Appeal details
Counselvise Citation
[2022] 104 COUNSELVISE.COM (IT) 5386 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
9 month(s) 25 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
09-01-2022
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
J
Assessment Year
2012-2013
Appeal Filed On
14-03-2021
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL (VIRTUAL COURT) “J” BENCH, MUMBAI BEFORE SHRI S. RIFAUR RAHMAN, HON'BLE ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH, HON'BLE JUDICIAL MEMBER MA No. 73/MUM/2021 [(ARISING OUT OF ITA No. 565/MUM/2016 (A.Y. 2011-12)] MA No. 74/MUM/2021 [(ARISING OUT OF ITA No. 1906/MUM/2017 (A.Y. 2012-13)] Symantec Software Solutions P. Ltd. Unit No. 1801, 18™ Floor The Capital Plot no.70, “G” Block Bandra Kurla Complex, Bandra Mumbai 400 051 PAN : AABCV2624B v. DCIT – Circle – 14(3)(2) Mumbai Appellant Respondent Revenue by : Shri M.P. Lohia Assessee by : Shri Shreekala Pardeshi Date of Hearing : 03.09.2021 Date of pronouncement : 10.01.2022 O R D E R PER S. RIFAUR RAHMAN (AM) 1. By means of these Miscellaneous Applications (MA), the applicant seeks recall of the order dated 15 th September, 2020 passed in the captioned appeals. MA No. 73 & 74/MUM/2021 Symantec Software Solutions P. Ltd. 2 2. At the time of hearing, Ld. AR submitted that assessee has filed several grounds particularly Ground No. 3 and 4 in which assessee sought exclusion of Infosys Limited from the set of comparable companies and Ground No. 4 relating to treatment of amortization of goodwill as non-operating in nature in the software development services segment. It is submitted that the ITAT gave partial effect to the Ground No. 3 for exclusion of Infosys Limited. With regard to Ground No. 4 the bench has directed to consider amortized goodwill as non-operating and allocate the same to both the segments in the ratio of 85.15 :14.85 instead of considering it only for the software development service segment as argued by the assessee. 3. Ld. AR submitted that as a result of the partial relief granted by the Tribunal with respect to Ground No 4, the arithmetic mean of comparable companies is not falling within 5% range and the adjustment with respect to the transfer pricing relating to software development service segment is partially sustained. This has resulted in undue hardship to the assessee. Therefore, assessee prays to contend on certain other grounds of appeal for the sake of justice. Ld. AR submitted that assessee has not pressed other grounds of appeal. MA No. 73 & 74/MUM/2021 Symantec Software Solutions P. Ltd. 3 4. On the other hand, Ld. DR submitted that from the Miscellaneous Application filed by the assessee shows that the assessee intended to review the order passed by the Tribunal and he submitted that assessee chose not to press the other grounds expecting favorable decisions, now they cannot be reviewed. Further he brought to our notice Para no. 1.7 of the Miscellaneous Application to highlight that assessee has come on Miscellaneous Application when the bench gave partial relief to them. He submitted that it is not mistake apparent on record, he objected to the Miscellaneous Application filed by the assessee and now assessee cannot contend to seek recall of certain other grounds of appeal which it has not pressed at the time of original hearing. 5. Considered the rival submissions and material placed on record, we observe from the record that assessee has pressed Ground No. 3 and 4 expecting that once it gets the relief in Ground No. 3 and 4 the arithmetic mean of comparable companies will be within the range of 5% and there won’t be any necessity for arm’s length price adjustment in this case. Since the bench decided Ground No. 4 partially in favour of the assessee and that has necessitated the arm’s length price adjustment which is not in favour of the assessee. Now assessee seeks to make representation MA No. 73 & 74/MUM/2021 Symantec Software Solutions P. Ltd. 4 on the other grounds of appeal which was preferred not to press earlier. Considering the facts on record and for the sake of justice, in our considered view we deem it fit and proper to recall this appeal for the limited purpose of adjudication on the other grounds of appeal which assessee has not pressed. Therefore, we direct the Registry to post the case in due course before the regular bench to adjudicate on the other grounds of appeal which assessee has not pressed. 6. The other M.A.No. 74/Mum/2021 filed by the assessee are also on the similar prayer. Therefore, both the Miscellaneous Applications filed by the assessee are allowed. 7. In the net result, Miscellaneous Applications filed by the assessee are allowed. Order pronounced on 10.01.2022 as per Rule 34(4) of ITAT Rules by placing the pronouncement list in the notice board. Sd/- Sd/- (AMARJIT SINGH ) (S. RIFAUR RAHMAN) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai; Dated:10/01/2022 Giridhar, Sr. P.S. MA No. 73 & 74/MUM/2021 Symantec Software Solutions P. Ltd. 5 Copy of the Order forwarded to: 1. The Appellant 2. The Respondent. 3. The CIT(A), Mumbai. 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// BY ORDER (Asstt. Registrar) ITAT, Mums
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