Appeal details
Counselvise Citation
[2023] 140 COUNSELVISE.COM (IT) 124321 (ITAT-BANGALORE)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 4 month(s) 2 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
04-07-2023
Appeal Filed By
Assessee
Order Result
PartlyAllowed
Bench Allotted
A
Next Hearing Date
17-11-2022
Assessment Year
2008-2009
Appeal Filed On
02-03-2022
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL ‘A’ BENCH : BANGALORE BEFORE SMT. BEENA PILLAI, JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER M.P. No. 24/Bang/2022 (in IT(TP)A No. 1565/Bang/2013) Assessment Year : 2008-09 M/s. Robert Bosch Engineering & Business Solution Ltd., No. 123, Industrial Layout, Koramangala, Hosur Road, Bangalore – 560 095. PAN: AAACR7108R Vs. The Deputy Commissioner of Income Tax (LTU), Bangalore. APPELLANT RESPONDENT Assessee by : Shri Percy Pardiwala, Sr. Advocate Revenue by : Shri Gudimella VP Pavan Kumar, JCIT (DR) Date of Hearing : 18-11-2022 Date of Pronouncement : 05-07-2023 ORDER PER BEENA PILLAI, JUDICIAL MEMBER Present M.P. is filed by the assessee seeking certain typographic mistakes that has crept in the order dated 01.09.2021 passed by this Tribunal inadvertently. 2. The Ld.Counsel submitted that, this Tribunal while recordings its observations in para 5.7(c) upheld the turnover filter to Page 2 of 21 M.P. No. 24/Bang/2022 (in IT(TP)A No. 1565/Bang/2013) exclude comparables of below 200 crores and above 2000 crores that was applied by the Ld.CIT(A). 3. The Ld.Counsel submitted that the assessee under SWD segment, has turnover of 606.03 crores and therefore the Ld.CIT(A) excluded KALS Information Systems Ltd., as its turnover was less than 200 crores. The Ld.CIT(A) excluded such comparables that was having turnover more than 200 crores. The Ld.Counsel submitted that while excluding the 3 comparables in para 5.7(c), this Tribunal did not refer to the remaining comparables under the software development segment that fails this turnover filter. In the miscellaneous petition filed, the assessee submitted that following 11 comparables also deserves to be excluded on the same principles: 4. On the contrary, the Ld.DR submitted that these comparables were never alleged by the assessee in the grounds of appeal filed by the assessee in IT(TP)A No. 1565/Bang/2013. It is submitted that assessee raised additional ground wherein specific comparables was challenged for exclusion on functional dissimilarities under ITeS segment. He submitted that the above Page 3 of 21 M.P. No. 24/Bang/2022 (in IT(TP)A No. 1565/Bang/2013) referred comparables has not been alleged in the appeal filed by assessee and hence non consideration of the above comparables would not amount a mistake apparent on record. We have perused the submissions advanced by both sides in the light of records placed before us. 5. We find the submissions of the Ld.DR to be correct. We have carefully analysed the appeal filed by the assessee wherein general ground has been raised, a copy of which is scanned and reproduced as under: Page 4 of 21 M.P. No. 24/Bang/2022 (in IT(TP)A No. 1565/Bang/2013) As correctly pointed out by the Ld.DR, specific comparables were objected by the assessee under ITeS segment that was challenged Page 5 of 21 M.P. No. 24/Bang/2022 (in IT(TP)A No. 1565/Bang/2013) by way of additional ground in application filed on 07.11.2017. We therefore dismiss this issue raised by assessee as there is no mistake apparent on record. 6. Next issue alleged by assessee is in respect of non-adjudication of the application for admission of additional ground filed on 07.11.2017 in assessee’s appeal. The relevant extract of the application is as under: “Referring the Grounds of Appeal originally filed by the Appellant along with the Memorandum of Appeal in Form 36 on November 14, 2013, wherein the Appellant has pleaded in Ground No. 2(f): Ground 2(f) "That on the facts and in the circumstances of the case, the learned CIT (A) — LTU erred in arbitrarily arriving at a set of companies as comparable for the services rendered by the Appellant, on rejecting companies that are otherwise functionally comparable to the Appellant and on inclusion of companies that otherwise fail the test of comparability." Further, the learned Assistant Commissioner of Income Tax ("AO")/ TPO has erred in accepting the companies that are functionally not akin to the Appellant, while performing the comparability analysis of the IT enabled services. The Appellant would like to plead for the exclusion of the following companies that are not functionally comparable to the Appellant: i. Accentia Technologies Limited — Seg ii. Acropetal (Seg - Engineering Design Service) iii. Coral Hub Limited iv. Crossdomain Solution Pvt. Ltd. v. Eclerx Services Ltd. vi. Genesys International Corporation Ltd vii. Infosys BPO Ltd. viii. Mold-Tek Technologies Ltd. ix. Wipro Ltd. (BPO Division) 4. The Appellant craves leave to add to, amend or alter the ground herein. 5. For these and other grounds that may be urged at the time of hearing, the appellant prays for appropriate relief.” 7. We note from the log book notings that at the time of hearing on the original date, the Ld.Counsel argued on the TP issues that Page 6 of 21 M.P. No. 24/Bang/2022 (in IT(TP)A No. 1565/Bang/2013) was raised in ITeS segment and additional round of application by application dated 07.11.2017. 7.1. On perusal of the impugned order, we note that the said application was not inadvertently adjudicated. We also note that there is a categorical recording in para 12 of the impugned order in respect of the grounds raised for transfer pricing issues by considering it to be general in nature. Accordingly, there is a mistake apparent on record that has crept in by non-adjudication of the additional ground raised vide application dated 07.11.2017. We therefore rectify the said mistake by adjudicating the same as under: Admission of Application dated 07.11.2017 seeking admission of Addl. Grounds of appeal 13.1. The Ld. Counsel submitted that no new facts needs to be considered in order to dispose of the additional grounds raised by the assessee. It is submitted that, the additional grounds raised do not require verification of any new facts. The Ld.Counsel, thus prayed for the admission of additional grounds so raised by assessee. 13.2. On the contrary, the Ld.CIT.DR though opposed admission of the additional ground, could not bring anything on record which would challenge such a right available to assessee under the Act. We have perused the submissions advanced by both sides in light of records placed before us. Page 7 of 21 M.P. No. 24/Bang/2022 (in IT(TP)A No. 1565/Bang/2013) 13.3. We note that the additional grounds are directly connected with the main issue of transfer pricing additions and no new facts needs to be investigated for adjudicating the same. Considering the submissions and respectfully following the decisions of Hon’ble Supreme Court in case of National Thermal Power Co. Ltd. Vs. CIT reported in (1998) 229 ITR 383 and Jute Corporation of India Ltd. Vs. CIT reported in 187 ITR 688, we are admitting the additional grounds raised by the assessee. Accordingly, the additional ground raised by assessee vide application dated 07.11.2017 stands admitted. 13.4. It is the contention of the Ld.Counsel that amongst the additional ground raised, assessee seeks exclusion of only following 5 comparables on functional dissimilarities. a) Accentia Technologies Ltd. –Seg b) Acropetal (Seg – Engineering Design Service) c) Coral Hub Ltd. d) Crossdomain Solution Pvt. Ltd. e) Genesys International Corporation Ltd. The above 5 comparables have been alleged for exclusion in the MP filed before this Tribunal. (A) Accentia Technologies Ltd. (seg) Page 8 of 21 M.P. No. 24/Bang/2022 (in IT(TP)A No. 1565/Bang/2013) The Ld.Counsel submitted that this company is involved in IT enabled Services in the nature of medical transcription billing and coding. It is submitted that it has earned super normal profit of 41.76% and 81% of the revenue is from medical transcription, billing and coding. The Ld.Counsel submitted that segmental information of ITeS segment is not available and admittedly it is a product development company. He thus submitted that the said comparable deserves to be excluded from the final list. The Ld.AR places reliance on the decision of Symphony Marketing Services India Pvt. Ltd. in IT(TP)A No. 1316/Bang/2012 vs. ITO by order dated 14.08.2013. He submitted that the said decision is for the relevant Assessment Year under consideration. (B) Acropetal (Seg – Engineering Design Service) The Ld.Counsel submitted that this company is functionally different with that of assessee as it is rendering engineering design services and is considered to be a high end in the nature of routine IT enabled service functions. He submitted that the present assessee before this Tribunal is rendering solutions for business in the engineering services and therefore is a back end office service provider. It is the submission of the Ld.Counsel that this comparable carries out with the business of export Page 9 of 21 M.P. No. 24/Bang/2022 (in IT(TP)A No. 1565/Bang/2013) of software services and it also derives income from engineering design services and software development services. He thus objected for this comparable to be included in the final list. (C) Coral Hub Ltd. The Ld.Counsel submitted that this company is functionally different with that of assessee as it undertakes the services of data valuation, epublishing and custom application development services. We note that Coral Hub Ltd. has already been excluded by the Ld.CIT(A) for failing the RPT filter and therefore in our opinion this issue raised by assessee in respect of this comparable is rejected. (D) Crossdomain Solution Pvt. Ltd. The Ld.Counsel submitted that this company is functionally dissimilar with that of assessee as it is providing IT enabled services in the nature of KPO. It is submitted that it is also involved in development of product suites and routine low end ITeS services for which there is no segmental details available. He thus pleaded for exclusion of this comparable from the final list. (E) Genesys International Corporation Ltd. The Ld.Counsel submitted that this comparable is functionally not similar with that of assessee as it is involved in providing geographical information systems services including generation, processing, Page 10 of 21 M.P. No. 24/Bang/2022 (in IT(TP)A No. 1565/Bang/2013) management and maintenance of GIS data. It is submitted that this comparable during the year under consideration had earned abnormal high profits and also carries out R&D services leading to ownership of intangibles. He thus prayed for the exclusion of this comparable from the final list. 13.5. On the contrary, the Ld.DR in respect of the above comparables relied on the orders passed by authorities below. 13.6. We note that the comparables alleged by assessee under ITeS segment hereinabove were also chosen as comparables in case of Symphony Marketing Services India Pvt. Ltd. (supra). The said comparables were excluded in the above case for being functionally not similar with that of the assessee therein. The relevant order is placed at pages 174-199 of the case law paper book. We also note that the said decision has been followed in case of M/s. Mphasis Ltd. in ITA No. 325/Bang/2014 for Assessment Year 2008-09 vide order dated 01.06.2018. 13.7. The said order is placed at pages 142-161 of the case law paper book. Hon’ble Tribunal in case of Symphony Marketing Services India Pvt. Ltd. (supra) observed and held as under: “(1) Accentia Technologies Ltd. (Seg.) 10. This was considered as a comparable by the TPO and listed at Sl.No.1 of the comparable companies Page 11 of 21 M.P. No. 24/Bang/2022 (in IT(TP)A No. 1565/Bang/2013) chosen by the TPO. The ld. counsel for the assessee drew our attention to the fact that there are extra ordinary events that occurred during the previous year in this company. Our attention was draw to the annual report of this company for the A.Y. 200708 wherein the fact that this company had acquired Thunga Software Pvt. Ltd., GSR Physicians Billing Services Inc., GSR Systems Inc. and Denmed Inc. is mentioned. Our attention was also drawn to the decision of the Hyderabad ITAT Bench in the case of Capital IQ Information Systems India Pvt. Ltd. v. DCIT [ 2013] 32 Taxman.com 21 (Hyd. Trib). In the aforesaid decision, the Hyderabad Bench of the Tribunal had to deal with a case of determination of ALP in the case of an assessee who was providing ITES business support services for the A.Y. 2007-08. The TPO had considered Accentia Technologies Ltd. as a comparable. The DRP however held that the said company cannot be compared as a comparable owing to extra ordinary events that took place during the previous year. The Tribunal upheld the order of the DRP observing as follows:- “I. Accentia Technologies Ltd. 10. It is the submission of the assessee that this company cannot be treated as a comparable because of uncomparable financial results arising out of amalgamation in the company. In this regard, the assessee has relied upon the order of the DRP for the assessment year 2008- 09 in assessee's own case. It is seen that the DRP while considering similar objection placed by the assessee in the case of another company, viz. Mold Tek Technologies Ltd., in the proceedings relating to the assessment year 2008-09, has observed in the following manner- "17.5. In addition to the above, the Director's Report of the company for the FY 2007-08 revealed the merger and the demerger. A company known as Techmen Tools Pvt. Ltd. had amalgamated with Mold-tek Technologies Ltd. with effect form 1st October, 2006. There was a de-merger of Plastic Division of the company and the resulting company is known as Moldtek Plastics Limited. The de-merger from the Moldtek Technologies took place with effect from 1st April, 2007. The merger and the Page 12 of 21 M.P. No. 24/Bang/2022 (in IT(TP)A No. 1565/Bang/2013) de-merger needed the approval of the Hon'ble High Court of Andhra Pradesh and also the approval of the shareholders. The shareholders of the company gave approval for the merger and the de-merger on 25.01.2008 and the Hon'ble High Court of Andhra Pradesh had approved the merger and de-merger on 25th July, 2008. Subsequently, the accounts of Moldtek Technologies for FY 2007-08 were revised. On a perusal of the annual report it is noticed that Teckmen Tools Pvt. Ltd. and the Plastic Division of the company were demerged and the resulting company was named as Moldtek Plastics Ltd. The KPO business remained with the company. A perusal of the Annual report revealed that to give effect to the merger and demerger, the financial statements were revised and restated after six months form the end of the financial year 31.3. 2008. The assessee filed Form No.21 under the Companies Act with the Registrar of Companies on 26th August, 2008. Thus the effective date of the scheme of merger and demerger was 26th August, 2008. The Annual Report supported the argument of the assessee that there were merger and demerger in the financial year and it was an exceptional year of performance as financial statements were revised by this company much after the closure of the previous year. The Panel agrees with the contention of the assessee that it is an exceptional year having significant impact on the profitability arising out of merger and demerger." 11. On careful consideration of the matter, we also agree with the aforesaid view of the DRP that extra-ordinary event like merger and de- merger will have an effect on the profitability of the company in the financial year in which such event takes place. It is the contention of the assessee that in case of the aforesaid company, there is amalgamation in December, 2006, which has impacted the financial result. This fact has to be verified by the TPO. If it is found upon such verification that the amalgamation Page 13 of 21 M.P. No. 24/Bang/2022 (in IT(TP)A No. 1565/Bang/2013) in fact ahs taken place, then the aforesaid comparable has to be excluded.” 11. We have considered the submissions of the ld. counsel for the assessee and are of the view that the ratio laid down by the Hyderabad Bench of the ITAT is squarely applicable to the present case also. It is clear that during the previous year there were extra ordinary events that took place in this company which warrants exclusion of this company as a comparable. We therefore hold that this company cannot be considered as a comparable. (2) Acropetal Technologies Ltd. (Seg.) 12. This company is listed at Sl.No.2 of the comparables chosen by the TPO. As far as this company is concerned, the objection of the assessee is that this company is not functionally comparable. The assessee is a BPO company that provides market analytics and data management services. To provide market analytics solutions, the assessee gives strategies that impact on client revenue including data based marketing strategies for customer acquisition, devising customer retention strategies and excluding loss mitigation strategies through cutting edge forecasting tools. The data management services provided by the assessee include routine business data reporting and management, website management, marketing data analysis and top line reporting. As far as Acropetal Technologies Ltd. is concerned, this company does the business of export of software services. It is also seen from the segmental revenue of this company (Note 15 to the notes on accounts to Annual Report for 07-08) that it derives income from engineering design services and software development services. It is also pertinent to point out that before the TPO, the assessee raised an objection that this company performs different functions and mainly engaged in the area of software development services and engineering design services. The TPO in his order has observed that the services rendered by this company fall in the definition of ITES. 13. We have considered the submissions of the learned counsel for the Assessee. On a perusal of the Note No.15 of notes to accounts which gives segmental revenue of this company, it is clear that Page 14 of 21 M.P. No. 24/Bang/2022 (in IT(TP)A No. 1565/Bang/2013) the major source of income for this company is from providing Engineering Design Service and Information Technology Services. The functions performed by the Engineering Design Services segment of the company cannot be considered as comparable to the ITES/BPO functions performed by the Assessee. The performance of Engineering Design Services is regarded as providing high end services among the BPO which requires high skill whereas the services performed by the Assessee are routine low end ITES functions. We therefore hold that this company could not have been selected as a comparable, especially when it performs engineering design services which only a Knowledge Process Outsourcing [KPO] would do and not a Business Process Outsourcing [BPO]. (4) Crossdomain Solutions Ltd. 18. This company was considered as a comparable and listed at Sl.No.8 of the comparables chosen by the TPO. It is the stand of the assessee that this company is not functionally comparable. As observed in the case of Coral Hubs Ltd., the TPO rejected the plea of the assessee on the basis of a non-existent TP order passed for the A.Y. 2007-08. It is seen that the business profile of this company is re-engineered payroll service. This company is also engaged in the development of information systems. These activities are totally different from the activities of the assessee which perform very limited/low end functions back office services. The review and business functions of Cross Domain is as follows:- “With a decade of experience in Payroll Outsourcing, Crossdomain has created a re- engineered payroll service EFFIPAY – that processes and delivers accurate payroll to clients with headcount up to 1000 employees in just 4 hours*. With Effipay Lite and Effipay Lite Plus, our bouquet of services cover end to end payroll, retrials, reimbursement, tax proof verifications upto issue of Form 16 for employees of our clients across different industry verticals. Our processes are highly scalable and provide end to end payroll solutions to clients with headcount ranging from 5 to 65,000.” Page 15 of 21 M.P. No. 24/Bang/2022 (in IT(TP)A No. 1565/Bang/2013) “Crossdomain’s IT knowledge and domain competence has provided the edge to develop information systems to implement process innovation and continuously increase efficiency and turn-around-time for business critical processes.” Source: http://www.cross-domain.com As can be seen from the above, the business of Cross Domain ranges from high end KPO services, development of product suites and routine low end ITES service. However, there is no bifurcation available for such verticals of services. Therefore the assessee contends that Cross Domain cannot be compared to a routine ITES service provider. 19. We are of the view that in the absence of any reasons given to the contrary either by the TPO or the DRP for regarding this company as a comparable, this company should be excluded from the list of comparables, accepting the plea of the Assessee. We hold accordingly. (6) Genesys International Corporation Ltd. 22. This company is listed at Sl. No.12 in the list of comparable companies chosen by the TPO. As far as this company is concerned, the stand of the assessee has been that this company is functionally not comparable and that it has a different employee skill set and that this company performs R&D services and also owns intangibles. This company is a geospatial services content provider specialising in land based technologies. From the notes to accounts of this company, it is seen that this company is engaged in providing geographical information services comprising of photogrammetry, remote sensing cartography, data conversion related computed based services and other related services. Further the business of this company requires skilled manpower and scientists, civil engineers, etc. The assessee is a routine ITES provider who does not require such highly skilled employees. Besides the above, this company also carries out R&D services and own intangibles. The aforesaid facts, in our view, will take this company out of the list of comparables. We may also point out that the objection of the assessee in this regard has been Page 16 of 21 M.P. No. 24/Bang/2022 (in IT(TP)A No. 1565/Bang/2013) disregarded by the TPO by mere observation that it cannot be rejected on the basis that it is into different functional line within ITES. In this regard, we may refer to the decision of the ITAT Bangalore Bench in the case of First Advantage Offshore Services Ltd. (supra), wherein it was observed as under:- “39. Having heard both the parties and having considered their rival contentions, we find that the assessee had raised elaborate objections to each of the comparables in group 3 before the TPO. The TPO has also reproduced the said objection in his order para 6.5.1. of page 178 of his order. He has rejected the contention of the assessee by holding that every function within BPO sector can be from low end to high end and the activities of the assessee such as accounting, web management, network management are BPO services using technology but these services are not categorized as KPO. He held that a call centre may offer support services like telemarketing to high end services like technical support services, where not only the level of knowledge, skill required would be high, but the technical knowledge as well would be high. According to him, back office transaction process services may be as remarkable and as complicated as insurance/market transaction processing services. He, therefore, rejected the contention of the assessee and treated the BPO as equivalent to KPO services. 40. We have to now consider whether a BPO and KPO are functionally similar and are comparable to each other. BPO is a sub-set of outscoring and involves the contracting of the operations and responsibilities of specific business functions or process to a third party services provider. Often business processes outsourcing are information technology based and referred to as ITES-BPO. KPO is one of the sub-segment of the BPO industry. It involves outsourcing of core information related business activities which are competitively important or form an integral part of a company’s value chain. It thus requires advanced analytical and technical skills as well as a high degree of Page 17 of 21 M.P. No. 24/Bang/2022 (in IT(TP)A No. 1565/Bang/2013) specialist expertise. The KPO services include all kinds of research and information gathering. Thus it can be seen that even though both BPO and KPO are offering information Technology based services, the skill and expertise and may be even the tools required are different which may result in different economic results of both the segments. Thus, in such circumstances, we are of the opinion that they cannot be compared with each other and have to be excluded from the list of comparables.” 23. It is thus clear from the aforesaid decision of the Tribunal that among the ITES companies there is a hierarchy in terms of skill required to provide services. It ranges from providing routine services where no skills and required and providing services where highly professionalized skills are required. Depending on the skills required to perform ITES the comparability has to be done. In view of the above, we are of the view that this company cannot be regarded as a comparable and deserves to be excluded from the list of comparables.” Respectfully following the above view, we direct the Ld.AO/TPO to exclude the above four comparables. 13.8. As Coral Hub Ltd. has already been excluded by Ld.CIT(A), there is no need of expressing any further opinion in respect of the same and the view taken by the Ld.CIT(A) is upheld.” Above paragraphs from 13.1 to 13.8 shall be read in continuation to para 13 of the impugned order. 8. The Ld.Counsel submitted that assessee is also seeking exclusion of Tata Elxsi Ltd. under software development service segment. 8.1. We note that in the additional ground raised vide application dated 07.11.2017, this comparable has not been allowed for exclusion. Page 18 of 21 M.P. No. 24/Bang/2022 (in IT(TP)A No. 1565/Bang/2013) 8.2. Accordingly we do not find any mistake apparent on record in not considering this comparable. This prayer of assessee therefore stands dismissed. 9. The next issue raised by assessee is in respect of some typographic mistakes that has crept in page 13 wherein this Tribunal has recorded the turnover of software development segment to be 53.59 crores as against 606.03 crores. On perusal of the relevant page, we note that the typographic mistake deserves to be corrected. Henceforth the relevant para at page 13 shall be read as under: “6.2......................................Since the turnover of the assessee in Software development segment was Rs. 606.03 crores, following the study of Dun & Brads Street, he held that the companies having turnover in the range of 1 crore to 200 crores alone can be considered as comparable with the assessee.” 10. The next issue alleged by the assessee is in respect of non- adjudication of additional ground of appeal filed by the assessee vide application dated 26.09.2018. The relevant ground raised in the said application reads as under: “1. Having regard to the facts and circumstances, the Appellant pleads the Hon’ble Bench to direct the AO to grant additional Foreign Tax Credit of Rs.68,08,358. 2. The Appellant craves leave to add to, amend or alter the ground herein. 3. For these and other grounds that may be urged at the time of hearing, the appellant prays for appropriate relief.” Page 19 of 21 M.P. No. 24/Bang/2022 (in IT(TP)A No. 1565/Bang/2013) 11. On perusal of the record, we note that the said additional ground raised by assessee has not been adjudicated in the impugned order. Accordingly the same is adjudicated as under: “13.9. The Ld. Counsel submitted that no new facts needs to be considered in order to dispose of the additional grounds raised by the assessee. It is submitted that, the additional grounds raised do not require verification of any new facts. The Ld.AR, thus prayed for the admission of additional grounds so raised by assessee. 13.10. On the contrary, the Ld.CIT.DR though opposed admission of the additional ground, could not bring anything on record which would challenge such a right available to assessee under the Act. We have perused the submissions advanced by both sides in light of records placed before us. 13.11. We note that the additional grounds are directly connected with the main issue of transfer pricing additions and no new facts needs to be investigated for adjudicating the same. Considering the submissions and respectfully following the decisions of Hon’ble Supreme Court in case of National Thermal Power Co. Ltd. Vs. CIT reported in (1998) 229 ITR 383 and Jute Corporation of India Ltd. Vs. CIT reported in 187 ITR 688, we are admitting the additional grounds raised by the assessee. Page 20 of 21 M.P. No. 24/Bang/2022 (in IT(TP)A No. 1565/Bang/2013) Accordingly, the additional ground raised by assessee vide application dated 26.09.2018 stands admitted. 13.12. The facts in respect of the same has been elaborately mentioned in the statement of facts scanned and reproduced hereinabove. 13.13. It is submitted by the Ld.Counsel that in assessee’s own case for A.Y. 2009-10 in ITA Nos. 1688/Bang/2017 & 1659/Bang/2017 was remanded to the Ld.AO for due verification by observing as under: “14. The Additional ground raised by the assessee relate to claim of foreign tax credit of Rs.1.54 crores. Since this is a legal ground and all facts are available on record, we admit the same. Since this issue requires examination at the end of AO, we restore this issue to the file of the A.O. for examining the claim of the assessee in accordance with law.” 13.14. The Ld.DR on the contrary relied on the orders passed by the authorities below. We have perused the submissions advanced by both sides in the light of records placed before us. 13.15. We note that the claim of foreign tax credit has to be considered as per the provisions of section 19 having regard to the double taxation agreement between India and Germany. We direct the Ld.AO to verify the claim of assessee based on the documents filed in respect of the same. Substantially assessee is directed to file all relevant details in order to substantiate the payment of taxes against which a Page 21 of 21 M.P. No. 24/Bang/2022 (in IT(TP)A No. 1565/Bang/2013) credit is set. Respectfully following the view taken in assessee’s own case, we remand this issue to the Ld.AO for necessary verification in accordance with law. Needless to say that proper opportunity of being heard must be granted to assessee.” 12. The above paragraphs 13.9 to 13.15 shall be read after para 13.8 of the impugned order. 13. The rest of the contents of order dated 01/09/2021 passed by this Tribunal shall remain unchanged. In the result, the MP filed by assessee stands partly allowed. Order pronounced in the open court on 05 th July, 2023. Sd/- Sd/- (LAXMI PRASAD SAHU) (BEENA PILLAI) Accountant Member Judicial Member Bangalore, Dated, the 05 th July, 2023. /MS / Copy to: 1. Appellant 4. CIT(A) 2. Respondent 5. DR, ITAT, Bangalore 3. CIT 6. Guard file By order Assistant Registrar, ITAT, Bangalore
AI Insights
The case involves M/s. Robert Bosch Engineering & Business Solution Ltd., the appellant, contesting certain typographic errors and the exclusion of comparables in a transfer pricing assessment for the assessment year 2008-09. The Tribunal's earlier order dated 01.09.2021 inadvertently included typographic mistakes and failed to adjudicate on some additional grounds raised by the assessee concerning the exclusion of specific comparables under the software development and ITeS segments. The Tribunal acknowledged these oversights and corrected the typographic errors, admitted the additional grounds, and directed a re-examination of the comparables excluded on functional dissimilarities.
