISION BENCH UNLESS A CONTRARY DECISION OF HIGHER COURT IS BROUGH T TO ITS NOTICE. IN THE CASE OF HONDA SIEL POWER PRODUCTS LTD. V/S. CIT(295 ITR 466), THE HONBLE SUPREME COURT HAS HELD THAT FAILURE TO CONSIDER A DECISION OF A COORDINATE BENCH CITED BY THE ASSESSEE IS A MISTAKE APPARENT FROM RECORD. IN THIS VIEW OF THE MATTER, INSOFAR AS THE FIRST TWO ISSUES A RE CONCERNED, WE FIND THAT THERE IS A MISTAKE APPARENT FROM RECORD IN THE OR DER OF THE TRIBUNAL DATED 22.7.2011 ON ACCOUNT OF NON-CONSIDERATION OF THE DECISION OF THE SPECIAL BENCH IN THE CASE OF QUARK SYSTEMS (SUPRA). CONSEQ UENTLY, THE ORDER OF THE TRIBUNAL DATED 22.7.2011 IN RELATION T O THESE TWO ISSUES IS MODIFIED, AND IT IS HELD THAT SINCE CONTENTIONS IN RELAT ION TO THESE TWO ISSUES ARE RAISED BY THE ASSESSEE FOR THE FIRST TIME BEFORE THI S TRIBUNAL, AND AS SUCH THE REVENUE AUTHORITIES DID NOT HAVE OPPORTUNITY TO EXAMINE THE SAME, HENCE THEY ARE REMITTED TO THE FILE OF THE ASSESSING OF FICER, FOR RECONSIDERATION OF THE ENTIRE MATTER IN RELATION TO T HESE TWO ISSUES. HE SHALL PASS APPROPRIATE ORDERS IN ACCORDANCE WITH LAW, AFTER GIV ING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. WE WOULD LIKE TO MAKE IT CLEAR THAT WE ARE NOT EXPRESSING ANY OPINION ON THE MERITS OF THE ISSUES INVOLVED, AND THE ASSESSING OFFICER IS AT LIBERTY TO ARRIVE AT HIS OWN CO NCLUSIONS IN ACCORDANCE WITH LAW, ON DUE CONSIDERATION OF THE CONTENTI ONS OF THE ASSESSEE BEFORE HIM IN RELATION TO THESE TWO ISSUES. 11. AS FOR THE THIRD ISSUE RELATING TO THE QUANTIFI CATION OF THE RISKS ASSUMED BY THE ASSESSEE, WE DO NOT FIND ANY MISTAKE APPAR ENT FROM RECORD IN THE ORDER OF THE TRIBUNAL, SINCE THE TRIBUNAL HAS T AKEN A CONSCIOUS VIEW ON CONSIDERATION OF THE ALL THE RELEVANT FACTORS. WE ACCOR DINGLY REJECT THE CONTENTIONS OF THE ASSESSEE IN THE PRESENT APPLICATION IN R ELATION TO THE THIRD ISSUE. MA NO. 194/HYD/2011 (IN ITA NO.1082 & 1084/HYD/2010) M/S. DELOITTE CONSULTING INDIA PVT. LTD., HYDERABAD 9 12. IN THE LIGHT OF THE ABOVE DISCUSSION, THE ORDER OF THE TRIBUNAL IS MODIFIED INSOFAR AS IT RELATED TO THE FIRST AND SECOND ISSUES ARE CONCERNED, AND CONSEQUENTLY, READ WITH THE EARLIER ORDER OF THE TRIBUNAL DATED 22.7.2011, APPEAL OF THE ASSESSEE IS TREATED AS PARTLY AL LOWED. 13. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSE ES IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE COURT ON 8.4.2013 SD/- SD/- (CHANDRA POOJARI) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED/- 8 TH APRIL, 2013 COPY FORWARDED TO: 1. M/S. DELOITTE CONSULTING INDIA PVT. LTD., RM2 FUTURA, BLOCK A 4 TH FLOOR, PLOT NO.14 AND 15, ROAD NO.2, HITECH CITY LAY OUT, MADHAPUR. HYDERABAD 2. 3. 4. 5. ASSTT.A COMMISSIONER OF INCOME-TAX CIRCLE 1(2), HYDERABAD COMMISSIONER OF INCOME-TAX II, HYDERABAD COMMISSIONER OF INCOME-TAX(APPEALS) III, HYDERABAD DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S.
