NEELAM EXPORTS, MUMBAI V. PRINCIPAL COMMISSIONER OF INCOME TAX-23, MUMBAI

MA 219/MUM/2020

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 1121 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-03-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 02-09-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: RANJIT SINHA
• Keywords: Transfer pricing; Rectification of order; International transaction
• Section: 254(2); 263

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI SHRI SHAMIM YAHYA (AM) & SHRI SHAKTIJIT DEY (JM) M.A. NO. 219/MUM/2020 IN I.T.A. NO. 1949/MUM/2019 (ASSESSMENT YEAR 2014-15) NEELAM EXPORTS CC-3100, BHARAT DIAMOND BOURSE, BANDRA KURLA COMPLEX, BANDRA EAST MUMBAI-400 051. PAN : AACFN3016D VS. PCIT-23 ROOM NO. 124 1 ST FLOOR MATRU MANDIR MUMBAI- 400007. (APPELLANT) (RESPONDENT) ASSESSEE BY SHRI RANJIT SINHA DEPARTMENT BY MS. USHA GAIKWAD DATE OF HEARING 12.02.2021 DATE OF PRONOUNCEMENT 09.03.2021 O R D E R PER SHAMIM YAHYA (AM) :- BY WAY OF THIS MISCELLANEOUS APPLICATION THE ASSE SSEE SEEKS RECTIFICATION OF MISTAKE U/S 254(2) OF THE INCOME TAX ACT IN THE ORDER OF THIS TRIBUNAL IN ITA NO.1949/MUM/2019 FOR ASSESSMENT YEAR 2014-15 VIDE O RDER DATED 5.9.2019. 2. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE R ECORDS. WE NOTE THAT ASSESSEE'S COUNSEL HAS SUBMITTED THAT THERE ARE TWO MISTAKES APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL. 3. AS REGARDS THE 1 ST MISTAKE ASSESSEE SUBMITS AS UNDER :- THE HONOURABLE TRIBUNAL HAS DISPOSED OF THIS ISSUE IN PARAGRAPH 12 OF ITS ORDER WHICH READS AS UNDER: '12. THE ASSESSING OFFICER WAS IN POSSESSION OF THIS TRANSFER PRICING ADJUSTMENT ORDER AND ADMITTEDLY THIS WAS NOT DELETED IN A PPEAL. HENCE IT WAS INCUMBENT UPON THE ASSESSING OFFICER TO RE FER THE INTERNATIONAL TRANSACTION OR SPECIFIED DOMESTIC TRAN SACTION TO TRANSFER PRICING OFFICER FOR THE PRESENT YEAR.' 6.2. AS A RESULT, THERE IS MISTAKE APPARENT FROM T HE RECORD THAT THE SECOND CONDITION OF PARA-3.3 (B) OF THE INSTRUCTION IS NOT F ULFILLED BECAUSE NEITHER NEELAM EXPORTS 2 APPEAL WAS PENDING ON 16-02-2016 I.E. THE DATE ON WH ICH ASSESSMENT OF AY- 2014-2015 WAS COMPLETED, NOR ADJUSTMENT DONE IN AY-2 013-2014 IN ORDER DT.29-12-2016 WAS ADJUDICATED UPON IN APPEAL, AS AP PEAL IS FILED ON 01-02- 2017. MUCH LATER. THE SECOND CONDITION REQUIRES THAT SUCH ADJUSTMENT HAS BEEN UPHELD BY THE JUDICIAL AUTHORITIES OR PENDING I N APPEAL. THERE IS NO REQUIREMENT THAT THE ADJUSTMENT SHOULD BE DELETED. 4. WE FIND THAT ITAT HAS ADJUDICATED THE ISSUE IN D ISPUTE BY CONCLUDING AS UNDER:- 10. UPON CAREFUL CONSIDERATION WE FIND THAT AS PER PARA 3.3B OF THE CBDT GUIDELINE DATED 10.3.16 AS UNDER: - 2.3 AS PER THE PARA 3.3(B) OF CBDT GUIDELINES DATED 10.03.2016 FOR IMPLEMENTATION OF TRANSFER PRICING PROVISIONS, CASES SELECTED FOR SCRUTINY ON NON-TRANSFER PRICING RISK PARAMETERS BUT ALSO HAVING INTERNATIONAL TRANSACTIONS OR SPECIFIED DOMESTIC TRANSACTIONS SHALL BE REFERRED TO THE TPOS ONLY IN THE FOLLOWING CIRCUMSTANCES: (A)........ (B) WHERE THERE HAS BEEN A TRANSFER PRICING ADJUSTME NT OF KS.10 CRORE OR MORE IN AN EARLIER ASSESSMENT YEAR AND SUCH ADJUSTME NT HAS BEEN UPHELD BY THE JUDICIAL AUTHORITIES OR IS PENDING IN APPEAL; AND 11 A READING OF THE ABOVE POSITS THAT FOR REFERRING T HE MATTER OF THE TRANSFER PRICING OFFICER FOR CASE SUCH AS THE ASSESSEE THERE SHOULD BE AN TRANSFER PRICING ADJUSTMENT OF OVER 10 CRORE IS AN EARLIER AM OUNT FOR WHICH SHOULD NOT HAVE BEEN DELETED IN JUDICIAL PROCEEDINGS OR THE SA ME MAY BE PENDING ADJUDICATION. THE IMPORT OF THIS IS THAT THERE SHOULD BE A TRANSFER PRICING ADJUSTMENT WHICH SHOULD NOT HAVE BEEN DELETED IN APPE AL. THERE IS NO CASE THAT THE ADJUSTMENT WAS NOT SUBSISTING. IN THE FACTS OF TH E PRESENT CASE IT IS UNDISPUTED THAT THERE WAS A TRANSFER PRICING ADJUSTME NT FOR ASSESSMENT YEAR 13-14 FOR AN AMOUNT OF RS. 15,50,50,297/- BY THE ORD ER OF THE TRANSFER PRICING OFFICER DATED 28.06.16. 12. THE ASSESSING OFFICER WAS IN POSSESSION OF THIS TRANSFER PRICING ADJUSTMENT ORDER AND ADMITTEDLY THIS WAS NOT DELETED IN APPEAL, HENCE IT WAS INCUMBENT UPON THE ASSESSING OFFICER TO REFER THE INTER NATIONAL TRANSACTION OR SPECIFIED DOMESTIC TRANSACTION TO TRANSFER PRICING O FFICER FOR THE PRESENT YEAR. 13. THE EMPHASIS BY THE ID. COUNSEL OF THE ASSESSEE ON TO THE DATE OF ASSESSMENT ORDER IS IRRELEVANT AS THE SAID GUIDELINE ONLY MENTIONS SUBSISTING TRANSFER PRICING ADJUSTMENT IS AN EARLIER AMOUNT OF RS . 10 CRORE. IT IS COMMON KNOWLEDGE THAT TRANSFER PRICING ADJUSTMENT ARISE OUT OF THE TRANSFER PRICING OFFICERS ORDER. IT IS UNDISPUTED THAT THERE WA S A TRANSFER PRICING ADJUSTMENT BY TPO DATED 28.10.16, WHICH WAS AVAILABLE BEFORE THE ASSESSING OFFICER BEFORE HE PASSED THE ASSESSMENT ORDER OF AY 2 015-16. ON 16.12.2016 WHAT THE ASSESSEE WANT IS THAT WORD TRANSFER PRICING A DJUSTMENT 'BY AN ASSESSMENT ORDER' SHOULD BE INSERTED IN THE GUIDELIN E. IN OUR CONSIDERED OPINION IT IS IMPERMISSIBLE TO ADD WORDS AS PER ONCE CONVENIENCE. IT WOULD BE AN ABSURD INTERPRETATION. NEELAM EXPORTS 3 14. IN THIS VIEW OF THE MATTER IN OUR CONSIDERED OPI NION THE LEARNED COMMISSIONER OF INCOME TAX WAS CORRECT IN HOLDING THA T IN AS MUCH AS THE OFFICER HAS NOT REFERRED THE MATTER FOR TRANSFER PRIC ING ADJUSTMENT AS REQUIRED BY THE CBDT GUIDELINE. IT IS SETTLED LAW THAT CBDT CIRCULAR & GUIDELINES ARE BOUNDING ON REVENUE AUTHORITIES. BUT N OT FOLLOWING THE SAME THE ASSESSEE HAS CLEARLY COMMITTED A MISTAKE, WHICH GO ES THE ID. CIT JURISDICTIONAL U/S. 263 TO PASS A REVISIONARY ORDER. HENCE THE ORDER OF ASSESSING OFFICER WAS ERRONEOUS IN AS MUCH AS PREJU DICIAL TO THE INTEREST OF REVENUE. HENCE WE UPHOLD THE ORDER OF CIT. 5. WE ARE OF THE OPINION THAT THERE IS NO MISTAKE A PPARENT FROM RECORD AS PER THE SUBMISSION OF THE ASSESSEE ABOVE. ASSESSEE IS SEEKING REVIEW OF THE ORDER. PARAGRAPH 13&14 OF THE ABOVE ORDER DULY CONS IDERS THE RELEVANT ASPECT. 6. ANOTHER MISTAKE POINTED OUT IS THAT ITAT HAS NOT CONSIDERED ITAT BANGALORE BENCH DECISION IN THE CASE OF TEXPORT OVE RSEAS PRIVATE LIMITED VERSUS DCIT. IN THIS REGARD IT IS NOTED THAT ITAT IN THE EARLIER PART OF ITS ORDER HAS DULY NOTED THAT THE ASSESSEE HAS REFERRED TO SEVERAL DEC ISIONS. WE ARE OF THE OPINION THAT THERE IS NO REQUIREMENT THAT EACH AND EVERY CA SE LAW CITED BY THE ASSESSEE HAS TO BE SPECIFICALLY DEALT WITH IN THE ORDER OF I TAT UNLESS THE SAME IS FOUND TO BE APPLICABLE ON THE FACTS OF THE CASE. WE ARE O F THE CONSIDERED OPINION THAT ASSESSEE IS SEEKING A REVIEW OF THE ORDER OF THE IT AT WHICH IS NOT SUSTAINABLE IN LAW. 7. UPON CAREFUL CONSIDERATION WE FIND THAT ITAT HAS DULY APPRECIATED THE SUBMISSIONS AND THEREAFTER PASSED THE ORDER UPHOLDI NG THE ORDER'S OF AUTHORITIES BELOW. WE FIND THAT BY WAY OF THIS MISC ELLANEOUS APPLICATION THE ASSESSEE SEEKS A REVIEW OF THE ORDER OF THE TRIBUNA L IN THE GARB OF RECTIFICATION OF MISTAKE APPARENT FROM RECORD. IT IS SETTLED LAW THAT A REVIEW OF THE ORDER IN THE GARB OF RECTIFICATION OF MISTAKE APPARENT FROM RECORD IS NOT PERMISSIBLE IN LAW. NEELAM EXPORTS 4 8. ACCORDINGLY THIS MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE STANDS DISMISSED PRONOUNCED IN THE OPEN COURT ON 9.3.2021. SD/- SD/- (SHAKTIJIT DEY) (SHAMIM YA HYA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED : 09/03/2021 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR) PS ITAT, MUMBAI