The ACIT, Circle-1(2), Baroda V. M/s. Fag Bearings India Ltd., Vadodara

MA 257/AHD/2017

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9181 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 1 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-12-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: I
• Assessment Year: 2002-2003
• Appeal Filed On: 23-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Transfer pricing

Judgement Text

MA NO.257/AHD/2017 (IN ITA NO.108/AHD/2016) ASSESSMENT YEAR: 2002-03 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD D BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR VICE PRESIDENT AND MADHUMITA ROY JM] M.A. NO.257/AHD/2017 (IN ITA NO.108/AHD/2016) ASSESSMENT YEAR: 2002-03 ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1(1)(2), VADODARA. ..... ....... APPLICANT VS. FAG BEARING INDIA LIMITED .. .. RESPONDENT (NOW SCHAEFFLER INDIA LIMITED), P.O. MANEJA, VADODARA 390 013. [PAN: AAACF 3357 Q] APPEARANCES BY S.K. DEV FOR THE APPLICANT BHAVIN MARFATIA FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 16.11.2018 DATE OF PRONOUNCEMENT : 20.12.2018 O R D E R PER PRAMOD KUMAR, VICE PRESIDENT: BY WAY OF THIS MISCELLANEOUS APPLICATION THE ASSESS ING OFFICER-APPLICANT HAS POINTED OUT THE FOLLOWING DEFECTS IN THE ORDER DATE D 24.01.2017 PASSED BY THE TRIBUNAL :- THE FOLLOWING GROUND WAS RAISED BEFORE THE HON'BLE ITAT: 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LD. CIT (APPEALS) ERRED IN BY DELETING THE ENTIRE ADDITION ON ACCOUNT OF TRANSFER PRICING BY WITHOUT GOING ON MERITS OF CASE AND FACT S AND IGNORED THE TPO'S CONTENTION SUBMITTED THROUGH REMAND REPORT AN D THE DIRECTIONS OF HONBLE ITAT THAT ARMS LENGTH PRICE OF INTERNATI ONAL TRANSACTIONS OF THE APPELLANT SHOULD BE DETERMINED AT ENTIRETY LEVE L BY FOLLOWING TNM METHOD.' MA NO.257/AHD/2017 (IN ITA NO.108/AHD/2016) ASSESSMENT YEAR: 2002-03 PAGE 2 OF 3 THE APPEAL BEFORE HON'BLE ITAT IS FILED BY WAY OF M ISC. APPLICATION REQUESTING THAT THE HON'BLE ITAT'S ORDER DATED 24.0 1.2017 (RECEIVED ON 24.05.2017) IS FACTUALLY INCORRECT INASMUCH AS THE ITAT, WHILE HOLDING THAT THE APPEAL IS ILL-CONCEIVED AS THE IMPUGNED ORDER ONLY GIVES EFFECT TO THE TRIBUNAL'S ORDER WHICH IS ALREADY IN APPEAL BEFORE THE HON'BLE HIGH COURT. ON VERIFICATION OF RECORDS, IT IS SEEN THAT REVENUE HA S NOT PREFERRED BEFORE HON'BLE HIGH COURT AGAINST THE ORIGINAL ORDER OF HON'BLE IT AT DATED 04.11.2014. FURTHER, FROM THE IMPUGNED ORDER OF HON'BLE ITAT, I T COULD NOT BE GATHERED THAT THE ASSESSEE HAS PREFERRED APPEAL BEFORE HON'B LE HIGH COURT AGAINST THE ITAT'S ORDER DATED 04.01.2014. RELIEF CLAIMED IN APPLICATION IT IS PRAYED THAT THE ITAT MAY KINDLY RECALL ITS OR DER DATED 24.01.2017 IN ITA NO. 108/AHD/2016, WHEREIN THE HON'BLE ITAT, AHMEDABAD HAVE DISMISSED THE APPEAL OF THE REVENUE BY HOLDING THE APPEAL AS ILL-CONCEIVED AS THE SAME ARISES OUT OF ORDER GIVING EFFECT TO THE T RIBUNAL, WHICH IS ALREADY IN APPEAL BEFORE THE HON'BLE HIGH COURT. 2. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. IN THIS CASE APPEAL WAS REJECTED ON THE GROUND THAT WH AT WAS DONE BY THE CIT(A) WAS ONLY TO GIVE EFFECT TO THE DIRECTIONS CONTAINED IN THE TRIBUNALS ORDER. IT WAS NOT EVEN THE CASE OF THE ASSESSING OFFICER THAT THE DIRECTIO NS WAS NOT PROPERLY IMPLEMENTED BUT THE GRIEVANCE, AS LEARNED DEPARTMENTAL REPRESEN TATIVE FAIRLY ADMITS, WAS AGAINST THE DIRECTIONS ITSELF. THAT GRIEVANCE, IF AT ALL, COULD ONLY BE RAISED IN THE APPEAL AGAINST THE ORIGINAL ORDER BY WHICH THE DIRE CTIONS WERE GIVEN AND NOT AGAINST THE CIT(A)S ORDER BY WHICH THE DIRECTIONS WERE IMP LEMENTED. IN THESE CIRCUMSTANCES, WHETHER THE PARTIES HAVE GONE IN APP EAL AGAINST THE ORIGINAL ORDER BEFORE THE HONBLE HIGH COURT OR NOT IS REALLY NOT MATERIAL INASMUCH AS IF THEY HAVE NOT GONE IN APPEAL AGAINST THE ORIGINAL ORDER OF TH E APPEAL THEN THEY CANNOT RAISE GRIEVANCE AGAINST THE DIRECTIONS CONTAINED IN THE O RDER AT THIS STAGE AND IF THEY HAVE GONE IN APPEAL THEN THEY CANNOT RAISE THE GRIEVANCE AGAINST THE IMPLEMENTATION OF THOSE DIRECTIONS EITHER BECAUSE THAT WOULD BE A WHO LLY ACADEMIC AND REPETITIVE EXERCISE. THEREFORE, WHICHEVER WAY WE LOOK AT IT, THE GRIEVANCE RAISED BY THE ASSESSING OFFICER WAS ILL-CONCEIVED AND THAT IS PRE CISELY WHAT THE TRIBUNAL HAS HELD IN THE ORDER UNDER REFERENCE. IN VIEW OF THESE DIS CUSSIONS AND BEARING IN MIND ENTIRETY OF THE CASE, WE SEE NO MERITS IN THIS MISC ELLANEOUS APPLICATION. THE MISCELLANEOUS APPLICATION IS, THEREFORE, DISMISSED. MA NO.257/AHD/2017 (IN ITA NO.108/AHD/2016) ASSESSMENT YEAR: 2002-03 PAGE 3 OF 3 3. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE ASSESSING OFFICER IS DISMISSED. PRONOUNCED IN THE OPEN COURT TODAY ON TH E 20 TH DAY OF DECEMBER, 2018. SD/- SD/- MADHUMITA ROY PRAMOD KUMAR (JUDICIAL MEMBER) (VICE PRESIDENT) AHMEDABAD, DATED THE 20 TH DAY OF DECEMBER, 2018 PBN/* COPIES TO: (1) THE APPELLANT (2) THE RESPOND ENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD