M/s Rahee Jhajharia E to E JV, Kolkata V. ACIT, Circle-33, Kolkata, Kolkata

MA 26/KOL/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3068 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-08-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: C
• Next Hearing Date: 25-08-2022
• Assessment Year: 2014-2015
• Appeal Filed On: 24-07-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Transfer pricing; TDS

Judgement Text

M.A. No. 26/KOL/2022 (n ITA No. 343/KOL/2019) Assessment Year : 2014-2015 Rahee Jhajharia E to E JV 1 IN THE INCOME TAX APPELLATE TRIBUNAL, ‘C’ BENCH, KOLKATA Before Shri Rajpal Yadav, Vice-President (KZ) & Shri Rajesh Kumar, Accountant Member M.A. No. 26/KOL/2022 (in I.T.A. No. 343/KOL/2019) Assessment Year: 2014-2015 Rahee Jhajharia E to E (JV),..............................................................Applicant “KEMWELL MANOR”, 5 th Floor, 10/D/2, Ho Chi Minh Sarani, Kolkata-700071 [PAN: AABAR5042H] -Vs.- Assistant Commissioner of Income Tax,............................................Respondent Circle-33, Kolkata, 10B, Middleton Row, 3 rd Floor, Kolkata-700071 Appearances by: Sri K.K. Khemka, Advocate, appeared on behalf of the assessee Smt. Ranu Biswas, Addl. CIT (DR), appeared on behalf of the Revenue Date of concluding the hearing : August 26, 2022 Date of pronouncing the order: August 29, 2022 O R D E R Per Rajpal Yadav, Vice-President (KZ):- The assessee has filed the present Miscellaneous Application pointing out apparent error in the order of the Tribunal dated 12 th July, 2022. 2. In the application, while pointing out the first error, the assessee has pleaded that in the Cause Title, its address has wrongly been mentioned. The Tribunal has mentioned the old address, whereas the assessee has shifted the new address and change of address was communicated to the Tribunal vide application dated 10.07.2019. M.A. No. 26/KOL/2022 (n ITA No. 343/KOL/2019) Assessment Year : 2014-2015 Rahee Jhajharia E to E JV 2 3. On due consideration of the facts and circumstances, we find it as an apparent error. This error has happened because fresh Form No. 36 was not updated by the Registry, where Private Secretary used to note the address in the Cause Title. We rectify this apparent error and correct address in the Cause Title be read as under:- “Rahee Jhajharia E to E (JV)”, “Kemwell Manor”, 5 th Floor, 10/D/2, Ho Chi Minh Sarani, Kolkata-700071, West Bengal” 4. The ld. Counsel for the assessee further contended that in the grounds of appeal, the assessee has pleaded that reference made to the Transfer Pricing Officer (TPO) was not in consonance with law and in this connection, necessary CBDT Instructions were brought to the notice to the Bench but this ground has not been decided by the Tribunal. 5. The ld. Sr. D.R. is unable to submit anything because she has not represented on behalf of the Revenue. Shri Gaurav Kananjia, CIT (DR), TPO has represented the Revenue. Therefore, she could not have any idea about the proceedings. 6. At the time of hearing apart from all the grounds of appeal raised by the assessee on merit including the issue agitated in the appeal, the assessee has raised additional ground of appeal. The arguments were advanced only on the additional ground of appeal, whereby it was contended that since clause (i) of Section 92BA has been omitted by the Finance Act, 2017, which provide a reference required to be made for determining the Arms Length Price of a transaction, where amounts paid to the related person under section 40A(2)(b) are involved. In other words, any transaction where 40A(2)(b) was attracted was not required M.A. No. 26/KOL/2022 (n ITA No. 343/KOL/2019) Assessment Year : 2014-2015 Rahee Jhajharia E to E JV 3 to be referred to TPO for determining the Arms Length Price. According to the assessee, once this provision was eliminated from the statute book, then this elimination would be applicable on the pending matters also because omission of the provision, it is to be construed that this provision has never been in existence and this non-existence of the provision is to be applied on the pending matters. 7. We have accepted this contention of the assessee that provision has been omitted and this transaction is not required to be referred to the TPO, for determination of Arms Length Price. In such a situation, we do not deem it proper to consider all other alternative contentions, which in our view, was just an academic exercise. Therefore, we do not find any apparent error on this issue. The application of the assessee is rejected on this aspect. 8. The ld. Counsel for the assessee further submitted that one of the issues agitated in Ground No. 7 was relating to TDS Credit. Tribunal has remitted the issue to a limited extent upto the amount of Rs.1,22,317/-. In other words, Tribunal has held that ld. Assessing Officer has to verify whether the TDS Credit of this amount is to be given or not? On the other hand, Tribunal should have relegated the whole issue regarding verification of Form No. 26AS and re-adjudication of the issue. The ld. Counsel for the assessee submitted that he has placed on record Form No. 26AS in this regard. 9. We do not find any merit in this submission of the assessee because we have relegated the issue, which has emerged out from the impugned order. There is no discussion about admissibility of higher amount of credit to the assessee from the impugned order and, therefore, we do not find any error on this issue also. The application of the assessee is partly allowed as discussed above. M.A. No. 26/KOL/2022 (n ITA No. 343/KOL/2019) Assessment Year : 2014-2015 Rahee Jhajharia E to E JV 4 10. In the result, the Miscellaneous Application of the assessee is partly allowed as indicated above. Order pronounced in the open Court on August 29 th , 2022. Sd/- Sd/- (Rajesh Kumar) (Rajpal Yadav) Accountant Member Vice-President (KZ) Kolkata, the 29 th day of August, 2022 Copies to : (1) Rahee Jhajharia E to E (JV), “KEMWELL MANOR”, 5 th Floor, 10/D/2, Ho Chi Minh Sarani, Kolkata-700071 (2) Assistant Commissioner of Income Tax, Circle-33, Kolkata, 10B, Middleton Row, 3 rd Floor, Kolkata-700071 (3) Commissioner of Income Tax(Appeals)-9, Kolkata; (4) Commissioner of Income Tax-------,Kolkata; (5) The Departmental Representative (6) Guard File TRUE COPY By order Assistant Registrar, Income Tax Appellate Tribunal, Kolkata Benches, Kolkata Laha/Sr. P.S.