EVONIK INDIA P.LTD, V. DCIT CIR 3(1),

MA 81/MUM/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3267 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-07-2015
• Appeal Filed By: Assessee
• Bench Allotted: K
• Assessment Year: 2009-2010
• Appeal Filed On: 23-03-2015
• Court: TRIBUNAL
• Department Lawyers: N V NADAKARNI
• Keywords: Transfer pricing

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL K , BENCH MUMBAI . . , , BEFORE SHRI R.C.SHARMA , A M & SHRI VIJAY PAL RAO , J M ./ M. A NO. 81 / MUM/20 1 5 (ARISING OUT OF ITA NO.1125/MUM/2014) ( / ASSESSMENT YEAR : 20 0 9 - 10 ) M/S EVONIK INDIA PRIVATE LIMITED (FORMERLY KNOWN AS EVONIK DEGUSSA INDIA PRIVATE LIMITED), KRISLON HOUSE, SAKIVIHAR ROAD, SAKINAKA, ANDHERI (EAST), MUMBAI - 72 V S. DCIT, CIR. - 3(1), MUMBAI ./ ./ PAN/GIR NO. : A A ACH 3690 Q ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : MR. AJIT KUMAR JAIN /REVENUE BY : MS. N.V.NADAKARNI / DATE OF HEARING : 29 TH MAY , 201 5 / DATE OF PRONOUNCEMENT : 10/07/ 201 5 / O R D E R PER R.C.SHARMA ( A .M.) : T HIS MISCELLANEOUS APPLICATION IS FILED UNDER SECTION 254(2) OF THE ACT AGAINST THE CA PTIONED APPEAL (I.E. ITA NO.1125/MUM/2014 ) FILED BY ASSESSEE FOR ASSESSMENT YEAR 2009 - 2010, WHICH WAS DISPOSED OFF BY THE TRIBUNAL VIDE ORDER DATED 18 TH SEPTEMBER, 2014. 2. THE LD. AR SUBMITTED THAT WHILE DISPOSING OFF THE AFORESAID APPEAL, CERTAIN ERROR O F FACTS APPARENT FROM RECORD HAVE INADVERTENTLY CREPT IN THE IMPUGNED ORDER, RECTIFICATION OF WHICH IS PRAYED FOR AS UNDER: MA NO.81/15 2 1. THE APPLICANT, VIDE GROUND NO.2 IN THE APPEAL FOR AY 2009 - 10, CHALLENGED THE TRANSFER PRICING ADJUSTMENT MADE BY THE ASSESSING OFFICER ('AO') / DISPUTE RESOLUTION PANEL ('DRP') / TRANSFER PRICING OFFICER ('TPO') IN RESPECT OF CONTRACT RESEARCH AND DEVELOPMENT SERVICES. 2. DURING THE COURSE OF HEARING BEFORE THIS HON'BLE BENCH, IT WAS SUBMITTED BY THE APPLICANT THAT IT HAD SELE CTED L C RA ON LINE LTD AS A COMPARABLE IN ITS TRANSFER PRICING STUDY REPORT. HOWEVER, DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE APPLICANT BEFORE THE ID TRANSFER PRICING OFFICER AND HON'BLE DISPUTE RESOLUTION PANEL POINTED OUT THAT THE INFORMATION SERVICES SEGMENT OF ICRA ONLINE LTD WAS FUNCTIONALLY NOT COMPARABLE TO THE APPLICAN T ON ACCOUNT OF THE FACT THAT LC RA ONLINE LTD WAS PROVIDING KPO SERVICES. 3. GIVEN THE ABOVE, THE APPLICANT MADE DETAILED ARGUMENTS BEFORE THE HON'BLE TRIBUNAL HIGHLIGHT ING THAT WHILE THE APPLICANT WAS INVOLVED IN PROVIDING CONTRACT RESEARCH AND DEVELOPMENT SERVICES, L C RA ONLINE LTD. WAS ENGAGED IN THE PROVISION OF KPO SERVICES. ACCORDINGLY, IT WAS FUNCTIONALLY NOT COMPARABLE TO THE APPLICANT. THE ARGUMENTS WERE CAPTURED IN A SYNOPSIS WHICH WERE HANDED OVER TO THE BENCH DURING THE COURSE OF THE HEARING. THE SAME IS ENCLOSED AS ANNEXURE 2. 4. HOWEVER, THE HON'BLE TRIBUNAL IN THE IMPUGNED ORDER INADVERTENTLY OVERLOOKED AND FAILED TO GIVE A REASON FOR THE FINDING ON THE FA CT OF FUNCTIONAL COMPARABILITY OF ICRA ONLINE LTD WITH THE APPLICANT. THE RELEVANT PARA. 6 OF THE IMPUGNED ORDER, IS AS UNDER: 'IN RESPECT OF ICRA ONLINE LIMITED, WE FOUND THAT THE INFORMATION SERVICES SEGMENT WAS USED FOR COMPUTATION OF MARGIN IN THE TR ANSFER PRICING STUDY. THE ASSESSEE ITSELF HAS USED IT AS A COMPARABLE IN ITS TRANSFER PRICING STUDY. SINCE FUNCTIONALLY IT IS COMPARABLE WITH THAT OF ASSESSEE, THEREFORE, ASSESSEE'S CONTENTION FOR EXCLUSION OF ICRA ONLINE LIMITED HAS NO MERIT.' ACCORDING LY, THE HON'BLE TRIBUNAL IN DECIDING THAT ICRA ONLINE LTD. IS COMPARABLE TO THE APPLICANT PROCEEDED ON THE ASSUMPTION THAT ICRA ONLINE LTD. IS FUNCTIONALLY COMPARABLE TO THE APPLICANT AND COMPLETELY OVERLOOKED THE ARGUMENTS OF FUNCTIONAL NON - COMPARABILITY OF ICRA ON LINE LTD. RAISED BY THE APPLICANT. IT IS SUBMITTED THAT THE ARGUMENTS/ SUBMISSIONS MADE BY THE APPLICANT ON THE ABOVE MENTIONED ISSUE WAS INADVERTENTLY NOT DEALT WITH BY THE HON'BLE TRIBUNAL. 3. WE HAVE CONSIDERED RIVAL CONTENTIONS AND GONE TH ROUGH THE MISCELLANEOUS APPLICATION AS WELL AS ORDER PASSED BY THE TRIBUNAL. WE MA NO.81/15 3 FOUND THAT AFTER CONSIDERING THE MATERIAL PLACED ON RECORD, THE TRIBUNAL REACHED TO THE CONCLUSION THAT ICRA ONLINE LIMITED WAS FUNCTIONALLY COMPARABLE WITH THAT OF THE ASSESS EE AND THE ASSESSEE ITSELF HAS USED IT AS A COMPARABLE IN ITS TRANSFER PRICING STUDY. ACCORDINGLY, THE CONTENTION OF THE ASSESSEE FOR EXCLUDING ICRA ONLINE LIMITED FROM THE LIST OF COMPARABLES WAS DECLINED BY THE TRIBUNAL. UNDER SECTION 254(2) ONLY APPARE NT MISTAKE CAN BE RECTIFIED, ISSUE REQUIRING DETAILED DELIBERATION CANNOT BE DECIDED U/S.254(2) OF THE ACT. HENCE, WE DO NOT FIND ANY MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL. 4 . IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 10/07 /2015. 10/07 /2015 S D/ - SD/ - ( ) ( VIJAY PAL RAO ) ( . . ) ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 06/07 /2015 . . /PKM , . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDE NT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY//