M/s Trilogy E Business Software India Private Limited, Bangalore V. DCIT, Bangalore

MA 45/BANG/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6804 (ITAT-BANGALORE)
• Duration Of Justice: 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-09-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 12-08-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ETWA MUNDA CITIIIDR
• Assessee Lawyers: PADAMCHAND KHINCHA
• Keywords: Transfer pricing; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER M.P. NO.45/BANG/2011 (IN ITA NO.1201/BANG/2010 ) ASSESSMENT YEAR : 2006-07 TRILOGY E BUSINESS SOFTWARE INDIA PVT. LTD., 4 TH FLOOR, NO.97, PATTON HOUSE II, 4 TH B CROSS, 5 TH BLOCK, KORAMANGALA INDUSTRIAL AREA, BANGALORE 560 095. PAN: AABCT2328Q VS THE DY. COMMISSIONER OF INCOME TAX, CIRCLE 12(4), BANGALORE. APPLICANT RESPONDENT APPLICANT BY : SHRI PADAMCHAND KHINCHA, C.A. RESPONDENT BY : SHRI ETWA MUNDA, CIT-III(DR) DATE OF HEARING : 26.08.2011 DATE OF PRONOUNCEMENT : 06.09.2011 O R D E R PER A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER THIS MISCELLANEOUS PETITION IS BY THE ASSESSEE C OMPANY SEEKING TO RECTIFY CERTAIN MISTAKES IN THE ORDER OF THE TRIBUNAL DATED 30.6.2011 IN ITA NO.1201/BANG/2010. 2. THE LD. AR SUBMITTED THAT THE TRIBUNAL BY ITS OR DER DATED 31.8.2010 REMITTED BACK THE ISSUES RAISED BY THE ASSESSEE TO THE FILES OF AO/TPO, EXCEPT 2 FOR THE ISSUE OF CONSIDERING FOREIGN EXCHANGE GAINS AS OPERATING INCOME WHILE COMPUTING ALP AND VARIATION TO DEDUCTION U/S. 10A W HICH WERE DECIDED IN FAVOUR OF THE ASSESSEE. HOWEVER, IN PARA 5.3.1 OF THE ORD ER, IT WAS STATED THAT OUT OF THE 10 POINTS LISTED OUT ABOVE, TWO ISSUES AS MENTI ONED AT SL.NOS (VII) AND (X), WE FIND THAT THE DECISIONS OF THE HONBLE TRIBUNALS AR E SQUARELY APPLICABLE TO THE FACTS OF ISSUES ON HAND WHICH ARE ILLUSTRATED AS UN DER. IT WAS SUBMITTED BEFORE THE TRIBUNAL VIDE GROUND NO.11 THAT EVEN IF TP ADJU STMENT IS TO BE MADE, THE APPELLANT SHOULD BE GIVEN BENEFIT OF 5% DEDUCTION A S PROVIDED UNDER PROVISO TO SECTION 92C(2), WHICH ALSO STANDS REMANDED BACK WIT HOUT ANY DIRECTIONS. THE LD. AR SUBMITTED THAT THIS ISSUE OF 5% DEDUCTION UNDER PROVISO TO SECTION 92C(2) WHILE COMPUTING THE ALP IS ALSO COVERED IN ITS FAVO UR BY THE DECISIONS OF THE TRIBUNAL WHICH WERE CITED AT THE TIME OF HEARING. IN VIEW OF THE ABOVE, IT WAS PRAYED THAT INSTEAD OF THIS ISSUE BEING REMITTED BA CK, THE ORDER OF THE TRIBUNAL DATED 30.6.2011 IS TO BE RECTIFIED TO GRANT STANDAR D DEDUCTION OF 5% AS PROVIDED UNDER UNAMENDED PROVISO TO SECTION 92C(2) OR ATLEAS T A DIRECTION BE GIVEN TO THE REVENUE AUTHORITIES TO CONSIDER DEDUCTION OF 54% WH ILE ARRIVING AT THE FINAL TRANSFER PRICING ADJUSTMENT. 3. THE LD. DR STRONGLY OBJECTED TO THE REQUEST OF T HE LD. AR STATING THAT THE ISSUE WAS ONLY REMITTED BACK TO THE FILE OF LD. AO/ TPO FOR FRESH CONSIDERATION IN THE LIGHT OF THE VARIOUS DECISIONS RENDERED BY APPE LLATE AUTHORITIES AND HIGHER JUDICIARY. THEREFORE THERE IS NO MISTAKE IN THE OR DER OF THE TRIBUNAL RECTIFIABLE U/S. 254(2) OF THE ACT. 3 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IN THE TRIBUNAL ORDER IN ITA NO.1201/BANG/2010 FOR THE A.Y. 2006-07 WITH RESPECT TO CERTAIN ISSUES, THE CASE WAS REMITTED BACK TO TH E FILE OF LD. AO/TPO FOR DE NOVO CONSIDERATION. THE RELEVANT PORTION OF THE OR DER PARA 5.3.1 IS REPRODUCED HEREIN FOR REFERENCE: 5.3.1. TAKING INTO ACCOUNT THE FACTS AND CIRC UMSTANCES WITH REGARD TO THE REMAINING SHORT-COMINGS AS LISTED OUT IN TH E FORE-GOING PARAGRAPHS AND ALSO A FACT THAT THE ASSESSEE HAS BE EN DEPRIVED OF ITS RIGHTFUL OPPORTUNITY TO PUT-FORTH ITS VIEW ON THE I SSUES WHICH HAVE BEEN DEALT WITH AT THE LEVELS OF TPO AND DRP AND IN THE INTERESTS OF NATURAL JUSTICE AND FAIRNESS, THE ISSUES RAISED BY THE ASSE SSEE ARE REMITTED BACK ON THE FILES OF THE LD. AO/LD. TPO FOR CONSIDE RATION AFRESH AND ALSO AFFORDING A REASONABLE OPPORTUNITY TO THE ASSE SSEE OF BEING HEARD. IN THE MEANWHILE, THE ASSESSEE, THROUGH ITS LD. A.R , IS ADVISED TO PLACE ALL THE RELEVANT PARTICULARS BEFORE THE AUTHORITIES CONCERNED TO FACILITATE THEM TO IMPLEMENT THE DIRECTIONS OF THIS BENCH CITE D SUPRA, EXPEDITIOUSLY. 5. ON PERUSING THE RELEVANT EXTRACTED PORTION OF TH E ORDER, AS POINTED OUT BY THE LD. DR WE DO NOT FIND ANY MISTAKE APPARENT ON R ECORD RECTIFIABLE U/S. 254(2) OF THE ACT. NEEDLESS TO MENTION THAT THE LD. AO I S BOUND TO PASS APPROPRIATE ORDER AS PER LAW CONSIDERING THE FACTS. THEREFORE , WE DISMISS THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE. PRONOUNCED IN THE OPEN COURT ON THIS 6 TH DAY OF SEPTEMBER, 2011. SD/- SD/- ( SMT. P. MADHAVI DEVI ) (A. MOHAN ALANKAMONY ) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 6 TH SEPTEMBER, 2011. DS/- 4 COPY TO: 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.