M/s FMC India Private Limited, Bangalore V. The Deputy Commissioner of Income Tax, Circle-11(3), Bangalore

MA 92/BANG/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 6730 (ITAT-BANGALORE)
• Duration Of Justice: 6 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-09-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 20-02-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUNDAR R AJAN CIT BENGALURU
• Assessee Lawyers: PRADHAN DASS
• Keywords: Transfer pricing; Opportunity of being heard; Set aside
• Section: 254(2); 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, BANGALORE BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER [ M P NO. 9 2 /B ANG /20 20 (IN IT (PT) A NO. 1529 /B ANG /20 1 4 )] (ASSESSMENT YEAR: 20 09 - 1 0 ) M/S FMC INDIA PVT. LTD., EMBASSY STAR, 8, PALACE ROAD, HIGH GROUNDS, BANGALORE 560052. PAN: AAACF 4579 N APPLICANT VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE - 11(3), BENGALURU . RESPONDENT APPLICANT BY : SHRI. PRADHAN DASS, CA REVENUE BY : SHRI. SUNDAR RAJAN, ADDL. CIT (DR)(ITAT), BENGALURU DATE OF HEARING : 04/09/2020 DATE OF PRONOUNCEMENT : 11 /09/2020 O R D E R PER A. K. GARODIA, AM: THIS MISCELLANEOUS PETITION (MP) IS FILED BY THE ASSESSEE IN WHICH IT IS STATED THAT THERE ARE CERTAIN APPARENT MISTAKES IN THE IMPUGNED TRIBUNAL ORDER WHICH SHOULD BE RECTIFIED UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED THE ACT). 2. IN THE COURSE OF HEARING, IT WAS SUBMITTED BY LEARNED AR OF THE ASSESSEE THAT IN PARA 2.2 OF THE MP, ASSESSEE HAS NARRATED THE ALLEGED APPARENT MISTAKES IN THE TRIBUNAL ORDER, WHICH READS AS UNDER: MP NO. 92/BANG/2020 (IN IT(PT)A NO.1529/BANG/2014) PAGE 2 OF 6 2.2 THAT THE APPELLANT BEING AGGRIEVED WITH THE ORDER OF LD. CIT(A), FILED APPEAL BEFORE THE HON'BLE TRIBUNAL AND RELIED, INTER-ALIA, UPON PROVISIONS OF THE LAW AND RELEVANT JUDICIAL PRONOUNCEMENTS (COPIES WHEREOF WERE SUBMITTED IN THE COURSE OF HEARING) IN SUPPORT OF ITS CONTENTIONS AGAINST TRANSFER PRICING ADJUSTMENTS IN BOTH THE R&D AND LITHIUM SEGMENT. HOWEVER, IT IS OBSERVED THAT AS PER THE ORDER OF THE HON'BLE TRIBUNAL, IT SEEMS THAT THE HON'BLE TRIBUNAL HAS INADVERTENTLY OMITTED TO CONSIDER THE REVISED GROUND OF APPEAL FILED BY THE APPELLANT ON 11TH DECEMBER, 2017 (COPY ENCLOSED HEREWITH AS ANNEXURE 1) AND INSTEAD REFERRED TO THE ORIGINAL GROUNDS, WHICH THE BENCH ITSELF HAD RECOMMENDED TO BE REDRAFTED DURING THE COURSE OF HEARING HELD ON 5TH DECEMBER 2017, THEREBY STATING IN THE ORDER THAT CERTAIN GROUNDS WERE MISSING AND ALSO CONSIDERING GROUND NUMBER 5 AS GROUNDS PERTAINING TO LITHIUM SEGMENT, WHEREAS IN FACT IN BOTH ORIGINAL AND REVISED GROUNDS, GROUND NUMBER 4 PERTAINS TO THE LITHIUM SEGMENT 3. THE BENCH POINTED OUT THAT AS PER THE APPEAL FILE, ALTHOUGH REVISED GROUNDS ARE FILED BY THE ASSESSEE BEFORE THE TRIBUNAL CONTAINING 12 GROUNDS OF APPEAL WHEREAS THERE WERE 13 GROUNDS OF APPEAL IN THE ORIGINAL GROUNDS FILED BY THE ASSESSEE BUT IN THE COURSE OF HEARING OF THE APPEAL, LEARNED AR OF THE ASSESSEE HAS MADE AN ENDORSEMENT ON THE ORIGINAL GROUNDS FILED BY THE ASSESSEE THAT HE IS PRESSING GROUND NOS.3, 4 AND 5 AND THEREFORE, THE TRIBUNAL HAS PROCEEDED TO DECIDE THIS APPEAL AS PER THE ORIGINAL GROUNDS OF APPEAL FIELD BY THE ASSESSEE. PARAS 2 AND 3 OF HE IMPUGNED TRIBUNAL ORDER ARE RELEVANT AND HENCE, ARE REPRODUCED HEREIN BELOW FOR READY REFERENCE: MP NO. 92/BANG/2020 (IN IT(PT)A NO.1529/BANG/2014) PAGE 3 OF 6 2. IN COURSE OF HEARING, IT WAS SUBMITTED BY THE LEARNED AR OF THE ASSESSEE THAT ONLY GROUNDS NOS. 3, 4 AND 5 ARE PRESSED AND HE HAS MENTIONED SO IN THE BODY OF GROUNDS AND SIGNED. ACCORDINGLY, REMAINING GROUNDS AND ADDITIONAL GROUNDS ARE REJECTED AS NOT PRESSED. IT WAS POINTED OUT BY THE BENCH THAT THERE IS NO GROUND NO. 3 BECAUSE AFTER GROUND NO. 2, THERE IS GROUND NO. 4. THE BENCH ALSO POINTED OUT THAT IN GROUND NO. 4, THE GRIEVANCES ARE ABOUT RESEARCH & DEVELOPMENT SEGMENT AND THAT IN GROUND NO. 5, THE GRIEVANCES ARE ABOUT LITHIUM SEGMENT BUT LEARNED AR OF THE ASSESSE DID NOT ADVANCE ANY ARGUMENT REGARDING RESEARCH & DEVELOPMENT SEGMENT AND HENCE, IT IS INFERRED THAT GROUND NO. 4 IS ALSO NOT PRESSED AND SINCE, THERE IS NO GROUND NO. 3, WE ARE REQUIRED TO DECIDE ONLY GROUND NO. 5 REGARDING LITHIUM SEGMENT. REGARDING THIS SEGMENT, IT WAS SUBMITTED BY THE LEARNED AR OF THE ASSESSE THAT IN PARA 8 TO 8.9, LEARNED CIT (A) HAS DECIDED ABOUT THE GRIEVANCES OF THE ASSESSE IN RESPECT OF THIS SEGMENT AND HIS DECISION IS CRYPTIC AND THEREFORE, THE ISSUE ABOUT THIS SEGMENT SHOULD BE RESTORED TO THE FILE OF CIT (A) FOR FRESH DECISION BY WAY OF A SPEAKING AND REASONED ORDER. LEARNED DR OF THE REVENUE SUPPORTED THE ORDER OF CIT (A). 3. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND WE PROCEED TO DECIDE GROUND NO. 5 AND REJECT ALL OTHER GROUNDS INCLUDING ADDITIONAL GROUNDS AS NOT PRESSED. GROUND NO. 5 IS ABOUT LITHIUM SEGMENT FOR WHICH, WE FIND THAT THE ORDER OF CIT (A) IS CRYPTIC AND THEREFORE, WE SET ASIDE THE ORDER OF CIT (A) ABOUT THIS SEGMENT AND RESTORE THE MATTER ABOUT THIS SEGMENT TO THE FILE OF CIT (A) FOR FRESH DECISION BY WAY OF A SPEAKING AND REASONED ORDER AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. 4. IN THE COURSE OF HEARING OF THE MP, THE BENCH POINTED OUT THAT AS PER PARA 2 OF THE IMPUGNED TRIBUNAL ORDER, IT IS STATED BY THE TRIBUNAL THAT THERE IS NO GROUND NO.3 BECAUSE AFTER GROUND NO.2, THERE IS GROUND NO.4 AND IT WAS ALSO POINTED OUT BY THE BENCH MP NO. 92/BANG/2020 (IN IT(PT)A NO.1529/BANG/2014) PAGE 4 OF 6 IN THE COURSE OF HEARING OF THE APPEAL THAT IN GROUND NO.4, THE GRIEVANCES ARE ABOUT R & D SEGMENT AND IN GROUND NO.5, THE GRIEVANCES ARE ABOUT LITHIUM SEGMENT BUT LEARNED AR OF THE ASSESSEE COULD NOT ADVANCE ANY ARGUMENT REGARDING R & D SEGMENT. ON THIS BASIS, THE BENCH INFERRED THAT GROUND NO.4 IS ALSO NOT PRESSED AND PROCEEDED TO DECIDE GROUND NO.5 OF THE ORIGINAL GROUNDS OF APPEAL. LEARNED AR OF THE ASSESSEE SUBMITTED THAT THERE IS NO MISTAKE IN THE TRIBUNAL ORDER REGARDING ITS DECISION IN RESPECT OF GROUND NO.5 AND THE ONLY MISTAKE ALLEGED BY THE ASSESSEE IS REGARDING NON-DECISION IN RESPECT OF GROUND NO.4 RAISED BY THE ASSESSEE WHICH IS REGARDING R & D SEGMENT. HE SUBMITTED THAT THIS IS NOT CORRECT THAT NO ARGUMENT WAS ADVANCED BY LEARNED AR OF THE ASSESSEE IN RESPECT OF R & D SEGMENT AND THEREFORE, THE TRIBUNAL ORDER SHOULD BE RECALLED FOR THE LIMITED PURPOSE OF DECIDING GROUND NO.4 RAISED BY THE ASSESSEE IN THE ORIGINAL GROUNDS OF APPEAL IN RESPECT OF R & D SEGMENT BUT LEARNED AR OF THE ASSESSEE COULD NOT BRING ANY EVIDENCE IN THIS REGARD THAT IN FACT, ARGUMENTS WERE ADVANCED BY LEARNED AR OF THE ASSESSEE WITH REGARD R & D SEGMENT WHILE ARGUING THE APPEAL. LEARNED DR OF THE REVENUE SUBMITTED THAT THERE IS NO APPARENT MISTAKE IN THE IMPUGNED TRIBUNAL ORDER. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND IN THE LIGHT OF ABOVE DISCUSSION, IT IS SEEN THAT THERE IS NO APPARENT MISTAKE IN MP NO. 92/BANG/2020 (IN IT(PT)A NO.1529/BANG/2014) PAGE 5 OF 6 THE IMPUGNED TRIBUNAL ORDER WHICH CAN BE RECTIFIED UNDER SECTION 254(2) OF THE ACT BECAUSE THIS IS THE ONLY CONTENTION RAISED BY LEARNED AR OF THE ASSESSEE THAT THE TRIBUNAL IS NOT CORRECT IN SAYING THAT NO ARGUMENT WAS ADVANCED REGARDING GROUND NO.4 OF THE ORIGINAL GROUNDS OF APPEAL BUT NO EVIDENCE COULD BE BROUGHT ON RECORD BY LEARNED AR OF THE ASSESSEE IN THIS REGARD TO ESTABLISH THAT ARGUMENTS WERE IN FACT ADVANCED BY LEARNED AR OF THE ASSESSEE IN RESPECT OF GROUND NO.4 OF THE ORIGINAL GROUNDS OF APPEAL FILED BY THE ASSESSEE. WE HAVE CHECKED OUR LOG BOOK ALSO AND WE FIND THAT IN THE LOG BOOK, IT IS NOTED THAT PARA NO. 8.9 OF THE ORDER OF CIT (A) WAS REFERRED TO. LEARNED CIT (A) HAS DECIDED THE ISSUE ABOUT LITHIUM SEGMENT AS PER PARA 8 TO 8.9 ON PAGES 25 TO 28 OF HIS ORDER AND IN GROUND NO. 5 BEFORE THE TRIBUNAL, THE ISSUE RAISED IS ABOUT LITHIUM SEGMENT AND THE TRIBUNAL OBSERVED THAT THE ORDER OF CIT (A) ABOUT THIS SEGMENT IS CRYPTIC AND THE TRIBUNAL RESTORED THIS ISSUE TO CIT (A) FOR FRESH DECISION BY WAY OF A SPEAKING AND REASONED ORDER. LEARNED CIT (A) HAS DECIDED THE ISSUE ABOUT R & D SEGMENT AS PER PARA 7 TO 7.9.7.1 OF HIS ORDER RUNNING FROM PAGES 9 TO 25 OF THE ORDER OF CIT (A) AND AS PER OUR LOG BOOK, NO REFERENCE WAS MADE BY THE LEARNED AR OF THE ASSESSEE TO PARA 7 TO 7.9.7.1 OF THE ORDER OF CIT (A) WHERE HE DECIDED THE ISSUE ABOUT R & D SEGMENT BY WAY OF DETAILED DISCUSSION IN 16 17 PAGES HENCE, THE ORDER ABOUT THIS ISSUE IS NOT CRYPTIC AND IN GROUND NO. 4 OF THE MP NO. 92/BANG/2020 (IN IT(PT)A NO.1529/BANG/2014) PAGE 6 OF 6 ORIGINAL GROUNDS RAISED BEFORE THE TRIBUNAL, THE ISSUE RAISED IS ABOUT R & D SEGMENT AND HENCE, WE FIND NO APPARENT MISTAKE IN THIS FINDING OF THE TRIBUNAL THAT NO ARGUMENT WAS MADE BY THE LEARNED AR OF THE ASSESSEE ABOUT R & D SEGMENT AND HENCE, THERE IS NO APPARENT MISTAKE IN THE TRIBUNAL ORDER REGARDING THE INFERENCE THAT GROUND NO. 4 IS ALSO NOT PRESSED. HENCE, WE HOLD THAT THERE IS NO MERIT IN THE MP FILED BY THE ASSESSEE. 6. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- (BEENA PILLAI) JUDICIAL MEMBER (A. K. GARODIA) ACCOUNTANT MEMBER PLACE : BANGALORE DATED : 11 TH /09/2020 /NS/* COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A)-II BANGALORE 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL BANGALORE