M/s Brocade Communications Systems Pvt Ltd , Bangalore V. Deputy Commissioner of Income TAx Circle-1(1)(2), Bangalore

MA 39/BANG/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2624 (ITAT-BANGALORE)
• Duration Of Justice: 3 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 05-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR SHANKAR PRASAD
• Assessee Lawyers: T SURYANARAYANA
• Keywords: Transfer pricing; Reasonable cause; Bonafide mistake

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, BANGALORE BEFORE SHRI. N. V. VASUDEVAN, VICE PRESIDENCE AND SHRI. JASON P. BOAZ, ACCOUNTANT MEMBER [MP NO. 39/BANG/2019 (IN IT (TP) A NO. 2495 /B ANG /201 7 )] (ASSESSMENT YEAR: 20 1 3 - 1 4 ) M/S. BROCADE COMMUNICATIONS SYSTEMS PVT. LTD., FLOOR 3, B AND C WING AND FLOOR 8, D WING, S1, WIPRO ELECTRONIC CITY SPECIAL ECONOMIC ZONE, DODDATHOGUR VILLAGE BEGUR HOBLI, ELECTRONIC CITY, BENGALURU-560095. PAN: AACCB4490N APPLICANT VS. DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-1(1)(2), BENGALURU. RESPONDENT APPLICANT BY : SHRI. T. SURYANARAYANA , A DVOCATE REVENUE BY : DR. SHANKAR PRASAD , ADDL. CIT O R D E R PER JASON P. BOAZ, AM : THIS MISCELLANEOUS APPLICATION (MP) IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE TRIBUNAL IN IT(TP)A NO.2495/BANG/2017 DATED 19.12.2018, WHEREBY THE APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2010-11 WAS DISMISSED ON ACCOUNT OF NON-PROSECUTION ON BEHALF OF ASSESSEE. THROUGH THIS MISCELLANEOUS APPLICATION, THE LEARNED COUNSEL FOR THE ASSESSEE HAS EXPLAINED THE REASONS FOR THE NON- APPEARANCE ON THE DATE FIXED I.E., 19.12.2018 IN ITS PETITION AS UNDER:- DATE OF HEARING : 1 4 / 0 6 /201 9 DATE OF PRONOUNCEMENT : 14 / 0 6 /201 9 MP NO. 39/BANG/2019 (IN IT(TP)A NO.2495/BANG/2017) PAGE 2 OF 4 3. THE APPLICANT FILED ITS RETURN OF INCOME AY 2013-14 ON NOVEMBER 30, 2013. THE CASE WAS REFERRED TO THE LD. TRANSFER PRICING OFFICER ('LD. TPO') U/S 92CA OF THE INCOME TAX ACT, 1961 ('THE ACT'). SUBSEQUENT TO RECEIPT OF DRAFT ASSESSMENT ORDER, THE APPLICANT FILED OBJECTIONS BEFORE THE HON'BLE DRP. THE HON'BLE DRP PROVIDED PARTIAL RELIEF VIDE ITS DIRECTIONS DATED 22.08.2017. THE FINAL ASSESSMENT ORDER DATED 25.09.2017 WAS ISSUED BY THE LD. ASSESSING OFFICER PURSUANT TO WHICH THE APPLICANT HAD FILED AN APPEAL BEFORE THE HON'BLE INCOME TAX APPELLATE TRIBUNAL ('HON'BLE ITAT') ON NOVEMBER 24, 2017. THE APPEAL WAS FILED WITH THE ADDRESS AT THAT TIME WHICH WAS SURVEY NO. 34/1 ,4TH FLOOR, 'AMBER' BUILDING, BAGMANE DEVELOPERS PVT. LTD SEZ, BAGMANE WORLD TECHNOLOGY CENTER, MAHADEVAPURA, K. R. PURAM HOBLI, BANGALORE - 560 037 ('APPLICANT'S OLD ADDRESS'). 4. IN THE MEANWHILE, THE OFFICE ADDRESS OF THE APPLICANT WAS CHANGED TO FLOOR 3, B AND C WING AND FLOOR 8, D WING, S1, WIPRO ELECTRONIC CITY SPECIAL ECONOMIC ZONE, DODDATHOGU VILLAGE BEGUR HOBLI ELECTRONIC CITY, BANGALORE-560100('APPLICANT'S PRESENT ADDRESS') WITH EFFECT FROM 29 JUNE, 2018. THE COPY OF FORM INC 22 FILED WITH MINISTRY OF FINANCE FOR CHANGE OF ADDRESS IS ENCLOSED VIDE ANNEXURE 1. HOWEVER, THE APPLICANT INADVERTENTLY FAILED TO FILE REVISED FORM 36 REFLECTING THE CHANGE OF ADDRESS. CONSEQUENTLY, THE NOTICES OF HEARING ISSUED BY THIS HON'BLE TRIBUNAL WERE NOT RECEIVED BY THE APPLICANT. 5. WHILE SO, WHILE PREPARING FOR THE HEARING OF THE APPLICANT'S CASES FOR SUBSEQUENT ASSESSMENT YEARS, THE APPLICANT'S COUNSEL SOUGHT TO KNOW THE STATUS OF THE APPEAL FOR AY 2013-14 AND SUGGESTED THAT THE APPEAL WAS BOUND TO HAVE COME UP FOR HEARING ALREADY. IMMEDIATELY, THE APPLICANT CHECKED THE STATUS OF THE CAPTIONED APPEAL ON THE ITAT WEBSITE ON 13 FEBRUARY, 2019 AND OBSERVED THAT THE APPEAL HAS BEEN DISMISSED VIDE ORDER DATED 19 DECEMBER, 2018. THE APPLICANT DOWNLOADED THE ORDER FROM ITAT WEBSITE AND OBSERVED THAT THE NOTICES ISSUED TO THE APPLICANT HAD NOT BEEN SERVED BUT RETURNED WITH THE ENDORSEMENT 'LEFT'. COPY OF THE ITAT ORDER IS ENCLOSED VIDE ANNEXURE 2. IT CAN BE FAIRLY ASSUMED THAT THE NOTICE FOR THE HEARING WAS ALSO SENT TO THE APPLICANT'S OLD ADDRESS. 6. AS SOON AS THE APPLICANT GOT THIS INFORMATION, IT IMMEDIATELY STARTED PROCESS FOR FILING OF THE PRESENT MISCELLANEOUS APPLICATION BEFORE YOUR HONOURS FOR RESTORATION OF APPEAL. MP NO. 39/BANG/2019 (IN IT(TP)A NO.2495/BANG/2017) PAGE 3 OF 4 7 IN THE ORDER IT IS STATED THAT: 'AT THE TIME OF HEARING OF THE APPEAL TODAY I.E. 19.12.2018, NONE APPEARED ON BEHALF OF THE ASSESSEE. EVEN THE NOTICE OF THE APPEAL INTIMATING HEARING FOR THIS DATE ISSUED BY RPAD HAS BEEN RETURNED UNSERVED WITH THE COMMENT 'LEFT'. WE ALSO FIND THAT THERE IN NEITHER ANY APPEARANCE NOR ANY COMMUNICATION FROM THE ASSESSEE' S SIDE 3. CONSIDERING THE TOTALITY OF THE FACTS, WE ARE, THUS LEFT WITH NO OPTION BUT TO INFER THAT THE ASSESSE IS NOT INTERESTED IN PROSECUTING THE APPEAL... WE TREAT THE APPEAL AS UNADMITTED AND DISMISS THE APPEAL IN LIMINE FOR WANT OF PROSECUTION OF THE CASE. THE ASSESSEE IS, HOWEVER, AT LIBERTY TO MOVE THE TRIBUNAL SHOWING OUT SUFFICIENT REASON(S) AND/OR REASONABLE CAUSE FOR FAILURE TO PROSECUTE THE CASE ON HIS/HER/ITS BEHALF'. 8. THE APPLICANT HUMBLY SUBMITS THAT THE FAILURE TO APPEAR BEFORE THE HON'BLE BENCH FOR THE HEARING ON 19 DECEMBER, 2018 IS DUE TO THE FACT THAT IT WAS NOT AWARE OF THE HEARING SINCE THE NOTICE WAS SENT TO THE APPLICANT'S OLD ADDRESS WHICH WAS VACATED BY APPLICANT IN JUNE, 2018. THE APPLICANT SUBMITS THE NON-INTIMATION OF THE NEW ADDRESS WAS DUE TO A BONAFIDE MISTAKE AND OVERSIGHT. THE APPLICANT RECOGNISES ITS INADVERTENT MISTAKE AND SINCERELY REGRETS THE OMISSION OF FILING THE REVISED FORM 36 TO INTIMATE CHANGE OF ADDRESS. 9. THE APPLICANT HEREBY PRAYS FOR THE CONDONATION OF ITS OMISSION TO INTIMATE THE CHANGE OF ADDRESS WHICH WAS INADVERTENT AND NOT INTENTIONAL OR MALAFIDE. THE APPLICANT IS SERIOUS ABOUT SEEKING JUSTICE WITH RESPECT TO THIS APPEAL AND ALSO HAS APPEALS FOR OTHER ASSESSMENT YEARS BEFORE THE HON'BLE ITAT. THEREFORE, IT IS PRAYED THAT NON-APPEARANCE ON 19.12.2018 SHOULD NOT BE VIEWED AS A DELIBERATE OR A MALAFIDE ATTEMPT ON THE PART OF THE APPLICANT TO DISREGARD THE PROCESS OF THE HON'BLE ITAT. THE APPLICANT MAKES FURTHER PRAYER TO THE HON'BLE ITAT TO NOT DENY JUSTICE BY NOT RESTORING THE SAID APPEAL. 10. IN VIEW OF THE ABOVE, THE APPLICANT IS FILING THE PRESENT APPLICATION UNDER SECTION 254(2) OF THE ACT BEFORE THIS HON'BLE TRIBUNAL SEEKING SETTING ASIDE OF THE HON'BLE ITAT ORDER DATED 19 DECEMBER, 2018 AND RESTORATION OF APPEAL IT(TP) A NO. 2495/BANG/2017. 11. IT IS SUBMITTED THAT IF THE PRESENT APPLICATION IS ALLOWED, NO HARDSHIP OR PREJUDICE WILL BE CAUSED TO THE RESPONDENT. ON THE OTHER _ GRAVE INJURY AND HARDSHIP WILL BE CAUSED TO THE APPLICANT IF THE APPLICATION IS NOT ALLOWED. MP NO. 39/BANG/2019 (IN IT(TP)A NO.2495/BANG/2017) PAGE 4 OF 4 2. WE HAVE CAREFULLY PERUSED THE SUBMISSIONS PUT FORTH IN THE MISCELLANEOUS APPLICATION, CONSIDERED THE CONTENTIONS OF THE COUNSEL FOR THE ASSESSEE AND FIND THAT THERE IS A REASONABLE CAUSE FOR NON-APPEARANCE ON THE DATE FIXED. IN THIS VIEW OF THE MATTER, WE RECALL THE ORDER OF THE TRIBUNAL DATED 19.12.2018 AND DIRECT THE REGISTRY TO FIX THIS APPEAL FOR HEARING ON 20.11.2019. SINCE THE DATE OF HEARING IS ANNOUNCED IN THE OPEN COURT, NO FRESH NOTICE WILL BE ISSUED TO PARTIES. 3. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE FOR ASSESSMENT YEAR 2013-14 IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH JUNE, 2019. SD/- SD/- (N. V. VASUDEVAN) (JASON P BOAZ) VICE PRESIDENT ACCOUNTANT MEMBER PLACE : BANGALORE DATED : 14/06/2019 /NS/* COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A) - II BANGALORE 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.