SWISS RE SERVICES INDIA P.LTD, MUMBAI V. DCIT CIR 2(3)(2), MUMBAI

MA 93/MUM/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 4259 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2010-2011
• Appeal Filed On: 26-03-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GURBINDER SINGH
• Assessee Lawyers: KAMAL SWAHNEY
• Keywords: Transfer pricing; Rectification of order

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI SHRI SHAMIM YAHYA (AM) & SHRI PAVANKUMAR GADALE ( JM) M.A. NO. 93/MUM/2021 ARISING OUT OF I.T.A. NO. 1898/MUM/2015 (ASSESSMENT YEAR 2010-11) SWISS RE SERVICES INDIA PRIVATE LIMITED A-701, 7 TH FLOOR, ONE BKC PLOT NO. C-66, G-BLOCK BANDRA KURLA COMPLEX MUMBAI-400 051. PAN : AAHCS5626E VS. DCIT, CIRCLE- 2(3)(2) ROOM NO. 552 AAYAKAR BHAVAN M.K. ROAD MUMBAI- 400 020. (APPELLANT) (RESPONDENT) ASSESSEE BY SHRI KAMAL SWAHNEY DEPARTMENT BY SHRI GUR BINDER SINGH DATE OF HEARING 24.09.2021 DATE OF PRONOUNCEMENT 24.09.2021 O R D E R PER SHAMIM YAHYA (AM) :- BY WAY OF THIS MISCELLANEOUS APPLICATION ASSESSEE SEEKS RECTIFICATION OF MISTAKE APPARENT FROM RECORD IN THE ORDER OF THIS T RIBUNAL IN ITA NO. 1898/MUM/2015 VIDE ORDER DATED 6.1.2020 FOR A.Y. 20 10-11. 2. LEARNED COUNSEL OF THE ASSESSEE HAS SUMMARISED M ISTAKES AS UNDER :- THE APPLICANT HUMBLY SUBMITS THAT THE FOLLOWING INADVE RTENT MISTAKES APPARENT FROM RECORD HAVE CREPT IN THE ITAT ORDER FOR AY 2010 - 11: A) INADVERTENT ERROR IN DIRECTING THE APPLICANT TO F URNISH SEGMENTAL DATA FOR DATAMATICS FINANCIAL SERVICES LTD ('DATAMATICS') TO THE TRANSFER PRICING OFFICER ('TPO'); B) NON ADJUDICATION OF GROUND OF APPEAL NO. 1.4 OF THE REVISED GROUNDS OF APPEAL FILED BEFORE THE ITAT ON SEPTEMBER 27, 2019 ON THE ISSUE OF INCORRECT COMPUTATION OF MARGIN OF THE APPELLANT BY THE TPO/DISPU TE RESOLUTION PANEL ('DRP') BY EXCLUDING INCOME IN THE NATURE OF OPERATI NG INCOME FROM MARGIN COMPUTATION. (THE REVISED GROUNDS OF APPEAL FILED ON SEPTEMBER 27, 2019 ARE ATTACHED AS ANNEXURE-2. 2 3. AT THE OUTSET IT IS THE CONTENTION OF THE ASSESS EE THAT THE DELAY IN FILING THIS MISCELLANEOUS APPLICATION IS ATTRIBUTABLE TO T HE INTERVENING PERIOD OF COVID-19 PANDEMIC FOR WHICH PERIOD OF DEFAULT STAND S EXCLUDED ON THE TOUCHSTONE OF THE HON'BLE SUPREME COURT DECISION IN SUO MOTU WRITE PETITION (CIVIL) NOS. 3/2020 VIDE ORDER DATED 23.3. 2020 4. LEARNED DEPARTMENTAL REPRESENTATIVE FAIRLY AGREE D TO THE ABOVE. ACCORDINGLY, THIS MISCELLANEOUS APPLICATION IS TAKE N UPON FOR ADJUDICATION. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS. FIRST MISTAKE POINTED BY LEARNED COUNSEL OF THE ASSESSEE IS THAT THE ITAT IN ITS ORDER IN PARAGRAPH 25 HAS DULY ACCEPTED THE ASSESSEES PLEA THAT THE DATAMATICS SHOULD BE INCLUDED AS COMPARABLE. HOWEVER, IT IS TH E ASSESSEES COUNSEL SUBMISSION THAT THE ITAT HAS INADVERTENTLY MENTIONE D THAT THE ASSESSEE IS DIRECTED TO PROVIDE SEGMENTAL DATA FOR ITES SERVICE S OF DATAMATICS. IN THIS REGARD LEARNED COUNSEL OF THE ASSESSEE CONTENDS THA T THE DATAMATICS HAS GOT ONLY ONE SEGMENT AND THERE IS NO SEPARATE SEGMENT F OR ITES. HENCE, HE SUBMITTED THAT THERE IS MISTAKE NEEDS TO BE CORRECT ED. 6. UPON CAREFULLY CONSIDERATION WE FIND THAT IF IT IS A PLEA OF THE ASSESSEE THAT DATAMATICS DOES NOT HAVE ANY SEPARATE SEGMENT FOR ITES THEN IT WILL BE IMPOSSIBLE FOR THE ASSESSEE TO COMPLY THIS DIRECTIO N. HENCE, WE RECALL THE ORDER OF THE ITAT TO THIS EXTENT TO CONSIDER APPROP RIATENESS OF THE DIRECTION THAT THE ASSESSEE IS DIRECTED TO PROVIDE SEGMENTAL DATA FOR ITES SERVICES OF DATAMATICS AS MENTIONED IN PARAGRAPH 25 OF THE ITAT ORDER. 7. ANOTHER MISTAKE POINTED OUT BY LEARNED COUNSEL O F THE ASSESSEE IS THAT THE ASSESSEE HAS PLEADED THAT THE AUTHORITIES BELOW HAVE ERRED IN EXCLUDING INCOME IN THE NATURE OF OPERATING INCOME FROM MARGIN COMPUTATION. LEARNED COUNSEL CONTENDS THAT IN THIS REGARD DURING THE HEARING HE HAD CONFINED HIMSELF TO THE PLEA THAT PR OVISION FOR DOUBTFUL DEBT WRITTEN BACK SHOULD BE CONSIDERED AS OPERATING INCO ME AND TO THIS AFFECT ASSESSEES COUNSEL HAD REFERRED TO CERTAIN CASE LAW S FROM THE TRIBUNAL. 3 8. UPON CAREFUL CONSIDERATION WE NOTE THAT IN THE A FORESAID ITAT ORDER THIS ISSUE HAS NOT BEEN SPECIFICALLY ADJUDICATED. T O THIS EXTENT THERE IS A MISTAKE APPARENT FROM RECORD. HENCE, IN THE INTERES T OF JUSTICE, WE RECALL THE AFORESAID ITAT ORDER FOR ADJUDICATION OF GROUND NO. 1.4 IN THE REVISED GROUNDS OF APPEAL. 9. IN THE RESULT, THIS MISCELLANEOUS APPLICATION IS ALLOWED IN AS MUCH AS AFORESAID ITAT ORDER IS RECALLED TO CONSIDER AFORES AID TWO MISTAKES POINTED OUT BY THE ASSESSEE. PRONOUNCED IN THE OPEN COURT ON 24.9.2021. SD/- SD/- (PAVANKUMAR GADALE) (SHAM IM YAHYA) JUDICIAL MEMBER ACCO UNTANT MEMBER MUMBAI; DATED : 24/09/2021 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR) PS ITAT, MUMBAI