M/s. Waters (India) Private Limited, Bengaluru V. Deputy Commissioner Of Income Tax, Circle- 12(5), Bengaluru

MA 41/BANG/2021

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 2622 (ITAT-BANGALORE)
• Duration Of Justice: 4 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-06-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 18-02-2021
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VIKAS SURYAVAMSHIADDL
• Assessee Lawyers: SHARATH RAOCA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI. B.R BASKARAN, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER MP NO.41/BANG/2021 (IN IT(TP)A 2349/BANG/2019) ASSESSMENT YEAR : 2009 - 10 M/S WATERS INDIA PVT.LTD., NO. 36A, 2 ND PHASE, PEENYA INDUSTRIAL AREA, BENGALURU-560058 PAN AAACW1411C VS. THE DY.COMMISSIONER OF INCOME TAX, CIRCLE-12(5), BENGALURU. APPELLANT RESPONDENT A SSESSEE BY : SRI. SHARATH RAO,CA RE VENUE BY : VIKAS SURYAVAMSHI,ADDL.CIT. DATE OF HEARING : 23 - 04 - 202 1 DATE OF PRONOUNCEMENT : 25 - 06 - 202 1 ORDER PER BEENA PILLAI, JUDICIAL MEMBER PRESENT MISCELLANEOUS PETITION IS FILED BY AS SESSEE SEEKING RECTIFICATION OF ALLEGED MISTAKES APPARENT ON RECOR D IN ORDER DATED 25/11/2020 PASSED BY THIS TRIBUNAL IN THE ABOVE REFERRED APPEAL. PAGE 2 OF 5 MP NO.41/BANG/2021 2. THE LD.AR SUBMITTED THAT ASSESSEE HAD FILED AN A DDITIONAL GROUND VIDE APPLICATION DATED 21/09/2020, CHALLENGI NG DISALLOWANCE OF EDUCATION WHICH HAS NOT BEEN ADJUDI CATED. 3. ON PERUSAL OF THE RECORDS PLACED BEFORE US, WE N OTE THAT THIS ISSUE HAS INADVERTENTLY NOT ADJUDICATED WHILE PASSI NG THE IMPUGNED ORDER. 4. THE LD.AR SUBMITTED THAT, AT PAGE 6 OF THE IMPUG NED ORDER, THIS TRIBUNAL OBSERVED THAT, ASSESSEE IS NOT DISPUTING TO THE SEGREGATION OF MANAGEMENT SERVICES TO BE BENCH MARK ED SEPARATELY. AT THE OUTSET LD.AR SUBMITTED THAT VIDE GROUND NO.1 .3 ASSESSEE CHALLENGED SEGREGATION AND SEPARATE BENCHMARKING TH E INTRAGROUP SERVICES FROM THE MANUFACTURING AND TRADING SEGMENT . 5. WE HAVE PERUSED THE SUBMISSIONS ADVANCED BY BOTH SIDES IN LIGHT OF RECORDS PLACED BEFORE US. WE NOTE THAT THE SAID GROUND NO.1.3 IS RAISED BY ASSESSEE CHALLENGING THE SEGREG ATION OF SERVICE BY LD.AO/TPO. THEREFORE OBSERVATION OF THIS TRIBUNA L DESERVES TO BE DELETED. 6. ACCORDINGLY WE DELETE THE OBSERVATION IN PARA 14 OF THE IMPUGNED ORDER AT PAGE 6. HENCEFORTH PARA 14 SHALL BE READ AS UNDER: 14. THE LD.AR SUBMITTED THAT LD.TPO HAS NOT ANALYS ED THE SERVICES RENDERED BY AE TO ASSESSEE IN THE LIGHT OF EVIDENCES FILED BY ASSESSEE. HE ALSO SUBMITTED THAT EVEN LD.C IT(A) SUMMARILY REJECTED SUBMISSIONS OF ASSESSEE WITHOUT VERIFYING VARIOUS EVIDENCES FILED. PAGE 3 OF 5 MP NO.41/BANG/2021 7. THE LD.AR SUBMITTED THAT THERE IS ONE MORE GROUN D WHICH HAS NOT BEEN ADJUDICATED, REGARDING DISALLOWANCE OF MAN AGEMENT FEE UNDER SECTION 40(A) OF THE ACT BY LD.AO ON PROTECTI VE BASIS. 8. FROM THE RECORDS WE NOTE THAT IN THE IMPUGNED OR DER, THIS TRIBUNAL REMANDED THE ISSUE OF COMPUTATION OF ARMS LENGTH P RICE OF INTRAGROUP SERVICES BACK THE LD.AO, AND ACCORDINGL Y THIS ISSUE BECOMES ACADEMIC. WE REFER TO THE SPECIFIC OBSERVAT ION OF THIS TRIBUNAL WHICH CONSIDER THIS ASPECT IN PARA 8 AND PARA 25. ACCORDINGLY WE REJECT THIS PLEA OF ASSESSEE. 9. WE THUS DIRECT REGISTRY TO FIX THE APPEAL ONLY T O ADJUDICATE THE ADDITIONAL GROUND RAISED BY ASSESSEE WIDE APPLICATI ON DATED 21/09/2020 THAT READS AS UNDER: GROUND NO. 2.5: DEDUCTION IN RESPECT OF 'EDUCATION CESS ON INCOME-TAX' AND 'SECONDARY AND HIGHER EDUCATION CES S ON INCOME-TAX' FOR THE YEAR UNDER CONSIDERATION, WHILE ASSESSING THE TOTAL INCOME OF THE APPELLANT THE LEARNED ASSESSING OFFICER ('LEARNED AD') AND HON'BLE COMMISSIONER OF INCOME TAX ('HON'BLE CIT(A)'), WHIL E ASSESSING THE TOTAL INCOME OF THE APPELLANT FOR THE YEAR UNDER CONSIDERATION, HAVE ERRED IN NOT ALLOWING A DEDUCTI ON FOR EDUCATION CESS AND SECONDARY & HIGHER EDUCATION CES S (COLLECTIVELY KNOWN AS 'EDUCATION CESS') FOR THE YE AR UNDER CONSIDERATION ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED AD AND HON'BLE CIT(A) OUGHT TO HAVE ALLOWED DEDUCTION OF EDUCATION CESS FOR THE YEAR UNDER CONS IDERATION, THOUGH NOT CLAIMED AS A DEDUCTION BY THE APPELLANT WHILE FILING ITS RETURN OF INCOME. PAGE 4 OF 5 MP NO.41/BANG/2021 REGISTRY IS DIRECTED TO FIX THE APPEAL FOR HEARING ON THIS ISSUE IN REGULAR COURSE. ACCORDINGLY, THE MISCELLANEOUS PETITION FILED BY AS SESSEE STANDS PARTLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 25 TH JULY, 2021 SD/- SD/- (B.R BASKARAN) (BEENA PILLAI) ACCOUNTANT MEMBER JUDICIAL MEM BER BANGALORE, DATED, THE 25 TH JUNE, 2021. /VMS/ COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE PAGE 5 OF 5 MP NO.41/BANG/2021 DATE INITIAL 1. DRAFT DICTATED ON ON DRAGON SR.PS 2. DRAFT PLACED BEFORE AUTHOR -6-2021 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER -6-2021 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. -6-2021 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS -6-2021 SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON -6-2021 SR.PS 7. DATE OF UPLOADING THE ORDER ON WEBSITE -6-2021 SR.PS 8. IF NOT UPLOADED, FURNISH THE REASON -- SR.PS 9. FILE SENT TO THE BENCH CLERK -6-2021 SR.PS 10. DATE ON WHICH FILE GOES TO THE AR 11. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 12. DATE OF DISPATCH OF ORDER. 13. DRAFT DICTATION SHEETS ARE ATTACHED NO SR.PS