The ACIT.,Range-1, Ahmedabad V. Bisazza India Limited, Mehsana

MA 3/AHD/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 5374 (ITAT-AHMEDABAD)
• Duration Of Justice: 11 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-01-2022
• Appeal Filed By: Department
• Order Result: PartlyAllowed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 26-01-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: UMESH KUMAR AGARWAL
• Section: 144C; 254(2)

Judgement Text

आयकर अपीलीय अिधकरण, अहमदाबाद ᭠यायपीठ IN THE INCOME TAX APPELLATE TRIBUNAL, ‘’ D’’ BENCH, AHMEDABAD (CONDUCTED THROUGH VIRTUAL COURT AT AHMEDABAD) BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER And Ms MADHUMITA ROY, JUDICIAL MEMBER, M.A No.02/Ahd/2021 In आयकर अपील सं./In ITA No. 605/Ahd/2016 िनधाᭅरण वषᭅ/Asstt. Year: 2009-2010 And M.A No.03/Ahd/2021 In आयकर अपील सं./In ITA No.2693/Ahd/2011 िनधाᭅरण वषᭅ/Asstt. Year: 2007-2008 D.C.I.T., Circle 1(1)(1), Ahmedabad. Vs. M/s. Bissaza India Pvt. Ltd., Survey No.372/2, Budasan, Nr. Gali and GIDC Office, Ahmedabad. PAN: AAACB6284G (Applicant) (Respondent) Revenue by : Shri Umesh Kumar Agarwal, Sr.D.R Assessee by : Shri S.N. Soparkar, Sr. Advocate सुनवाई कᳱ तारीख/Date of Hearing : 03/12/2021 घोषणा कᳱ तारीख /Date of Pronouncement: 13/01/2022 PER WASEEM AHMED, ACCOUNTANT MEMBER: M.A Nos.02-03/AHD/2021 In ITA Nos.605 & 2693/Ahd/2016 & 2011 Asstt. Years 2009-10 & 2007-08 2 M.A No.02/Ahd/2021 (in ITA No.605/Ahd/2016) for A.Y. 2009-10. The Revenue has filed miscellaneous application pointing out typographical error, apparent from the record, crept in on the first page of the order of ITAT order dated 12/03/2020 mentioning the incorrect Assessment Year. 2. It is pleaded in the application that at page no. 1 in Revenue’s appeal bearing ITA No. 605/AHD/2016, the Assessment Year has been wrongly mentioned as 2007-08 instead of 2009-10. Thus, the error crept in the order at page No. 1 stands rectified and may be read as “ITA No. 605/Ahd/2016 for Assessment Year 2009-10”. 3. In the result, the Miscellaneous Application filed by the Revenue is allowed. Now coming to the M.A No. 03/Ahd/2021 (in ITA No.2693/Ahd/2011) for A.Y. 2007-08. 4. The revenue by way of this Miscellaneous Application is seeking to recall the order passed by Tribunal dated 12/03/2020 on the reasoning that there is a mistake Apparent from the record. 5. The TPO in the present case dis-regarded the computation determining Arm Length Price (ALP) adopted by the assessee based on Transactional Net Margin Method and applied Comparable Uncontrolled Price (CUP) method as the most appropriate method for determining the ALP. Thus, the TPO made upward adjustment for the amount of Rs. 4,16,71,708/- in the Assessment framed u/s 143(3) r.w.s. 144C of the Act, dated 18/03/2013, which was partly confirmed by the Ld. CIT(A). M.A Nos.02-03/AHD/2021 In ITA Nos.605 & 2693/Ahd/2016 & 2011 Asstt. Years 2009-10 & 2007-08 3 6. Against the order of the Ld. CIT(A) both the Assessee and the Revenue were in appeal before the ITAT. 7. The ITAT restored the issue to the file of the TPO/AO for fresh computation of ALP by using TNMM method. The ITAT by doing so has relied on the decision of this “Co-ordinate Bench” in the case of Pino Bisazza Glass Pvt. Ltd. in ITA No. 2857/Ahd/2012 dated 03/10/2015. However, the Department challenged the order of the ITAT in the case of sister concern of the assessee by preferring an appeal to the Hon’ble Gujarat High Court vide Tax Appeal No. 403 of 2016 which came to be admitted but pending for adjudication. Based on the above, the Ld. DR appearing for the Revenue contended that no reference can be made by the ITAT to the order of sister concern namely Pino Bisazza glass Pvt. Ltd. (supra) as the same has been challenged before the Hon’ble Gujarat High Court. Thus the Ld. DR, prayed to recall the order passed by the ITAT in the present case. 8. On the contrary, the Ld. AR contended that the order passed by this tribunal in the case of assessee’s sister concern was not stayed by the Hon’ble Gujarat High Court. Accordingly, the order of the co-ordinate bench in the case of the sister concern of the assessee in binding on the Tribunal. Therefore, there is no mistake apparent from record as alleged by the Revenue. 9. We have heard the rival contention of both the parties and perused the materials available on record. The provisions of section 254(2) of the Act are limited to the extent of the mistake which are apparent from record. However, the order challenged by the Revenue in the case of assessee’s sister concern before the Hon’ble Gujarat High Court cannot be read as mistake apparent from record. It is for the reason that the appeal admitted by the Hon’ble High Court is pending for the adjudication and there was no stay order of the Hon’ble High Court. Therefore, we are not in agreement with the contention of the Ld. DR. Hence, the ground raised by the revenue in the Miscellaneous Application is rejected. M.A Nos.02-03/AHD/2021 In ITA Nos.605 & 2693/Ahd/2016 & 2011 Asstt. Years 2009-10 & 2007-08 4 10. The second grievance of the Revenue is that ITAT in its order in the cause title inadvertently has mentioned ITA No. 2691/Ahd/2011 whereas the correct ITA No. is 2693/Ahd/2011. Thus, the Ld. D.R prayed before us to rectify the mistake apparent from the record by correcting the ITA No. in the cause title. 11. On perusal of the ITAT order we find that ITA No. has been inadvertently mentioned as 2691/Ahd/2011 in place of 2693/Ahd/2011. To this extent the order is modified which shall be read as under: “ITA No.2693/Ahd/2011” 12. In view of the above, the Miscellaneous Application filed by the Revenue is partly allowed. 13. In the results, the Miscellaneous Applications filed by the Revenue bearing No.02/Ahd/2021 (ITA No.605/Ahd/2016) for A.Y.2009-10 is allowed whereas No.03/Ahd/2021(in ITA No.2693/Ahd/2011) for A.Y. 2007-08 is partly allowed. Order pronounced in the Court on 13/01/2022 at Ahmedabad. Sd/- Sd/- (MADHUMITA ROY) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER (True Copy) Ahmedabad; Dated 13/01/2022 Manish