M/s Global e-Business Operations P Ltd, Bangalore V. Deputy Commissioner of Income tax, Bangalore

MA 78/BANG/2017

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 5521 (ITAT-BANGALORE)
• Duration Of Justice: 6 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-10-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 16-06-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 28-03-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B R RAMESH
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, BANGALORE BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER [MP NO. 78/B/2017 (IN IT(TP)A NO.1092/B/2011 )] (ASSESSMENT YEAR: 2007-08 ) M/S. GLOBAL E:BUSINESS OPERATIONS PRIVATE LIMITED, SURVEY NO.1, 6 AND 24, KUNDALAHALLI VILLAGE, K. R. PURAM, HOBLI, BENGALURU-560056. PAN: AABCG2843D APPLICANT VS. DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE 11(3, BENGALURU. RESPONDENT APPLICANT BY : SHRI. SHARATH RAO, CA REVENUE BY : SHRI. B. R. RAMESH, JCIT DATE OF HEARING : 06/10/2017 DATE OF PRONOUNCEMENT : 13/10/2017 O R D E R PER SUNIL KUMAR YADAV, JM : THIS MISCELLANEOUS APPLICATION IS PREFERRED ON BEHA LF OF THE ASSESSEE WITH THE SUBMISSION THAT WHILE ADJUDICATING THE ISSUE OF EXCLUSION OF COMPARABLES I.E., ACCURATE DATA CONVERTERS PVT. LTD., THE TRIBUNAL HA S NOT TAKEN INTO CONSIDERATION THE COMPLETE DETAILS OF THIS COMPARABLE AND HAS RES TORED THE MATTER TO THE AO/TPO TO RE-EXAMINE THE EXCLUSION OF THIS COMPARABLE AFTE R COLLECTING RELEVANT INFORMATION AND ALSO AFTER AFFORDING ADEQUATE OPPOR TUNITY OF BEING HEARD TO THE MP NO. 78/B/2017 (IN IT(TP)A NO.1092/B/2011) PAGE 2 OF 4 ASSESSEE, WHEREAS THE DETAILED INFORMATION WAS AVAI LABLE ON RECORD. NON CONSIDERATION OF INFORMATION AVAILABLE ON RECORD AM OUNTS TO AN ERROR IN THE ORDER OF THE TRIBUNAL. THEREFORE, NECESSARY RECTIFICATIO N IN THE ORDER OF THE TRIBUNAL IS CALLED FOR. 2. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER CON TENDED THAT THE TPO HAS ANNEXED WITH HIS ORDER AN ANNEXURE-E IN WHICH THE E MPLOYEES COST FILTER WITH REGARD TO THE ACCURATE DATA CONVERTERS PVT. LTD., W AS SHOWN TO BE ZERO AND ON THIS SCORE ONLY THIS COMPARABLE CAN BE EXCLUDED FRO M THE LIST OF COMPARABLES. INSTEAD OF DIRECTING THE EXCLUSION OF THIS COMPARAB LE, THE TRIBUNAL HAS RESTORED THE MATTER TO THE AO/TPO TO READJUDICATE THE ISSUES OF EXCLUSION. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER CONTENDED THAT SIN CE AN ERROR HAS CREPT IN THE ORDER OF THE TRIBUNAL, THE SAME MAY BE RECTIFIED BY DIREC TING THE TPO TO EXCLUDE THIS COMPARABLE FROM THE LIST OF COMPARABLES. 3. THE LEARNED DR ON THE OTHER HAND HAS SUBMITTED T HAT IN THE ANNEXURE-E OF THE TPOS ORDER, IT HAS BEEN CATEGORICALLY MENTIONE D BY THE TPO THAT THE ANNUAL REPORT AND OTHER INFORMATION OF THIS COMPARABLE WAS NOT AVAILABLE. MOREOVER, THE ANNUAL REPORT AND WAS ALSO NOT FILED DURING THE COU RSE OF HEARING OF THE APPEAL. IN THE ABSENCE OF COMPLETE DETAILS, THE TRIBUNAL HAS R IGHTLY RESTORED THE MATTER TO THE AO/TPO FOR READJUDICATION OF THE ISSUE OF COMPARABL E. 4. HAVING CAREFULLY EXAMINED THE ORDERS OF THE TRIB UNAL VIS--VIS THE MISCELLANEOUS APPLICATION, WE FIND THAT WHILE ADJUD ICATING THE ISSUE OF EXCLUSION OF ACCURATE DATA CONVERTERS PVT. LTD., THE TRIBUNAL HAS EXAMINED THE OTHER ORDERS OF THE TRIBUNAL IN THE CASE OF MAGMA DESIGN AUTOMAT ION INDIA PVT. LTD., AND MP NO. 78/B/2017 (IN IT(TP)A NO.1092/B/2011) PAGE 3 OF 4 AOL ONLINE INDIA PVT. LTD. IN THE ABSENCE OF DATA, THE TRIBUNAL HAS RESTORED THE MATTER TO THE AO/TPO FOR READJUDICATION OF THE ISSU E OF EXCLUSION AFTER OBTAINING THE DETAILS AND ALSO AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE HAVE ALSO EXAMINED THE TPOS ORDER AND ANNEXURE- E AND WE FIND THAT IN ANNEXURE-E, THE TPO HAS CATEGORICALLY OBSERVED THAT THE ANNUAL REPORT AND THE INFORMATION OF THIS COMPARABLE WAS NOT AVAILABLE. HE HOWEVER MENTIONED THE EMPLOYEES COST TO SALES AT ZERO PERCENTAGE. BUT IT IS NOT CLEAR FROM WHERE HE GOT THESE DETAILS. HE HIMSELF HAS MENTIONED IN THE CHA RT THAT THE ANNUAL REPORT AND THE INFORMATION IS NOT AVAILABLE. MOREOVER, THE ANNUAL REPORT OF ACCURATE DATA CONVERTERS PVT. LTD., WAS NOT FILED DURING THE COUR SE OF HEARING OF THE APPEAL. IN THE ABSENCE OF COMPLETE DETAILS, THE TRIBUNAL HAS R ESTORED THE MATTER TO THE AO/TPO TO READJUDICATE THE ISSUE OF EXCLUSION OF TH IS COMPARABLE. UNDER THE GIVEN FACTS, WE FIND THAT TRIBUNAL HAS NOT DECIDED THE ISSUE ON EITHER SIDE. IT WAS SIMPLY RESTORED TO THE AO/TPO FOR READJUDICATION OF THE ISSUE. THEREFORE, WE FIND NO MERIT IN THE MISCELLANEOUS APPLICATION OF THE AS SESSEE AND ACCORDINGLY WE DISMISS THE SAME. 3. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH OCTOBER, 2017. SD/- SD/- (INTURI RAMA RAO) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMB ER PLACE : BANGALORE DATED : 13/10/2017 /NSHYLU/* MP NO. 78/B/2017 (IN IT(TP)A NO.1092/B/2011) PAGE 4 OF 4 COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A)-II BANGALORE 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER SR. PRIVATE SECRETARY, ITAT, BANGALORE.