Appeal details
Counselvise Citation
[2018] 124 COUNSELVISE.COM (IT) 6421 (ITAT-BANGALORE)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
3 month(s) 24 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
06-04-2018
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
B
Assessment Year
misc
Appeal Filed On
13-12-2017
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER A ND SHRI LALIET KUMAR, JUDICIAL MEMBER M.P. NO. ITA NO. APPELLANT VS. RESPONDENT ASSESSMENT YEAR M.P. NO. 314/BANG/2017 IT(TP)A NO. 1561/BANG/2012 M/S. TARGET CORPORATION INDIA PVT. LTD. C-2, MANYATA EMBASSY BUSINESS PARK SEZ UNIT, NAGAWARAHOBLI, OUTER RING ROAD, HEBBAL, BANGALORE 560 045. PAN:AAECA8990N THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 12(4), BANGALORE. 2007-08 M.P. NO. 315/BANG/2017 IT(TP)A NO. 1562/BANG/2012 THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 4 (1)(1), BANGALORE. 2008-09 M.P. NOS. 316 & 317/BANG/2017 IT(TP)A NOS. 184 & 228/BANG/2014 THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 12(4), BANGALORE. 2009-10 APPELLANT BY : SHRI K.R. VASUDEVAN, ADVOCATE RESPONDENT BY : SMT. PADMA MEENAKSHI, JCIT (DR) DATE OF HEARING : 16 . 0 3 .2018 DATE OF PRONOUNCEMENT : 06.04 .201 8 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER ALL THESE FOUR M.PS. ARE FILED BY THE ASSESSEE IN W HICH IT IS STATED THAT THERE ARE CERTAIN APPARENT MISTAKES IN THE IMPUGNED COMBINED TRIBUNAL ORDERS DATED 09.06.017 AND 31.08.2017. 2. FIRST WE TAKE UP THE TWO M.PS. IN M.P. NOS. 314 & 315/BANG/2017 OF ASSESSEE BECAUSE IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT THESE TWO M.PS. ARE IN RESPECT OF THE COMBINED TRIBUNAL ORDER DATED 09.06. 2017. IT WAS SUBMITTED BY LD. AR OF ASSESSEE IN THE COURSE OF HEARING BEFORE US THAT AS PER PARAS 6 AND 7 OF THESE TWO M.PS., THIS IS THE CONTENTION OF THE A SSESSEE THAT IN VIEW OF THIS CLEAR FINDING OF THE TRIBUNAL THAT THE DIRECTION OF DRP IS VERY CRYPTIC, THE MATTER SHOULD HAVE BEEN RESTORED BACK TO THE FILE OF DRP A ND NOT TO FILE OF AO/TPO. M.P. NOS. 314 TO 317/BANG/2017 (IN IT(TP)A NOS. 1561& 1562/BANG/2012 & IT(TP)A NOS. 184 & 228/BANG/2014) PAGE 2 OF 5 AS PER THE ASSESSEE, THIS IS AN APPARENT MISTAKE IN THIS COMBINED TRIBUNAL ORDER DATED 09.06.2017. IN REPLY, IT WAS SUBMITTED BY LD. DR OF REVENUE THAT AS PER THE TRIBUNAL ORDER IN M.P. NO. 20/BANG/2018 DAT ED 06.03.2018 IN CASE OF IBM INDIA PVT. LTD. VS. ADDL. CIT, IT WAS HELD BY T RIBUNAL THAT EVEN IF THIS IS THE FINDING OF THE TRIBUNAL THAT THE ORDER OF DRP IS CR YPTIC, IT IS NOT NECESSARY THAT IN ALL SUCH CASES, THE MATTER HAS TO BE RESTORED BACK TO THE FILE OF DRP AND NOT TO AO/TPO AND THEREFORE, IN A GIVEN CASE, IF THE MATTE R MAY IS RESTORED BACK TO THE FILE OF AO/TPO, THERE IS NO APPARENT MISTAKE IN THE TRIBUNAL ORDER. HE SUBMITTED COPY OF THIS TRIBUNAL ORDER. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. FIRST OF ALL, WE REPRODUCE PARA NO. 3 OF THE TRIBUNAL ORDER IN THE CASE OF IBM INDIA PVT. LTD. VS. ADDL. CIT (SUPRA). THE SAME IS AS UNDER. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE HAVIN G GRIEVANCE AGAINST THE ASSESSMENT ORDER PASSED BY THE AO U/S. 143(3) R.W.S. 144C OF THE IT ACT AS PER THE DIRECTIONS OF THE DRP. IT IS TRUE THAT IN VIEW OF THE RELEVANT PARA OF THE DRP ORDER REPRODUCED BY TH E TRIBUNAL IN THE IMPUGNED ORDER, THIS IS THE FINDING OF THE TRIBUNAL THAT AS AGAINST ASSESSEES OBJECTIONS FOR INCLUSION/EXCLUSION OF SE VERAL COMPARABLE COMPANIES SUCH AS KALS INFORMATION SYSTEMS LTD., PE RSISTENT SYSTEMS LTD. TATA ELXSI LTD., BODHTREE CONSULTING LTD., ACC EL TRANSMATIC LTD., FLEXTRONICS SOFTWARE SYSTEMS LTD. IN ADDITION TO IN FOSYS LTD. AND MEGASOFT LTD., THE DRP HAS TOOK UP ONLY TWO NAMES I .E. INFOSYS LTD. AND MEGASOFT LTD. FOR ITS ENTIRE DISCUSSION AND DEC ISION. THIS IS ALSO NOTED BY THE TRIBUNAL IN PARA NO. 5 OF ITS ORDER TH AT IN THE OBJECTIONS RAISED BY THE ASSESSEE BEFORE THE DRP REPRODUCED BY THE TRIBUNAL IN ITS IMPUGNED ORDER, NO NAME OF ANY COMPARABLE IS ME NTIONED BUT STILL THE DRP HAS PICKED UP ONLY TWO NAMES I.E. INFOSYS L TD. AND MEGASOFT LTD. CONSIDERING ALL THESE FACTS OF THE PRESENT CA SE, THE TRIBUNAL DECIDED TO RESTORE THE MATTER BACK TO THE FILE OF A O FOR FRESH DECISION BY WAY OF A SPEAKING AND REASONED ORDER. IN THE CA SE OF M/S. EQUANT SOLUTIONS INDIA PVT. LTD. VS. ACIT (SUPRA) CITED BE FORE US BY LD. AR OF ASSESSEE, THE MATTER WAS RESTORED BACK BY THE TRIBU NAL TO THE FILE OF DRP FOR FRESH DECISION FOR PASSING A SPEAKING AND R EASONED ORDER IN RESPECT OF THE GROUNDS RAISED BEFORE IT BUT THIS IS NOT A RATIO OF THIS TRIBUNAL ORDER THAT IN ALL THE CASES WHERE ORDER OF DRP IS CRYPTIC, THE MATTER SHOULD BE REMANDED BACK TO THE FILE OF DRP O NLY AND NOT TO AO / TPO. HENCE THIS JUDGMENT DOES NOT HELP THE ASSES SEE IN SUPPORT OF ITS CONTENTION THAT THERE IS APPARENT MISTAKE IN TH E TRIBUNAL ORDER M.P. NOS. 314 TO 317/BANG/2017 (IN IT(TP)A NOS. 1561& 1562/BANG/2012 & IT(TP)A NOS. 184 & 228/BANG/2014) PAGE 3 OF 5 BECAUSE THE MATTER WAS NOT RESTORED BACK TO THE FIL E OF DRP BUT WAS RESTORED BACK TO THE FILE OF AO. CONSIDERING THESE FACTS ALONG WITH THE ENTIRE FACTS OF THE PRESENT CASE, WE FIND THAT THER E IS NO APPARENT MISTAKE IN THE TRIBUNAL ORDER WHICH CAN BE RECTIFIE D U/S. 254(2) OF THE IT ACT. 4. FROM THE ABOVE PARA OF THE TRIBUNAL ORDER, IT IS SEEN THAT THIS CANNOT BE SAID THAT THERE IS AN APPARENT MISTAKE IN THE TRIBUNAL O RDER ONLY BECAUSE THE MATTER IS RESTORED BACK TO THE FILE OF AO/TPO AFTER GIVING THIS FINDING THAT THE DIRECTION OF DRP IS CRYPTIC. HENCE, WE HOLD THAT THERE IS NO APPARENT MISTAKE IN THE TRIBUNAL ORDER DATED 09.06.2017. HENCE M.P. NOS. 3 14 & 315/BANG/2017 ARE DISMISSED. 5. REGARDING THE REMAINING TWO M.PS. I.E. M.P. NOS. 316 & 317/BANG/2017, IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT IN PARA 5 OF T HESE TWO M.PS. IT IS STATED BY ASSESSEE THAT THIS WAS THE CASE OF THE ASSESSEE BEF ORE THE TRIBUNAL THAT CERTAIN COMPARABLE COMPANIES (BODHTREE CONSULTING L TD., TATA ELXSI LTD., PERSISTENT SYSTEMSLTD. AND INFOSYS LTD.) SELECTED B Y LD. TPO FOR IT SEGMENT SHOULD BE EXCLUDED BY RELYING ON THE OTHER ORDER PA SSED IN THE CASE OF INFINERA INDIA PVT. LTD. VS. ITO IN IT(TP)A NO. 977/BANG/201 4. HE ALSO STATED IN THE SAME PARA OF M.P. THAT TRIBUNAL HAS REPRODUCED CERT AIN PARAS FROM THE TRIBUNAL ORDER IN INFINERAS CASE WHEREIN THE DECISION TO RE JECT THE ABOVE MENTIONED COMPANIES AND THE REASONS BEHIND THE SAME IS PROVID ED BY THE TRIBUNAL. FURTHER THE TRIBUNAL HAS MENTIONED THAT THE LD. DR OF REVENUE HAS NOT POINTED OUT ANY DIFFERENCE IN FACTS BETWEEN THE PRESENT CAS E OF THE ASSESSEE AND THAT OF THE CASE LAW RELIED UPON BY THE ASSESSEE. THERE AFTER IN COURSE OF HEARING OF M.P., IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT IN PARA 13 OF THE IMPUGNED TRIBUNAL ORDER, IT IS NOTED THAT THE LD. DR OF REVE NUE COULD NOT POINT OUT ANY DIFFERENCE IN FACTS AND THEREFORE, THE TRIBUNAL HAS FOLLOWED THIS TRIBUNAL ORDER BUT WHILE GIVING THE FINAL FINDING, THE TRIBUNAL HA S DECIDED THAT NO INTERFERENCE IS CALLED FOR IN THE ORDER OF DRP REGARDING EXCLUSION OF FOUR COMPARABLES IN RESPECT OF IT SEGMENT BUT REGARDING EXCLUSION OF FO UR COMPARABLES IN ITES SEGMENT, THE TRIBUNAL APPROVED THE EXCLUSION OF FOU R COMPARABLES AS M.P. NOS. 314 TO 317/BANG/2017 (IN IT(TP)A NOS. 1561& 1562/BANG/2012 & IT(TP)A NOS. 184 & 228/BANG/2014) PAGE 4 OF 5 REQUESTED BY THE ASSESSEE. HE SUBMITTED THAT WHEN THE TRIBUNAL HAS FOLLOWED THE OTHER TRIBUNAL ORDERS AS PER WHICH EXCLUSION OF THESE FOUR COMPARABLES OF ITES SEGMENT ARE APPROVED BUT THERE IS APPARENT MIS TAKE IN THE FINDING OF TRIBUNAL ORDER REGARDING HOLDING THAT NO INTERFEREN CE IS CALLED FOR IN THE ORDER OF DRP REGARDING EXCLUSION OF FOUR COMPARABLES IN RESP ECT OF IT SEGMENT AND IT SHOULD BE RECTIFIED. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT REGARDING EXCLUSION OF FOUR COMPARABLES IN IT SEGMENT I.E. BODHTREE CONSUL TING LTD., TATA ELXSI LTD., PERSISTENT SYSTEMS LTD., INFOSYS LTD., IT IS NOTED BY THE TRIBUNAL THAT. AS PER TRIBUNAL ORDER RENDERED IN THE CASE OF INFINERA IND IA PVT. LTD. VS. ITO, AS REPORTED IN 72 TAXMANN.COM 68 THE RELEVANT PORTION OF WHICH HAS BEEN REPRODUCED ON PAGES 7 TO 12 OF THE IMPUGNED TRIBUNA L ORDER THAT AS PER THIS TRIBUNAL ORDER, THESE FOUR COMPARABLES ARE EXCLUDED AND LEARNED DR OF THE REVENUE COULD NOT POINT OUT ANY DIFFERENCE IN FACTS BUT THEREAFTER, THE TRIBUNAL DISCUSSED REGARDING COMPARABLES OF ITES SEGMENT WIT HOUT GIVING FINAL FINDING IN RESPECT OF IT SEGMENT AND IN PARA 13 OF THE IMPU GNED TRIBUNAL ORDER ON PAGE 21, THE TRIBUNAL HAS STATED THAT THE TRIBUNAL DECLINES TO INTERFERE IN THE ORDER OF DRP IN RESPECT OF EXCLUSION OF FOUR COMPAR ABLES OF IT SEGMENT. WE FIND THAT THERE IS APPARENT MISTAKE IN THIS PARA OF TRIBUNAL ORDER AND HENCE, WE RECTIFY THE SAME. THIS PARA 13 OF IMPUGNED TRIBUNA L ORDER SHOULD BE READ AS UNDER. LEARNED DR OF THE REVENUE COULD NOT POINT OUT ANY D IFFERENCE IN FACTS. THEREFORE, RESPECTFULLY FOLLOWING THESE TWO TRIBUNAL ORDERS, WE HOLD THAT THE FOUR COMPARABLES I.E. 1) BODHTREE CONSULTING LTD., 2) TATA ELXSI LTD., 3) PERSISTENT SYSTEMS LTD. AND 4) INFOSYS LTD. IN IT SEGMENT SHOULD BE EXCLUDED FROM THE FINAL LIST O F COMPARABLES OF IT SEGMENT AND IN ITES SEGMENT, WE UPHOLD THE EXCLU SION OF 1) ACCENTIA TECHNOLOGIES LTD., 2) INFOSYS BPO LTD., 3) COSMIC GLOBAL LTD. AND 4) ECLERX SERVICES LTD. REMAINING GROUNDS ON TP ISSUES ARE REJECTED AS NOT PRESSED AS NO ARGUMENT WAS ADVA NCED ON THAT ACCOUNT. 7. IN THE RESULT, THESE TWO M.PS. OF THE ASSESSEE I N M.P. NOS. 316 & 317/BANG/2017 ARE ALLOWED. M.P. NOS. 314 TO 317/BANG/2017 (IN IT(TP)A NOS. 1561& 1562/BANG/2012 & IT(TP)A NOS. 184 & 228/BANG/2014) PAGE 5 OF 5 8. IN THE COMBINED RESULT, THE M.PS. FILED BY THE A SSESSEE IN M.P. NOS. 314 & 315/BANG/2017 ARE DISMISSED AND IN M.P. NOS. 316 & 317/BANG/2017 ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- SD/- (LALIET KUMAR) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 06 TH APRIL, 2018. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.
