ROCHE DIAGNOSTICS INDIA P.LTD, MUMBAI V. ASST CIT 11(1)(1), MUMBAI

MA 204/MUM/2021

• Counselvise Citation: [NaN] 107 COUNSELVISE.COM (IT) 2208 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-03-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2011-2012
• Appeal Filed On: 15-09-2021
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: HOSHANG
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (VIRTUAL COURT) “J" BENCH, MUMBAI BEFORE SHRI VIKAS AWASTHY, HON'BLE JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, HON'BLE ACCOUNTANT MEMBER MA.No. 204/MUM/2021 [ARISING OUT OF ITA.No. 1537/MUM/2016 (A.Y. 2011-12)] Roche Diagnostics India Pvt. Ltd., 501-B, Silver Utopia Cardinal Gracious Road Chakala, Andheri (East) Mumbai-400069. PAN: AAACA0266H v. ACIT - 11(1)(1), Room No. 204, 2 nd floor Aayakar Bhavan, M.K. Road Mumbai-400020 (Appellant) (Respondent) Assessee by : Shri Nitesh Joshi Department by : Shri Hoshang Date of Hearing : 03.12.2021 Date of Pronouncement : 02.03.2022 O R D E R PER S. RIFAUR RAHMAN (AM) 1. Through this Miscellaneous Application assessee requested to recall the ITAT order in ITA.No. 1537/Mum/2016 (A.Y. 2011-12) dated 10.01.2020 pertaining to Ground Nos. 1 and 2 and consider the same in accordance with law. MA.No. 204/MUM/2021 Roche Diagnostics India Pvt. Ltd., 2 2. At the time of hearing, Ld. AR of the assessee submitted that with reference to Page No. 3 of the ITAT order wherein the comparable TTK Healthcare ought to have been excluded by the Hon'ble Bench but decided to remand the matter back to Transfer Pricing Officer (in short “TPO”). With reference to Page No. 1 of the case law Paper Book by relying on Mitsui O.S.K. Lines Maritime (India) Pvt. Ltd., v. DCIT in Income-tax Appeal NO. 426 of 2012 dated 17.07.2012 which Hon'ble Jurisdictional High Court considered the issue “where on the facts and circumstances of the case and in law, Tribunal was justified in setting aside of the order of the CIT(A) and remitting the matter to the Assessing Officer for fresh adjudication”. Ld. AR brought to our notice Para No. 7 of the order wherein it was held as below: - “7. The Tribunal does not state that the material, including the comparables, furnished by the appellant was inadequate. The department / respondent also do not contend that the comparables were inadequate. They have analyzed the same in a particular manner whereas the CIT (A) has analyzed the same in a different manner. In other words, the respondent has not contended and the Tribunal had not held that the relevant comparables are insufficient.” 3. With reference to the above decision of the Hon'ble Jurisdictional High Court he prayed that Ground No. 1 and 2 raised by the assessee may be recalled and further he submitted that ITAT before reaching the MA.No. 204/MUM/2021 Roche Diagnostics India Pvt. Ltd., 3 above said decision relied on the case of Advance Power Display Systems Ltd., v. CIT (65 taxmann.com 92) and failed to address the issue of consistency. 4. On the other hand, Ld. DR submitted that the Hon'ble bench has only remitted the issue to the TPO with the clear direction that the TPO can decide the issue afresh, therefore, there is no prejudice caused to the assessee. Therefore, he submitted that there is no mistake apparent on the order passed by the Tribunal. 5. Considered the rival submissions and material placed on record. We found that while adjudicating the issue of exclusion/inclusion of TTK Healthcare the Tribunal has restored the issue back to the file of the AO/TPO, whereas Ld. AR has pointed that this issue has already been considered by the DRP in A.Y. 2012-13 and the copy of the order is placed on record at Page No. 116 of the Paper Book. He submitted that all the relevant information were already placed before the ITAT. After considering the submissions, we observe that there is a mistake apparent on record while adjudicating this issue. Therefore, we deem it fit and proper to recall only those two grounds (Ground No. 1 and 2) for MA.No. 204/MUM/2021 Roche Diagnostics India Pvt. Ltd., 4 denovo adjudication. We direct the registry to post this case in due course in regular bench. 6. In the net result, Miscellaneous Application filed by the assessee is allowed. Order pronounced in the open court on 02.03.2022. Sd/- Sd/- (VIKAS AWASTHY) (S. RIFAUR RAHMAN) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai / Dated 02/03/2022 Giridhar, Sr.PS Copy of the Order forwarded to: 1. The Appellant 2. The Respondent. 3. The CIT(A), Mumbai. 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// BY ORDER, (Asstt. Registrar) ITAT, Mum