M/S. DIAMOND DYE CHEM. LTD., V. ACIT 6(2),

MA 92/MUM/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6415 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: L
• Assessment Year: 2003-2004
• Appeal Filed On: 14-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A LEXANDER CANDY
• Keywords: Transfer pricing

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH L BEFORE SHRI R.S. SYAL (AM) & SHRI V. DURGA RAO (JM) M.A.NO.92/MUM/2011 (ARISING OUT OF I.T.A.NO.6547/MUM/2006 (A.Y. 2003-04) M/S. DIAMOND DYE-CHEM LTD., BLDG. NO.3, CIBA RESEARCH CENTRE, OFF AAREY RD., GOREGAON (E), MUMBAI-400 063. PAN: AAACD3478N VS. ASST. COMMR. OF INCOME-TAX, RANGE-6(2), AAYKAR BHAVAN, M.K.ROAD, MUMBAI APPLICANT RESPONDENT APPLICANT BY S/SHRI DHANESH BAFNA & ALIASGAR RAMPURAWALA. RESPONDENT BY SHRI A LEXANDER CANDY. O R D E R PER R.S. SYAL, AM : BY THIS MISC. APPLICATION, THE ASSESSEE REQUESTS THAT THE TRIBUNAL ORDER DATED 05-01-2011 IN ITA NO. 6547/MUM/2006 CONTAINS CERTAIN MISTAKE, WHICH SHOULD BE RECTIFIED. 2. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT THE TRIBUNAL WHILE DECIDING THE 3 RD GROUND OF THE REVENUES APPEAL HAS INADVERTENTLY NOTED THAT THE TRIBUNAL HAD DECIDED THIS ISSUE AGAINST THE ASSESSEE IN THE PRECEDING YEAR. REFERRING TO THE COPY OF THE ORDER OF THE TRIBUNAL FOR THE SAID PRECEDING YEAR REPORTED AT 2010-TIOL-47-ITAT-MUM, THE LD. COUNSEL DEMONSTRATED THAT THE SAME ISSUE HAS BEEN DISCUSSED IN PARA NO. 3 OF THE ORDER AND THE D ECISION HAS BEEN RECORDED IN PARA NO. 8 UPHOLDING THE CIT(A)S ORDER ON THIS ISS UE, WHO HAD DECIDED THE MA NO.92/M/11 DIAMOND D YE- CHEM LTD. 2 CONTROVERSY IN THE ASSESSEES FAVOUR. IT WAS, THER EFORE, CONTENDED THAT THAT SIMILAR GROUND RAISED BY THE REVENUE IN THIS YEAR O UGHT TO HAVE BEEN DISMISSED. 3. THE LD. D.R. DID NOT RAISE ANY OBJECTION TO IT. 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD, IT IS NOTICED THAT THE GROUND REGARDING REDUCTION OF 5% OF ARMS LENGTH PRICE IN VIEW OF PROVISO TO SEC. 92C(2) WAS, IN FACT, DECIDED BY THE TRIBUNAL IN THE IMMEDIATELY PRECEDING YEAR IN ASSES SEES FAVOUR. AS THE ISSUE RAISED BY THE REVENUE IN THIS YEAR THROUGH GROUND NO. 3 IS MUTATIS MUTANDIS SIMILAR TO THAT OF THE PRECEDING YEAR, THIS GROUND SHOULD HAVE BEEN DISMISSED INSTEAD OF BEING ALLOWED. WE, THEREFORE, MAKE THE A MENDMENT IN THE IMPUGNED ORDER, AS A RESULT OF WHICH PARAGRAPH NOS.8 AND 9 WOULD NOW READ AS UNDER : 8. THE LAST GROUND IS AGAINST THE REDUCTION OF 5% ARMS LENGTH PRICE IN VIEW OF PROVISO TO SEC. 92C(2). HERE ALSO, THE LEAR NED A.R. STATED THAT THE TRIBUNAL HAS DECIDED THIS ISSUE IN FAVOUR OF THE A SSESSEE IN THE PRECEDING YEAR. RESPECTFULLY FOLLOWING THE TRIBUNAL ORDER ON THE SAME ISSUE IN ASSESSEES OWN CASE, WE UPHOLD THE IMPUGNED ORDER O N THIS SCORE. THIS GROUND IS NOT ALLOWED. 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED AND THAT OF THE ASSESSEE IS PARTLY ALLOWED. 5. IN THE RESULT, THE MISC. APPLICATION IS ALLOWED IN ABOVE TERMS. ORDER PRONOUNCED ON THE 27 TH DAY OF MAY, 2011. SD/- SD/- (V. DURGA RAO) (R.S. SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 27 TH MAY , 2011. NG: MA NO.92/M/11 DIAMOND D YE- CHEM LTD. 3 COPY TO : 1. DEPARTMENT. 2.ASSESSEE. 3 CIT(A)-VI,,MUMBAI. 4 CIT,MUMBAI CITY-VI,MUMBAI. 5.DR,L BENCH,MUMBAI. 6.MASTER FILE. (TRUE COPY) BY ORDER, ASST.REGISTRAR, ITAT, MUMBAI. MA NO.92/M/11 DIAMOND D YE- CHEM LTD. 4 DETAILS DATE INITIALS DESIGN ATION 1. DRAFT DICTATED ON 27-05-11 SR.PS/ 2. DRAFT PLACED BEFORE AUTHOR 27-05-11 SR.PS/ 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/ 6. KEPT FOR PRONOUNCEMENT ON SR.PS/ 7. FILE SENT TO THE BENCH CLERK SR.PS/ 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9. DATE ON WHICH FILE GOES TO THE AR 10. DATE OF DISPATCH OF ORDER *