M/s. G Corp Spaces Private Limited, Bangalore V. The Assistant Commissioner Of Income Tax, Circle- 3(1)(2), Bangalore

MA 5/BANG/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4568 (ITAT-BANGALORE)
• Duration Of Justice: 2 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-04-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2015-2016
• Appeal Filed On: 30-01-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH : BANGALORE BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER M.P. No.5/Bang/2022 [in IT(TP)A No. 53/Bang/2020] Assessment year: 2015-16 G Corp Spaces Pvt. Ltd., No.21/19, Craig Park Layout, Off M G Road, Bengaluru – 560 001. PAN: AAECG 6624M Vs. The Assistant Commissioner of Income Tax, Circle 3(1)(2), Bengaluru. APPLICANT RESPONDENT Applicant by : Shri Nageshwar Rao, Advocate Respondent by : Shri Sankar Ganesh, Jt.CIT(DR)(ITAT), Bengaluru. Date of hearing : 11.03.2022 Date of Pronouncement : 29.04.2022 O R D E R Per Chandra Poojari, Accountant Member This miscellaneous petition is filed by the assessee seeking certain rectification in the order passed by the Tribunal dated 24.8.2021 in ITA No.53/Bang/2020. 2. The ld. AR submitted that the assessee had filed additional grounds and additional evidences submitted by the Appellant in the course of the appeal proceedings before the Tribunal which are as follows:- Ground 5(a): "That on facts and circumstance of case and in law, the CIT(A) / AO/TPO failed to factor in impact of moratorium period (as on date 84 months in case MP No.5/Bang/2022 [in IT(TP)A No. 53/Bang/2020] Page 2 of 4 of Tranche I and 82 months, 11 days in case of Tranche II) on effective interest rate of NCDs, which would be at arm's length being 10.70% for Tranche I and 10.76% for Tranche II. Ground 6(a): "That on facts and circumstances of case and in law, without prejudice to any other grounds, the CIT(A) /AO / TPO failed to undertake complete and comprehensive search reckoning all relevant criteria. 3. Further, in relation to the above additional grounds, the ld. AR submitted that the assessee also filed additional evidence and submitted that the admission of the additional grounds goes to the root of the matter and in view of the decision of Apex Court in National Thermal Power Corporation v. CIT (1998) 229 ITR 383 (SC), the same may be admitted for adjudication. The additional evidence filed are as follows:- Annexures Page Annexure 1 : Additional comparability analysis 6 to 19 Annexure 1A: Amending debenture trust deed agreement dated 6.4.2017 20 to 35 Annexure 1B: Amending debenture trust deed agreement dated 10.4.2019 36 to 58 Annexure 1C: Effective rate of interest 59 to 62 Annexure 1D: Accept Reject Matrix 63 to 644 Annexure 1E: Brief description of comparable transactions 645 to 646 4. It was submitted that the Tribunal by order dated 24.8.2021 restored the issue to the file of the CIT(Appeals). However, the said Tribunal’s order does not find a mention of the above discussed additional grounds and additional evidence, which appears to be an inadvertent mistake apparent on record, which is requested to be rectified. MP No.5/Bang/2022 [in IT(TP)A No. 53/Bang/2020] Page 3 of 4 5. Further, it was submitted that in para 7 of the said order, it was inadvertently mentioned in the Tribunal’s order as ‘revenue’s appeal’ instead of assessee’s appeal, which was also sought to be rectified. 6. We have heard both the parties and perused the material on record. The assessee had filed the above additional grounds and additional evidence before the Tribunal for admission of the same. However, while restoring the issue to the file of CIT(Appeals), the Tribunal inadvertently did not adjudicate the admission of additional grounds and additional evidence filed by the assessee on record. We therefore now take up adjudication of the same. 7. The additional grounds and additional evidence filed by the assessee does not involve fresh investigation in to facts and goes to the root of the matter. Therefore, following the judgment of the Supreme Court in the case of National Thermal Power Corporation (supra), we admit the additional grounds and the additional evidence filed in relation thereto. 8. Since the additional evidence is filed for the first time before the Tribunal, the lower authorities had no occasion to consider the same. Accordingly, the entire issue in dispute is remitted to the file of the AO/TPO for consideration of additional evidence and additional grounds filed by the assessee and decide the issue afresh in accordance with law. 9. Further, in para 7 of the order, in the result of the appeal, it is inadvertently mentioned as revenue’s appeal, Para 7 of the order is modified to read as under:- “7. In the result, the appeal by the assessee is allowed for statistical purposes.” MP No.5/Bang/2022 [in IT(TP)A No. 53/Bang/2020] Page 4 of 4 10. The miscellaneous petition filed by the assessee is allowed. Pronounced in the open court on this 29 th day of April, 2022. Sd/- Sd/- ( BEENA PILLAI ) ( CHANDRA POOJARI ) JUDICIAL MEMBER ACCOUNTANT MEMBER Bangalore, Dated, the 29 th day of April, 2022. /Desai S Murthy / Copy to: 1. Applicant 2. Respondent 3. CIT 4. CIT(A) 5. DR, ITAT, Bangalore. By order Assistant Registrar ITAT, Bangalore.