Deputy Commissioner of Income Tax, International Taxation- Circle -2(2), Bangalore V. Wipro Limited, Bangalore

MA 27/BANG/2021

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0913 (ITAT-BANGALORE)
• Duration Of Justice: 4 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-07-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 01-03-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R PREMI
• Assessee Lawyers: P V SRINIVASAN
• Section: 201(1); 254(2)

Judgement Text

MPNO.27/BANG/2021 WIPRO LTD., BANGALORE IN THE INCOME TAX APPELLATE TRIBUNAL CBENCH: BANGALORE BEFORE SHRI B. R. BASKARAN, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER M.P. NO.27/BANG/2021 (ARISING OUT OF ITA NO.581/BANG/2019 ASSESSMENTYEAR: 2010-11 DEPUTY COMMISSIONER OF INCOME-TAX CIRCLE 2(1) BENGALURU VS. M/S. WIPRO LTD. 76P & 80P, DODDAKANELLI SARJAPUR ROAD BENGALURU 560 035. PAN NO :AAACW0387R APPELLANT RESPONDENT APPELLANT BY : SMT. R. PREMI, D.R. RESPONDENT BY : SHRI P.V. SRINIVASAN, A.R. DATE OF HEARING : 02.07.2021 DATE OF PRONOUNCEMENT : 12.07.2021 O R D E R PERB.R. BASKARAN, ACCOUNTANT MEMBER: THE REVENUE HAS FILED THIS APPEAL SEEKING RECALL OF ORDER DATED 15.10.2020 PASSED BY THE TRIBUNAL IN ITA NUMBER CIT ED ABOVE. 2. THE MISCELLANEOUS PETITION FILED BY THE REVENUE READS AS UNDER: 1. THE APPELLANT M/S WIPRO LTD. HAD FILED AN APPEA L AGAINST THE ORDER PASSED U/S 201(1) &(1A) OF THE INCOME TAX ACT,1961 IN RESPECT OF PAYMENTS MADE TO M/S GARTNER GROUP. 2. IN THE PRESENT APPEAL THE HON'BLE TRIBUNAL PLACE D RELIANCE ON THE DECISIONS OF THE CO-ORDINATE BENCH IN THE CASE OF M /S ACER INDIA PVT. MP NO.27/BANG/2021 WIPRO LTD., BANGALORE PAGE 2 OF 4 LTD. V/S DCIT IN IT(IT)A NO. 107 TO 114/BANG/2018 D ATED 05.10.2020 (PAGE 4 OF THE ORDER) AND IN THE CASE OF ALLEGIS SE RVICE INDIA PVT. LTD. IN ITA NO. IT(TP)A NO. 1370/BANG/2014 DATED 15.09.2017 (PAGE 7 OF THE ORDER). 3. HOWEVER, SUBSEQUENTLY THE HON'BLE ITAT IN THE CA SE OF M/S ALLEGIS SERVICE INDIA LTD. FOR THE A.Y. 2011-12 IN ITA NO. 325/BANG/2018 (ORDER DATED 13.06.2018) HELD THAT THE CASE DOES NOT FALL WITHIN THE FOUR CORNERS OF DOCTRINE OF IMPOSSIBILITY OF PERFORMANCE. THEREF ORE, THIS DECISION OF THE CO-ORDINATE BENCH OUTLINING. THE DOCTRINE OF IM POSSIBILITY HAS NOT BEEN CONSIDERED BY THE HON'BLE TRIBUNAL WHILE PASSI NG THE IMPUGNED ORDER. 4. SINCE NON CONSIDERATION OF DECISION OF A CO-ORDI NATE BENCH IS A MISTAKE APPARENT FROM THE RECORD, IT IS PRAYED THAT THE TRIBUNAL BE PLEASED TO RECALL THE APPEAL U/S 254(2) OF THE INCOME TAX ACT, 1961 AND DECIDE T HE SAID APPEAL IN THE LIGHT OF THE DECISION IN THE M/S ALLEGIS SERVICE IN DIA LTD. FOR THE A.Y. 2011-12 IN ITA NO. 325/BANG/2018. 5. THE CERTIFIED COPY OF THE ORDER HAS NOT BEEN RECEIV ED IN THE OFFICE OF COMMISSIONER OF THE INCOME TAX (IT) BENGA LURU AND THIS MISCELLANEOUS PETITION IS BEING PREFERRED ON T HE BASIS OF THE ORDER AVAILABLE ON THE ITAT WEBSITE. 3. THE LD. D.R. SUBMITTED THAT THE TRIBUNAL HAS NOT CONSIDERED THE DECISION RENDERED IN THE CASE OF ALLEGIS SERVIC E INDIA LTD. FOR ASSESSMENT YEAR 2011-12 (SUPRA) AND THE SAME CONSTI TUTES MISTAKE APPARENT FROM RECORD. 4. ON THE CONTRARY, THE LD. A.R. OPPOSED THE PETITI ON FILED BY THE REVENUE AND SUBMITTED THAT, FIRST OF ALL, THE DECIS ION RENDERED IN THE CASE OF ALLEGIS SERVICE INDIA LTD. FOR THE ASSESSME NT YEAR 2011-12 WAS NOT CITED BEFORE THE TRIBUNAL AT THE TIME OF HE ARING. SECONDLY, THE TRIBUNAL HAS FOLLOWED DECISION RENDERED BY THE CO-ORDINATE BENCH IN THE CASE OF M/S. ACER INDIA PVT. LTD. {IT( IT)A NO.107 TO 114/BANG/2018 DATED 5.10.2020} IN DECIDING THE ISSU E IN FAVOUR OF THE ASSESSEE. THE COORDINATE BENCH IN THE CASE OF M/S. ACER INDIA MP NO.27/BANG/2021 WIPRO LTD., BANGALORE PAGE 3 OF 4 PVT. LTD. (SUPRA) HAS FOLLOWED VARIOUS DECISIONS RE NDERED BY BANGALORE BENCH OF TRIBUNAL AND OTHER BENCHES OF TR IBUNAL. ACCORDINGLY, THE LD. A.R. SUBMITTED THAT THE TRIBUN AL HAS FOLLOWED ONE OF THE PLAUSIBLE VIEWS IN RESPECT OF THE ISSUES URGED BEFORE THE TRIBUNAL AND HENCE, THE SAME SHALL NOT CONSTITUTE M ISTAKE APPARENT FROM RECORD. 5. WE HEARD THE PARTIES AND PERUSED THE RECORD. AS RIGHTLY POINTED OUT BY LD. A.R., THE DECISION RENDERED IN T HE CASE OF M/S. ALLEGIS SERVICE INDIA LTD. FOR ASSESSMENT YEAR 2011 -12 WAS NOT CITED BEFORE THE TRIBUNAL AT THE TIME OF HEARING OF THE A PPEAL. IN ANY CASE, THE TRIBUNAL HAS FOLLOWED THE DECISION RENDER ED IN OTHER CASE ON A SIMILAR ISSUE AND HENCE, THE VIEW TAKEN BY THE TRIBUNAL IS ONE OF THE POSSIBLE VIEWS. HENCE, IT CANNOT BE SAID TH AT THERE IS A MISTAKE APPARENT FROM RECORD IN THE ORDER PASSED BY THE TRIBUNAL. ACCORDINGLY, WE DO NOT FIND ANY MERIT IN THE PETITI ON FILED BY THE REVENUE. 6. IN THE RESULT, THIS MISCELLANEOUS APPLICATION FI LED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH JUL, 2021 SD/- (BEENA PILLAI) JUDICIAL MEMBER SD/- (B.R. BASKARAN) ACCOUNTANT MEMBER BANGALORE, DATED 12 TH JUL, 2021. VG/SPS MP NO.27/BANG/2021 WIPRO LTD., BANGALORE PAGE 4 OF 4 COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, BANGALORE.