Capstone Securities Analysis Pvt. Ltd., Pune V. Deputy Commissioner of Income-tax,Circle -1 (1) , Pune

MA 21/PUN/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2425 (ITAT-PUNE)
• Duration Of Justice: 1 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 22-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRI
• Section: 12

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM M A NO. 2 1 /P U N/201 9 ARISING OUT OF ITA NO. 90 /P U N/201 6 ASSESSMENT YEAR : 20 11 - 12 CAPSTONE SECURITIES ANALYSIS PVT. LTD., COMMERZONE, BUILDING NO.1, GROUND FLOOR, SAMRAT ASHOK PATH, OFF AIRPORT ROAD, YERWADA, PUNE 411006 . APPLICANT PAN: AABCV9569K VS . THE DY. COMMISSIONER OF INCOME TAX, CIRCLE 1(1), PUNE . RESPONDENT APPLICANT BY : SHRI KISHORE PHADKE RESPONDENT BY : SHRI PANKAJ GARG / DATE OF HEARING : 14 . 0 6 .201 9 / DATE OF PRONOUNCEMENT: 21 . 0 6 .201 9 / ORDER PER SUSHMA CHOWLA, JM : THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE APPLICANT AGAINST THE ORDER OF TRIBUNAL, DATED 05. 04.2019. 2. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE APPLICANT POINTED OUT THAT WHILE ARGUING THE PRESENT APPEAL, LIMITED GROUNDS OF APPEAL WERE PRESSED ON THE PREMISE THAT ONCE THE SAME ARE DECIDED, THEN THE MARGINS SHOWN BY APPLICANT WOULD BE WITHI N +/ - 5% RANGE OF MEAN MARGINS OF COMPARABLES MAINLY SELECTED. IN THIS REGARD, IT WAS POINTED OUT THAT THOUGH GROUNDS OF APPEAL NO.3 AND 4 WERE 2 M A NO. 21 /P U N/201 9 PRESSED BUT GROUND OF APPEAL NO.5 WAS NOT ARGUED BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE APPLICANT DUR ING THE COURSE OF HEARING. HOWEVER, THE TRIBUNAL VIDE PARA 14 WHILE DECIDING THE ISSUE RAISED VIDE GROUNDS OF APPEAL NO.3 AND 4 HAS ALSO GIVEN ITS FINDING VIS - - VIS GROUND OF APPEAL NO.5, WHICH WAS NOT WARRANTED. 3 . THE LEARNED DEPARTMENTAL REPRESENTAT IVE FOR THE REVENUE POINTED OUT THAT DURING THE COURSE OF HEARING, WRITTEN SUBMISSIONS WERE FILED, WHICH MAY BE PERUSED IN THIS REGARD. 4 . AFTER HEARING BOTH THE PARTIES AND AFTER PERUSING WRITTEN SUBMISSIONS FILED BY REVENUE, IT TRANSPIRES THAT APPLICANT HAD ARGUED SOME OF THE ISSUES AND NOT ALL THE GROUNDS OF APPEAL RAISED. THE SAID FACT IS ALSO MENTIONED IN PARA 6 OF ORDER OF TRIBUNAL. THE TRIBUNAL ALSO NOTES THAT PRIMARY ISSUE WAS AGAINST INCLUSION OF ONE CONCERN I.E. ACCENTIA TECHNOLOGIES LTD. AND T HE SECOND ISSUE RAISED VIDE GROUNDS OF APPEAL NO.3 AND 4 I.E. COMPUTATION OF PLI. THEN, REFERENCE WAS MADE TO OTHER GROUNDS OF APPEAL PRESSED BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE APPLICANT DURING THE COURSE OF HEARING. THE FIRST ISSUE WHICH W AS TAKEN UP BY TRIBUNAL WAS AGAINST INCLUSION OF ACCENTIA TECHNOLOGIES LTD. I.E. PRIMARY ISSUE RAISED WHICH HAS BEEN DECIDED BY TRIBUNAL VIDE PARAS 8 TO 10 OF ORDER DATED 05.04.2019. VIDE PARA 11, REFERENCE WAS MADE TO GROUNDS OF APPEAL NO.3 AND 4 WITH RE GARD TO COMPUTATION OF PLI IN THE HANDS OF ASSESSEE. WHILE DECIDING THE AFORESAID ISSUE IN PARAS 14 TO 16, THE TRIBUNAL HAS NO DOUBT REFERRED TO THE ISSUE RAISED IN GROUNDS OF APPEAL NO.3 AND 4 BUT HAS ALSO REFERRED TO DETAILED WORKING FILED BY ASSESSEE A ND HAS POINTED OUT THAT ANOTHER LINKED ISSUE WAS THE INCLUSION OF PAYOUT INCOME. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE APPLICANT STRESSES 3 M A NO. 21 /P U N/201 9 THAT THE SAID ISSUE IS RAISED BY WAY OF GROUND OF APPEAL NO.5, WHICH WAS NOT ARGUED. THE PERUSAL OF WRITTEN SUBMISSIONS FILED BY REVENUE ALSO REFLECTS NO ARGUMENTS BEING RAISED IN THIS REGARD. IN PARAS 15 AND 16, THE TRIBUNAL HAS DECIDED THE ISSUE RAISED, WHICH ARE VIDE GROUNDS OF APPEAL NO.3 AND 4. IN OTHER WORDS, WE FIND THAT AN ERROR HAS CREPT IN THE ORDER OF TRIBUNAL IN PARA 14 IN MAKING REFERENCE TO LINKED ISSUE OF INCLUSION OF PAYOUT INCOME AND DEBITING OF PAYOUT COST, WHICH WAS NOT ARGUED BEFORE US, ON THE GROUND THAT IF THE PRELIMINARY ISSUE IS DECIDED, THEN MARGINS SHOWN WOULD BE WITHIN +/ - 5% RANGE OF MEAN MARGINS OF COMPARABLES. HENCE, WE MODIFY PARA 14, WHICH WOULD READ AS UNDER: - 14. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE WHICH ARISES VIDE MODIFIED GROUND OF APPEAL NO.3 IS AGAINST COMPUTATION OF PLI OF ASSESSEE. TH E FIRST GRIEVANCE OF ASSESSEE IS THAT TPO/ASSESSING OFFICER/DRP HAVE INCLUDED ITEMS OF REVENUE RELATING TO DTA ACTIVITY WHICH WERE EXCLUDED WHILE ALLOWING 10A DEDUCTION. THE SECOND PLEA RAISED IN THIS REGARD IS IN NOT INCLUDING SERVICE TAX REFUND AS PART OF REVENUE ITEM, DESPITE SAME BEING OPERATING INCOME AND ALSO DESPITE DIRECTIONS OF DRP. 5 . IN THE RESULT, MISCELLANEOUS APPLICATION OF APPLICANT IS ALLOWED. ORDER PRONOUNCED ON THIS 21 ST DAY OF JUNE , 201 9 . SD/ - SD/ - (ANIL CHATURVEDI) (SUSHMA CHOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 21 ST J UNE , 201 9 . GCVSR 4 M A NO. 21 /P U N/201 9 / COPY OF THE ORDER IS FORWARDED T O : 1. THE APP LICANT ; 2. THE RESPONDENT; 3. THE DRP - 3 (WZ), MUMBAI ; 4. THE CONCERNED CIT , PUNE ; 5. THE DR B , ITAT, PUNE; 6. GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SEC RETARY , / ITAT, PUNE