Deputy Commissioner of Income-tax, Circle - 1(1), Pune V. Amber Point Technology India P. Ltd., Pune

MA 54/PUN/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2669 (ITAT-PUNE)
• Duration Of Justice: 7 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-03-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 21-12-2018
• Assessment Year: 2008-2009
• Appeal Filed On: 16-07-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SANJEEV GHEI
• Assessee Lawyers: KARAN SONI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM M A NO. 5 4 /P U N/201 8 ARISING OUT OF ITA NO. 756 /PN/201 4 ASSESSMENT YEAR : 20 0 8 - 0 9 THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE - 1(1), PUNE. . APPLICANT VS. AMBER POINT TECHNOLOGY INDIA PVT. LTD. DLF BUILDING NO. 8, TOWER C, GROUND FLOOR, DLF CYBER CITY , DLF PHASE - II, GURGAON - 122 002. . RESPONDENT PAN : AAFCA0749Q APPLICANT BY : SHRI SANJEEV GHEI RESPONDENT BY : SHRI KARAN SONI / DATE OF HEARING : 01 . 0 3 .201 9 / DATE OF PRONOUNCEMENT: 08 . 0 3 .201 9 / ORDER PER SUSHMA CHOWLA, JM : THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILED BY REVENUE - APPLICANT POINTING OUT AN ERROR IN THE ORDER O F TRIBUNAL DATED 2 5 . 0 1 .201 8 . 2. IT IS MENTIONED IN THE MISCELLANEOUS APPLICATION THAT THE TRIBUNAL IN PARA 26 THAT THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE HAD FAIRLY POINTED OUT THAT THE ISSUE IS AGAINST THE ASSESSEE AND HENCE, AKSHAY SOFTW ARE TECHNOLOGIES LTD. HAS TO BE EXCLUDED FROM THE FINAL SET OF COMPARABLES. IN THIS REGARD, HE RELIED 2 M A NO. 54 /P U N/201 8 ON THE RATIO LAID DOWN BY PUNE BENCH OF TRIBUNAL IN MSC SOFTWARE CORPORATION INDIA (P.) LTD. VS. ACIT (2017) 80 TAXMANN.COM 55 (PUNE - TRIB). FURTHER, IN PARA 27 OF THE ORDER, BY AN ERROR, THE TRIBUNAL HAS DIRECTED THAT AKSHAY SOFTWARE TECHNOLOGIES LTD. IS TO BE INCLUDED IN THE FINAL SET OF COMPARABLES. HENCE, MISTAKE HAS OCCURRED IN THE FINAL PARA OF DIRECTIONS BY THE TRIBUNAL. 3. WE HAVE PERUSED THE O RDER OF TRIBUNAL AND FIND THAT AN ERROR HAS CREPT WHILE GIVING DIRECTIONS IN PARA 27 OF THE ORDER DATED 25.01.2018 AND ACCORDINGLY, WE RECTIFY THE SAID ERROR AND PARAS 26 AND 27 WOULD READ AS UNDER: - 26. THE NEXT CONCERN WHICH THE REVENUE IS AGGRIEVED UP ON IS THE INCLUSION OF AKSHAY. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE IN THIS REGARD FAIRLY POINTED OUT THAT THE ISSUE IS AGAINST THE ASSESSEE AND AKSHAY HAS TO BE EXCLUDED FROM THE FINAL SET OF COMPARABLES. IN THIS REGARD, HE AGAIN PLACE D RELIANCE ON THE ORDER OF TRIBUNAL IN MSC SOFTWARE CORPORATION (P.) LTD. VS. ACIT (SUPRA) AT PAGE 14, PARA 23, WHICH READS AS UNDER: - 23. NOW, COMING TO THE SECOND ARGUMENT OF THE ASSESSEE I.E. EXCLUSION OF CONCERNS WHICH WERE SELECTED BY THE ASSESSEE IN ITS TP ANALYSIS. THE FIRST CONCERN IS AKSHAY SOFTWARE TECHNOLOGIES LTD., WHICH AS PER THE ASSESSEE IS FUNCTIONALLY COMPARABLE TO THE ASSESSEE. HOWEVER, THE SAID CONCERN IS ENGAGED IN ON - SITE DEVELOPMENT AND HENCE, THE MARGINS OF SAID CONCERN ARE NOT COMPA RABLE TO THE ASSESSEE WHICH IS OFF - SITE DEVELOPER. THE PUNE BENCH OF TRIBUNAL IN TIBCO SOFTWARE (INDIA) PVT. LTD. VS. DCIT IN ITA NO.2536/PN/2012 RELATING TO ASSESSMENT YEAR 2008 - 09, ORDER DATED 11.02.2015 HAD HELD THAT BOTH AKSHAY SOFTWARE TECHNOLOGIES LT D. AND MAARS SOFTWARE INTERNATIONAL LTD. WERE TO BE REJECTED BEING ON - SITE DEVELOPERS WHILE COMPARING THE MARGINS WITH OFF - SITE DEVELOPERS. THE SAID PROPOSITION WAS AGAIN APPLIED BY THE PUNE BENCH OF TRIBUNAL IN BMC SOFTWARE INDIA PVT. LTD. VS. DCIT IN ITA NO.1425/PN/2010, RELATING TO ASSESSMENT YEAR 2006 - 07, ORDER DATED 16.03.2016. 3 M A NO. 54 /P U N/201 8 APPLYING THE SAID PRINCIPLE, WE HOLD THAT AKSHAY SOFTWARE TECHNOLOGIES LTD. IS TO BE EXCLUDED FROM THE FINAL LIST OF COMPARABLES AS DONE BY THE TPO. APPLYING THE SAID PRINCIPLE, WE FURTHER HOLD THAT THE CONCERN AT SERIAL NO.3 I.E. MAARS SOFTWARE INTERNATIONAL LTD. BEING ON - SITE DEVELOPER IS ALSO TO BE EXCLUDED FROM THE FINAL SET OF COMPARABLES. SIMILARLY, THE CONCERN AT SERIAL NO.6 I.E. R S SOFTWARE (INDIA) LTD. IS ON - SITE DEVELO PER AND THE SAME IS TO BE EXCLUDED FROM THE FINAL LIST OF COMPARABLES. 27. IN VIEW OF THE CONCESSION OF ASSESSEE, WE HOLD THAT AKSHAY IS TO BE EXCLUDED FROM THE FINAL LIST OF COMPARABLES. ACCORDINGLY, THE SECOND ISSUE RAISED BY THE REVENUE STANDS ALLOWE D. 4 . IN THE RESULT, MISCELLANEOUS APPLICATION OF APPLICANT IS ALLOWED. ORDER PRONOUNCED ON THIS 8 TH DAY OF MARCH , 201 9 . SD/ - SD/ - (ANIL CHATURVEDI) (SUSHMA CHOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 8 TH M ARCH , 201 9 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. THE APP LICANT ; 2. THE RESPONDENT; 3. THE CIT(A) , PUNE - 1 ; 4. THE CIT - 1 , P UNE ; 5. THE DR B , ITAT, PUNE; 6. GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE