SYMANTEC SOFTWATE SOLUTIONS P.LTD, V. ASST CIT 10(1),

MA 769/MUM/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0331 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-05-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 21-12-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH B, MUMBAI BEFORE SHRI I.P.BANSAL,JUDICIAL MEMBER & SHRI N.K.BILLAIYA, ACCOUNTANT MEMBER MA NO.769/MUM/2012 (ARISING OUT OF ITA NO.8673/MUM/2011,A.Y. 2007-08) M/S. SYMANTEC SOFTWARE SOLUTIONS PRIVATE LTD., UNIT 430, C-WING, 4 TH FLOOR, FORTUNE 2000, BANDRA-KURLA COMPLEX, BANDRA (E), MUMBAI - 400 051 PAN: AABCV 2624B (APPLICANT) VS. ASSISTANT COMMISSIONER OF INCOME TAX 10(1), ROOM NO.455, 4 TH FLOOR, AAYKAR BHAVAN, MK ROAD, MUMBAI - 400 020 (RESPONDENT) APPLICANT BY : SHRI S/SHRI RAJAN VORA/HEMAN CHA NDARYA RESPONDENT BY : SHRI MANOJ K UMAR DATE OF HEARING : 17/05/20 13 DATE OF PRONOUNCEMENT : 17/05/2013 ORDER PER I.P.BANSAL, J.M, THE AFOREMENTIONED MISCELLANEOUS APPLICATION IS F ILED BY THE ASSESSEE CONTENDING THAT THERE ARE SEVERAL MISTAKES IN THE O RDER DATED 27/6/2012 PASSED BY THIS TRIBUNAL IN ITA NO.8673/MUM/2011. 2. WHILE ARGUING THE AFOREMENTIONED MISCELLANEOUS A PPLICATION, LD. AR, POINTED OUT TO THE FOLLOWING MISTAKES WHICH ACCORDI NG TO HIM ARE REQUIRED TO BE RECTIFIED: (I) IN PARA 8.9 THE TRIBUNAL HAS ERRED IN MENTIONIN G AN AMOUNT OF RS.47,49,719/- WHICH ACCORDING TO THE FACTS OF THE CASE SHOULD BE AN AMOUNT OF RS.44,24,452/-. MA NO.769/MUM/2012 (ARISING OUT OF ITA NO.8673/MUM/2011,A.Y. 2007-08) 2 (II) WHILE DECIDING GROUND NO.12 WHICH IS DECIDED BY PARA 8.9 THE TRIBUNAL HAS FAILED TO TAKE INTO CONSIDERATION THE ARGUMENT S OF THE ASSESSEE THAT SUCH EXPENSES RELATING TO TRAVELLING TO SINGAPORE WERE ALSO IN THE NATURE OF REIMBURSEMENT. IT IS THE CONTENTION OF LD. A.R THA T WHILE DEALING WITH SIMILAR DISALLOWANCE IN RESPECT OF GROUND NO.11, THE TRIBUN AL HAD DIRECTED THE LD. DRP TO EXAMINE THE ISSUE REGARDING REIMBURSEMENT AND SI MILAR DIRECTIONS HAVE NOT BEEN GIVEN IN RESPECT OF GROUND NO.12. (III) IN PARA 3 & 4.2 WHILE MENTIONING THE MEAN MAR GIN OF COMPARABLES THERE IS A TYPOGRAPHICAL ERROR AS IN PARA- 3 THE MEAN MARGI N HAS BEEN MENTIONED AT 26.39% AND IN PARA 4.2 IT IS MENTIONED AS 26.50%, WHEREAS BOTH THESE FIGURES SHOULD BE 26.59%. (IV) IN PARA-6 THERE IS A TYPOGRAPHICAL MISTAKE WH ILE RECORDING THE CONTENTION OF THE ASSESSEE. THE RELEVANT EXTRACT FROM THE ORDER OF THE TRIBUNAL IS AS UNDER: THE CONTENTION OF THE ASSESSEE THAT THE LOSS MAKIN G COMPANIES WHICH HAVE BEEN EXCLUDED BEING NOT PERSISTENT LOSS MAKING COMPANIES SHOULD BE EXCLUDED IS ALSO REQUIRED TO BE EXAMINED IN DETAIL. IT IS THE CONTENTION OF LD. AR THAT THE CONTENTION OF THE ASSESSEE SHOULD HAVE BEEN RECORDED IN THE FOLLOWING WORD:- THE CONTENTION OF THE ASSESSEE THAT THE LOSS MAKIN G COMPANIES WHICH HAVE BEEN EXCLUDED BEING NOT PERSISTENT LOSS MAKING COMPANIES , SHOULD NOT BE EXCLUDED, IS ALSO REQUIRED TO BE EXAMINED IN DETAIL. (V) IN PARA-3 WHILE RECORDING THE FIGURE IN RESPE CT OF MARKETING SERVICES THE FIGURE WRITTEN AT RS.35,11,78,733/- SHOULD BE A SU M OF RS.38,71,78,733/- AND TO SUPPORT SUCH CONTENTION REFERENCE WAS MADE TO T HE ORDER PASSED BY TPO UNDER SECTION 192CA(3) OF THE ACT. 3. IT MAY BE MENTIONED HERE THAT THOUGH THE APPLICA TION CONTAIN SOME OTHER GRIEVANCES ALSO BUT AT THE TIME OF HEARING IT WAS S UBMITTED BY LD. A.R THAT AS THE MA NO.769/MUM/2012 (ARISING OUT OF ITA NO.8673/MUM/2011,A.Y. 2007-08) 3 MATTER HAS BEEN RESTORED BACK TO THE FILE OF LD. DR P THOSE MISTAKES MAY NOT HAVE MUCH BEARING UPON THE APPEAL FILED BY THE ASSESSEE . 4. WE HAVE HEARD BOTH PARTIES ON THE AFOREMENTIONE D MISTAKES AND OUR DECISIONS WITH REGARD TO THE SAME IS AS UNDER: (I) SO FAR AS IT RELATES TO FIRST MISTAKE THE FIGUR E TAKEN BY THE TRIBUNAL IN PARA 8.9 HAS BEEN TAKEN FROM THE ORDER PASSED BY LD. DRP . THEREFORE, THE MISTAKE, IF ANY, IS IN THE ORDER OF LD. DRP AND NOT IN THE ORDE R OF THE TRIBUNAL. THIS BEING NOT A MISTAKE APPARENT FROM RECORD IS DECLINED TO B E RECTIFIED. (II) THE ISSUE REGARDING TRAVELLING EXPENSES TO SIN GAPORE HAS ALSO BEEN RESTORED BACK TO THE FILE OF LD. DRP. THOUGH IT IS NOT SPEC IFICALLY DIRECTED TO EXAMINE THE CONTENTION OF THE ASSESSEE REGARDING REIMBURSEMENT OF THESE EXPENDITURE, HOWEVER, LD. DRP IS ALSO NOT PRECLUDED TO EXAMINE T HE SAME AS IT WILL BE OPEN TO THE ASSESSEE IN THE RESTORED PROCEEDINGS TO FURNISH ITS CASE AND LD. DRP IS BOUND TO DECIDE THE SAME AS PER PROVISIONS OF LAW. THERE FORE, THERE IS NO MISTAKE ON THIS ISSUE ALSO AND WE DECLINE TO ACCEPT THE REQUE ST OF THE ASSESSEE TO RECTIFY THE SAME AS IT DOES NOT FALL WITHIN THE CATEGORY OF MIS TAKE APPARENT FROM RECORD AS ENVISAGED IN SECTION 254(2) OF THE ACT.. (III) WE HAVE GONE THROUGH THE MISTAKE POINTED OUT BY LD. A.R. AS PER TABLE TPO HAD DETERMINED THE MEAN MARGIN OF 26.59%. HOWE VER, IN PARA 3& 4.2 THIS HAS WRONGLY BEEN TYPED AS 26.39% AND 26.50% RESPECT IVELY. THE SAME BEING OBVIOUS MISTAKE IS ACCEPTED TO BE RECTIFIED AND PER CENTAGE WRITTEN IN PARA 3 & 4.2 AS 26.39% AND 26.50% WILL BE REPLACED WITH 26.59%. (IV) WE HAVE HEARD BOTH THE PARTIES ON THIS ISSUE A ND AFTER CAREFUL CONSIDERATION WE ARE OF THE OPINION THAT THE RELEVA NT TEXT IN PARA 6 SHOULD BE REPLACED WITH THE TEXT GIVEN BY THE ASSESSEE WHICH IS ALSO REPRODUCED ABOVE. MA NO.769/MUM/2012 (ARISING OUT OF ITA NO.8673/MUM/2011,A.Y. 2007-08) 4 THIS IS ONLY A TYPOGRAPHICAL MISTAKE AND THE RELEVA NT TEXT IN THE ORDER OF THE TRIBUNAL IS REPLACED WITH THE FOLLOWING TEXT: THE CONTENTION OF THE ASSESSEE THAT THE LOSS MAKIN G COMPANIES WHICH HAVE BEEN EXCLUDED BEING NOT PERSISTENT LOSS MAKING COMPANIES , SHOULD NOT BE EXCLUDED, IS ALSO REQUIRED TO BE EXAMINED IN DETAIL. (V) WE HAVE VERIFIED IT FROM THE ORDER OF TPO AND F IGURE OF RS.35,11,78,733/- IS REPLACED WITH THE FIGURE OF RS.38,71,78,733/-. ACCORDINGLY THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS PARTLY ALLOWED IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON T HE 17 TH DAY OF MAY, 2013. SD/- SD/- (N.K.BILLAIYA ) (I.P.BANSAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED. 17 TH MAY, 2013. COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CITY CONCERNED 4. THE CIT(A)- CONCERNED 5. THE D.R B BENCH. (TRUE COPY) BY ORDER ASST. REGISTRAR, I TAT, MUMBAI BENCHES MUMBAI. VM.