Asst.C.I.T., Bangalore V. Applied Materials India Private Limited, Bangalore

MA 269/BANG/2017

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 5591 (ITAT-BANGALORE)
• Duration Of Justice: 8 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-12-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 06-04-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: T SURYANARAYANA

Judgement Text

MP.269/BANG/2017 PAGE - 1 IN THE INCOME TAX APPELLATE TRIBUNAL BENGALURU BENCH 'A', BENGALURU BEFORE SHRI. INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI. LALIT KUMAR, JUDICIAL MEMBER MISCELLANEOUS PETITION NO.269/BANG/2017 (IN I.T(TP).A NOS.17 & 39/BANG/2016 (ASSESSMENT YEAR : 2011-12) DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE 1(1)(1), BENGALURU .. APPLICANT V. M/S. APPLIED MATERIAL INDIA P. LTD, UNIT-5, 3 RD FLOOR, EXPLORER BUILDING, INTERNATIONAL TECH PARK, WHITEFIELD ROAD, BENGALURU 560 066 .. RESPONDENT PAN : AABCA2635C ASSESSEE BY : SHRI. T. SURYANARAYANA, ADVOCATE REVENUE BY : DR. P. V. PRADEEP KUMAR, ADDL. CIT HEARD ON : 15.12.2017 PRONOUNCED ON : 26.12.2017 O R D E R PER LALIT KUMAR, JUDICIAL MEMBER : THE PRESENT MISCELLANEOUS PETITION IS FILED BY THE REVENUE SEEKING RECTIFICATION OF THE MISTAKE THAT HAS CREPT IN THE ORDER OF THE TRIBUNAL IN IT(TP)A.17/BANG/2016 & IT(TP)A.39/BANG/ 2016, DT.21.09.2016, FOR THE ASSESSMENT YEAR 2011-12. MP.269/BANG/2017 PAGE - 2 02. THE LD. DR HAS SUBMITTED THAT THE GROUND NO.7 O F THE REVENUE APPEAL HAS NOT BEEN ADJUDICATED BY THE TRIBUNAL IN ITS ORDER DT.21.07.2016, WHICH READS AS UNDER : 7. THE DRP ERRED IN DIRECTING TO EXCLUDE E-INFOCHI PS LTD., FROM THE LIST OF COMPARABLES HOLDING THAT NO SEGMEN TAL INFORMATION IS AVAILABLE AND THAT IT FAILS 75% SERV ICE REVENUE FILTER, BY NOT ACKNOWLEDGING THE FACT THAT THE DETE RMINATION OF ALP BY CARRYING OUT COMPARABILITY ANALYSIS OF THE C OMPARABLE COMPANIES IS AN ART AND NOT EXACT SCIENCE AS NO TWO COMPANIES ARE EXACTLY SAME AND ALSO THE DRP ERRED IN APPLYING THE SERVICE REVENUE INCOME FILTER BY TAKING SOFTWARE SERVICE I NCOME TO TURNOVER RATIO RATHER THAN SERVICE INCOME TO TURN OVER RATIO. THE LD. DR SUBMITTED THAT ADJUDICATION OF THIS GROU ND IS ESSENTIAL AND THE TRIBUNAL INADVERTENTLY HAS OMITTED TO ADJUDICAT E THIS GROUND. 03. THE LD. AR HAS NOT REBUTTED THE SUBMISSIONS OF DR REGARDING NON-ADJUDICATION OF THIS GROUND AND HAS FAIRLY CONC EDED THAT THE TRIBUNAL MAY RECALL THE ORDER FOR THE LIMITED PURPO SE OF ADJUDICATING GROUND NO.7 OF THE REVENUES APPEAL. 04. HAVING HEARD THE PARTIES, AND ORDER PASSED BY T HE TRIBUNAL, IN OUR CONSIDERED OPINION THE TRIBUNAL HAS COMMITTED M ISTAKE APPARENT FROM THE RECORD AS THE TRIBUNAL HAS NOT ADJUDICATED THE GROUND NUMBER 7, THEREFORE WE DEEM IT APPROPRIATE TO RECALL THE D ECISION FOR THE LIMITED PURPOSE OF ADJUDICATING GROUND 7 OF THE REV ENUES APPEAL. MP.269/BANG/2017 PAGE - 3 05. IN THE RESULT, MISCELLANEOUS PETITION FILED BY THE REVENUE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 26TH DAY OF D ECEMBER, 2017. SD/- SD/- (INTURI RAMA RAO) (LALIT KUMAR) ACCOUNTANT MEMBER JUDICIAL M EMBER BENGALURU DATED : 26.12.2017 MCN* COPY TO: 1. THE ASSESSEE 2. THE ASSESSING OFFICER 3. THE COMMISSIONER OF INCOME-TAX 4. COMMISSIONER OF INCOME-TAX(A) 5. DR 6. GF, ITAT, BANGALORE BY ORDER SENIOR PRIVATE SECRETARY