M/s Praxair India Private Limited, Bangalore V. Assistant Commissioner of Income Tax, LTU, Bangalore

MA 2/BANG/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6144 (ITAT-BANGALORE)
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 01-05-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 28-12-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VIKAS SURYAVAMSHI
• Keywords: Transfer pricing; International transaction
• Section: 143(3)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH A BEFORE SHRI N.V VASUDEVAN, VICE-PRESIDENT AND SHRI. JASON P BOAZ, ACCOUNTANT MEMBER M.P.NO. 1 & 2/BANG/2019 IN IT(TP)A NO.361 & 409/BANG/2015 (ASST. YEAR 2010-11) PRAXAIR INDIA PRIVATE LIMITED MERCURY 2B BLOCK, 6 TH FLOOR, PRESTIGE TECHNOLOGY PARK, OUTER RING ROAD, MARATHAHALLI, BANGALORE 560103. .APPELLANT/APP LICANT PAN: AAACP 9993J VS. THE ASSISTANT COMMISSIONER OF INCOME-TAX (LTU), BANGALORE. . RESPONDENT/RESPONDENT AND ASSESSEE BY : SHRI ANKUR PAI, ADVOCATE REVENUE BY : SHRI.VIKAS SURYAVAMSHI, ADDL. CIT DATE OF HEARING : 15-03-2019 DATE OF PRONOUNCEMENT : 15 -03-2019 O R D E R PER SHRI N.V VASUDEVAN, VICE-PRESIDENT: THESE ARE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE U/S.254(2) OF THE INCOME TAX ACT, 1961 PRAYING FOR RECTIFICATION OF CERTAIN ERRO RS IN THE COMMON ORDER OF THE TRIBUNAL DATED 4.6.2018 IN ITA NO.361/BANG/2015 WHICH WAS AN APPEAL BY THE ASSESSEE AND IT(TP)A NO.409/BANG/2015 WHICH WAS AN APPEAL BY THE REVENUE . BOTH THESE APPEALS WERE DIRECTED AGAINST THE FINAL ORDER OF ASSESSMENT DATED 9/1/201 5 PASSED BY THE ASST. COMMISSIONER OF INCOME-TAX, LTU, CIRCLE-I, BANGALORE U/S 143(3) R. W.S 144C OF THE INCOME-TAX ACT 1961 (ACT). 2. THE DISPUTE IN ASSESSEES APPEAL WAS WITH REGARD TO THE DETERMINATION OF ARMS LENGTH PRICE IN RESPECT OF INTERNATIONAL TRANSACTION OF PAYMENT OF ROYALTY BY THE ASSESSEE TO ITS ASSOCIATED 2 ENTERPRISES. THE DISPUTE IN REVENUES APPEAL WAS W ITH REGARD TO DISALLOWANCE OF EXPENSES U/S.14A OF THE ACT. IT HAS BEEN MENTIONED IN THE M .A. THAT THE TRIBUNAL IN PARAGRAPH-7 OF THE ORDER AFTER ADJUDICATING THE APPEAL OF THE ASSESSEE ON TRANSFER PRICING ADJUSTMENT OBSERVED THAT GROUND NOS.II 14 & 15 WERE NOT PRESSED AND HENCE DI SMISSED. IT IS THE STAND OF THE ASSESSEE IN THIS MA THAT ON THOSE GROUNDS WHICH WERE IN RELATIO N TO SHORT CREDIT FOR ADVANCE TAX PAID AMOUNT TO RS.29,98,332 (GR.NO.14) AND NOT INCLUDING SURCHA RGE AND CESS IN MAT CREDIT WHILE ALLOWING CARRY FORWARD OF MAT CREDIT U/S.115JAA OF THE ACT ( GR.NO.15), THE LEARNED COUNSEL FOR THE ASSESSEE PRAYED FOR A DIRECTION ON GR.NO.14 TO THE AO DIRECTING HIM TO LOOK INTO THE ISSUE AND GRANT APPROPRIATE CREDIT FOR ADVANCES TAXES PAID AN D ON GR.NO.15 A DIRECTING TO THE AO TO LOOK INTO THE ISSUE CONCERNED AND TO CORRECTLY COMPUTE/Q UANTIFY THE AMOUNT OF MAT CREDIT TO BE CARRIED FORWARD FOR SET-OFF IN THE SUBSEQUENT YEAR, RESPECTIVELY. IT IS THE PLEA OF THE ASSESSEE THAT ON GR.NO.14 & 15 THE DIRECTIONS AS PRAYED FOR AT TH E ORIGINAL HEARING SHOULD BE GIVEN AND THE ORDER OF THE TRIBUNAL SUITABLY AMENDED. 3. IT HAS ALSO BEEN MENTIONED IN THE M.A. THAT ON GR.NO.16 WITH REGARD TO CHARGING OF INTEREST U/S.234B OF THE ACT, THE TRIBUNAL HAS GIVEN DIRECTI ONS IN PARAGRAPH-8 OF THE ORDER BUT THERE IS A TYPOGRAPHICAL ERROR IN MENTIONING SEC.234-B AND INS TEAD THE WORDS 234-D APPEAR AND THIS MISTAKE HAS ALSO TO BE RECTIFIED. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND AR E OF THE VIEW THAT BOTH THE MISTAKES ARE APPARENT ON THE FACE OF THE RECORD AND DIRECTED TO BE AMENDED BY SUBSTITUTING EXISTING PARAGRAPH- 7 OF THE ORDER OF THE TRIBUNAL, THE FOLLOWING PARAG RAPH-7 VIZ.: 7. GROUND NOS.II 14 AND 15 ARE IN RELATION TO SH ORT CREDIT FOR ADVANCE TAX PAID AMOUNT TO RS.29,98,332 (GR.NO.14) AND NOT INCLUDING SURCHA RGE AND CESS IN MAT CREDIT WHILE ALLOWING CARRY FORWARD OF MAT CREDIT U/S.115JAA OF THE ACT (GR.NO.15). THE LEARNED COUNSEL FOR THE ASSESSEE HAS PRAYED FOR A DIRECTION ON GR.NO.14 TO THE AO DIRECTING HIM TO LOOK INTO THE ISSUE AND GRANT APPROPRIATE CREDIT FO R ADVANCES TAXES PAID AND ON GR.NO.15 A DIRECTING TO THE AO TO LOOK INTO THE ISSUE CONCERNE D AND TO CORRECTLY COMPUTE/QUANTIFY THE AMOUNT OF MAT CREDIT TO BE CARRIED FORWARD FOR SET- OFF IN THE SUBSEQUENT YEAR, RESPECTIVELY. THE AO IS DIRECTED TO VERIFY THE CLA IM OF THE ASSESSEE AND GIVE APPROPRIATE TAX CREDIT AND ALSO DETERMINE AND COMPUTE/QUANTIFY THE AMOUNT OF MAT CREDIT TO BE CARRIED FORWARD, AFTER AFFORDING OPPORTUNITY OF BEI NG HEARD TO THE ASSESSEE. 3 5. SIMILARLY IN PARAGARAPH 8 OF THE ORDER OF THE T RIBUNAL IN THE FIRST LINE OF THE SAID PARAGRAPH, INSTEAD OF THE WORDS INTEREST U/S.234D, THE WORDS INTEREST U/S.234B SHALL BE SUBSTITUTED. 6. THE ASSESSEE HAS FILED TWO MAS FOR SAME RELIEF , APPARENTLY BECAUSE THERE WERE TWO APPEALS DEALT WITH IN THE SAME ORDER. THEREFORE THE ORDER PASSED ABOVE WILL BE SAME IN BOTH THE MAS. 7. IN THE RESULT BOTH THE MAS ARE ALLOWED TO BE E XTENT INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT ON THIS 15 TH DAY OF MARCH, 2019. SD/- SD/- (JASON P.BOAZ) (N.V.VASUDEVAN) ACCOUNTANT MEMBER VICE-PRESIDENT BANGALORE, DT. 15.3.2019. MURTHY DESAI COPY TO : 1 APPELLANT 4 CIT(A) 2 RESPONDENT 5 DR. ITAT, BANGALORE 3 CIT 6 GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT BANGALORE.