DCIT (IT) RG 4(2)(2), MUMBAI V. SOCIETE GENERALE, MUMBAI

MA 853/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6615 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-05-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: K
• Assessment Year: 2010-2011
• Appeal Filed On: 17-11-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAM TIWARI SR

Judgement Text

, INCOME-TAX APPELLATE TRIBUNAL -KBENCH MUMB AI , , ,, , BEFORE S/SHRI RAJENDRA,ACCOUNTANT MEMBER AND PAWAN SINGH,JUDICIAL MEMBER MA NO.853/MUM/2017 A/O/O / ITA NO.1854/MUM/2015 : /ASSESSMENT YEAR-2010-11 DY. COMMISSIONER OF INCOME TAX (IT), RANGE: 4(2)(2), ROOM NO. 120, SCINDIA HOUSE, BALLARD ESTATE, N.M. ROAD, MUMBAI- 400 038. VS. M/S. SOCIETE GENERALE, 1901/1902 TOWER A, PENINSULA BUSINESS PARK, SENAPATI BAPAT MARG, LOWER PAREL, MUMBAI 400 013. PAN : AABCS 7484C (APPELLANT) (RESPONDENT) / REVENUE BY: SHRI RAM TIWARI-SR.DR / ASSESSEE BY: NONE / DATE OF HEARING: 04.05.2018 / DATE OF PRONOUNCEMENT: 04.05.2018 /ORDER , / PER RAJENDRA A.M. - VIDE ITS APPLICATION, DATED 17.11.2017,THE ASSESSI NG OFFICER ( AO) HAS STATED THAT THERE WERE CERTAIN MISTAKES IN THE ORDER OF THE TRIBUNAL, DATE D 19/4/2017, THAT SAME WERE TO BE RECTIFIED AS PER THE PROVISIONS OF SECTION 254(2) OF THE ACT, THAT WHILE DECIDING LAST GROUND OF APPEAL , RAISED BY THE ASSESSEE, ABOUT ADJUSTMENT OF RS.67. 28 LAKHS TO THE SALES CREDIT COMMISSION EARNED, THE TRIBUNAL HAD REFERRED TO ITS OWN ORDER FOR AY 2008-09 (ITA/7658/MUM/2012 DTD.22/11/2013), THAT FOLLOWING THE ABOVE ORDER OF THE TRIBUNAL THE ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE, THAT THE TRIBUNAL WHILE ADJ UDICATING THE APPEAL FOR 2008-09 HAD RESTORED BACK THE ISSUE OF CREDIT COMMISSION EARNED ON SALE OF TREASURY PRODUCTS TO THE FILE OF AO FOR FRESH ADJUDICATION . 2. DURING THE COURSE OF HEARING BEFORE US, THE DEPARTM ENTAL REPRESENTATIVE ( DR) REITERATED THE ARGUMENTS THAT ARE PART OF THE MA AND STATED THAT T HE LAST LINE ON PG-7 OF THE ORDER OF THE TRIBUNAL REQUIRED TO BE SUITABLY MODIFIED. NONE APP EARED ON BEHALF OF THE ASSESSEE, AS STATED EARLIER. 3. WE HAVE PERUSED THE MATERIAL ON RECORD. WE FIND THA T WHILE DECIDING LAST GROUND OF APPEAL WE HAVE OBSERVED AS UNDER: RESPECTFULLY, FOLLOWING THE ABOVE LAST GROUND IS DECIDED IN FAVOUR OF THE ASSESSEE . MA NO.853/MUM/2017- M/S. SOCIETE GENERALE 2 3.1. WE FIND THAT WE HAD FOLLOWED THE ORDER OF THE TRIBU NAL FOR AY. 2008-09 (SUPRA), WHEREIN THE TRIBUNAL HAD, AT PARA 15, HAD HELD AS UNDER :- 15. A PERUSAL OF THE ORDER OF THE DRP AS WELL AS TH AT OF THE TPO PASSED IN THE REMAND PROCEEDINGS, HOWEVER, SHOWS THAT THESE OBJECTIONS SPECIFICALLY R AISED BY THE ASSESSEE HAVE NOT BEEN CONSIDERED AND THIS POSITION IS NOT DISPUTED EVEN BY THE LD. DR AT THE TIME OF HEARING BEFORE US. WE, THEREFORE, CONS IDER IT FAIR AND PROPER AND IN THE INTEREST OF JUSTICE T O SET ASIDE THIS MATTER TO THE A.O./TPO WITH A DIRE CTION TO CONSIDER THE SAID OBJECTIONS OF THE ASSESSEE AND RECOMPUTE THE AVERAGE MARGIN OF THE COMPARABLES AFTER TAKING INTO CONSIDERATION THE SAID OBJECTIONS . WE ALSO DIRECT THE A.O./TPO TO APPLY THE AVERAGE MARGIN OF COMPARABLES SO RECOMPUTED TO THE OPERATIN G COST OF THE ASSESSEE RELATING TO ITS RELEVANT TRANSACTIONS WITH ITS AES IN ORDER TO DETERMINE THE ALP OF THE SAID TRANSACTION AS WELL AS THE TP ADJUSTMENT TO BE MADE IN RESPECT OF SUCH TRANSACTIO NS.NEEDLESS TO OBSERVE THAT THE A.O. SHALL OFFER PROPER AND SUFFICIENT OPPORTUNITY TO THE ASSESSEE O F BEING HEARD ON THIS MATTER.GROUND NO. 3 OF THE ASSESSEES APPEAL IS ACCORDINGLY TREATED AS ALLOWED FOR STATISTICAL PURPOSE. CONSIDERING THE ABOVE, WE DIRECT THAT LAST LINE OF OUR ORDER AT PG-7 SHOULD BE READ AS UNDER :- RESPECTFULLY FOLLOWING THE ABOVE LAST GROUND OF A PPEAL IS DECIDED IN FAVOUR OF THE ASSESSEE, IN PART.FOLLOWING THE ABOVE ORDER FOR AY. 2008-09, WE DIRECT THE AO TO DECIDE THE ISSUE AFRESH AFTER AFFORDING A REASONABLE OPPORTUNITY TO THE ASSESSEE . AS A RESULT, MISCELLANEOUS APPLICATION FILED BY THE AO STANDS ALLOWED. ! ! ! ! '# '# '# '# $%&' $%&' $%&' $%&' . .. . ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH MAY, 2018. ' '' ' $( $($( $( ' % ' % ' % ' % 4 , 2018 ' '' ' SD/- SD/- ( /PAWAN SINGH ) ( / RAJENDRA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED :. 04.05.2018 JV.SR.PS. /COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4.THE CONCERNED CIT / 5. DR K BENCH, ITAT, MUMBAI / , , . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.