TaxTMI 
TaxTMI 
2022 (1) TMI 1390
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....e 'A'] 2. As regard Grounds of Appeal Nos. 35 to 38 of the Revenue's appeal: 2.1. We wish to respectfully submit that the Ground Nos. 35 to 38 of the Revenue's appeal have been adjudicated together in the Appellate order in Para 155. However, the mention of Ground No. 38 in Para 66 on Page 38 of the order has inadvertently been omitted. Prayer 1: It is therefore, prayed that for the sake of clarity Para 66 on Page 38 of ITAT order be modified to include Ground No 38 of the Revenue's appeal. 2.2. We wish to further respectfully submit that the Ground Nos. 35 and 36 of the Revenue's appeal are in connection with comparables, i.e. exclusion of Allsec Technologies and inclusion of Axis Integrated Systems Limited, respectively. 2.3. Your Honours have dismissed all 4 grounds of appeal (i.e. ground of appeal no 35 to 38) of the revenue together vide para 155 of the order, however there are certain factual discrepancies which may kindly be rectified as under: a. As regards Ground No 35, on the comparable Allsec Technologies Ltd, it is humbly submitted that the Learned Commissioner of Income-tax (Appeals) ["the CI....
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....the said Para 155 of the ITAT order. However, there is no specific finding given on both these comparables. 2.6. Prayer 3: It is therefore, prayed that for the sake of clarity, a clear finding may be given in para 155 of the ITAT order that the revenues appeal in Ground Nos. 37 and Ground No. 38 has been rejected and order of the Learned CIT(A) deciding M/s. Empire Industries Limited as a valid comparable and rejecting M/s, BVG India Limited as a comparable, is upheld. 3. Further, the ld. Counsel of the assessee has made further submissions in this regard as under:- 1. The Department had challenged the first appellate order in their appeal, bearing ITA No. 136/Mum/2018. In relation to the validity of the several comparables, while benchmarking Business Support Services and Management Support Services availed and given by the Assessee. The Department had raised following grounds on validity of four comparables: i. Ground No. 35, objecting to the inclusion of comparable "Allsec Technologies Ltd." ii. Ground No. 36, objecting the exclusion of "Axis Integrated Systems Ltd.", iii. Ground No. 37, challenging inclusion of comparable "Empire ....
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....ble "Axis Integrated Systems Ltd." has also been dismissed. 10. As regard Ground No. 37 and 38 of Revenue's appeal, in Para 155, on Pg. 103 of the ITAT order, the comparables "Empire Industries Ltd" and "BVG India Limited", have been considered while adjudicating the issue of selection of correct comparables, in the first 6 lines of the Para 155 of the ITAT order. Hence, it is also clear that Ground No. 37 and 38 of the Department's appeal is also dealt with in Para 155 of the ITAT order and has also been dismissed. 11. Even so, the Department, while giving effect to the ITAT order, is reluctant to accept the same and is interpreting that the decision in relation to ground no. 35 to 38 has not been taken by the Hon'ble Bench. 12. In view of the aforesaid difficulty, the Applicant Assessee is requesting the Hon'ble Bench to: a) include Ground No. 38 in para 66 of the order to clarify that the Ground No. 38 is also dealt with the ground no. 9 of the Assessee's Appeal; and/or b) expressly mention the ground numbers 35 to 38 while dismissing the revenue's grounds on Pg. 103 in Para 155 of the ITAT order; and ....
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....erred in rejecting the comparable companies namely Cameo Corporate Services Limited, Neilsoft Limited and Goldmine Advertising Limited without providing any cogent reasons. 9.3 On the facts and in the circumstances of the case, the learned CIT(A) erred in confirming the action of the learned AO in cherry picking the comparable company namely Asian Business Exhibition & Conference Limited. 5. The ITAT has dealt with the issues as under:- Para 66. The Revenue's ground No. 35,36 & 37 are related to ground No. 9 in assessee's appeal. We are dealing with these grounds in ground No. 9 of the assessee dealt with in assessee's appeal. Para 145 to 156 Ground No. 9 9. Availing of Business Support Services ('BSS') from RCITPL: 9.1 On the facts and in the circumstances of the case and in law, the learned AO erred in making and the learned CIT(A) erred in determining the arm's length mark-up of 8.20% on the cost of the services without considering the mark-up of 5.90% as determined by the Appellant and proposing the transfer pricing adjustment of INR 3,40,64,984; ; 9.2 The learned CIT(A) erred in rejecting th....
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....r dated 18 October 2016 gave reply to the show cause notice of the TPO, objecting to the comparables selected by the TPO. The TPO determined the arm's length margin of 18.09% on cost and proposed an transfer pricing adjustment of INR 13,93,47,074/-. The comparables relied upon by the learned TPO are as under: Sr. No Name of comparable company NCP (%) 1 BVG India Limited 24.08 2 Asian Business Exhibition & Conferences Limited 12.09 Average 18.09 The assessee vide letter dated 6 December 2016 filed a rectification application with the TPO, requesting to rectify the margin of the alleged comparable company M/s. BVG India Limited from 24.08% to 22.49% (correct margin). The TPO recomputed the margin and revised it to 23.47%, accordingly the arm's length margin was revised to 17.78% restricting the alleged adjustment to INR 13,60,47,029/-. 150. Upon the assessee's appeal, the learned CIT(A) gave part relief by retaining some of the comparables. He held as under :- "I have carefully perused the order of the TPO and the submissions made by the Appellant during the course of the Appellate proceedings and the f....
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....s, activation, road shows, digital and publications entail completely different set off employee skills and are not comparable. 154. As regards the revenues grounds the learned counsel of the assessee relies upon assessee submission before the learned CIT(appeals). The learned counsel submits that the learned CIT(appeals) has appreciated the submissions and given a finding of facts which have not been controverted by the revenue. 155. Upon careful consideration as regards the revenues grounds relating to comparables namely empire industries Ltd and BVG India Ltd, we note that assessee has given cogent submissions before the learned CIT(appeals). The learned CIT(appeals) has duly appreciated the submissions and found the voracity thereof. The revenue has not produced any cogent submission rebutting the finding of the learned CIT(appeals). As regards Alsec Technologies the revenue's ground is misplaced as TPO himself has excluded it from final comparable. Moreover, as pointed out by learned Counsel of the assessee that the ITAT in assessee's own case for A.Y. 2012-13 has held that this is not a valid comparable to assessee. Hence the grounds raised by the revenue in....
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....the assessee submission that exclusion of Axis Integrated Systems Ltd. is also adjudicated by the Tribunal is not correct. Since, this ground raised by the revenue has not been adjudicated, we recall ground No. 36 of revenue appeal for fresh adjudication. 9. This miscellaneous application is partly allowed. M.A.No.114/Mum/2021:- 10. The submissions of the assessee in this miscellaneous application are as under:- 1. The Applicant is in receipt of the order of the Income-tax Appellate Tribunal dated 10.11.2020, on 03.12.2020, in respect of the Assessee's appeal in ITA No. 7299/M/2019 and Department's appeal in ITA No.136/Mum/2018 (hereinafter referred as "the ITAT order"). On scrutiny of the said order, the Applicant observes that there is following apparent mistake rectifiable u/s. 254{2) of the Act. [Copy of ITAT order is attached herewith as Annexure 'A'] 2. As regard Additional Ground of Appeal No. 6 of Assessee's Appeal: 2.1. The Applicant Assessee had filed this ground of appeal, vide its letter dated 29.03.2019, for claiming long term capital loss on sale of equity and certain preference shares to its subsidiary company w....
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....Loss along with the relevant Annexures 7-11 4 Copy of statement showing computation of the Long Term Capital Loss in question before your honours vide additional grounds of appeal 12 12. The letter dated 29.03.2018 by which assessee had filed application from additional ground No.6 of appeal read as under:- "We refer to the appeal no ITA 7299/ MUM/ 2017 preferred by the Appellant before the Hon'ble ITAT Members - 'J' Bench, which is fixed for hearing on 1st April 2019 In this connection, we had vide our letters dated 13 12.2018 and 1803.2019, filed 5 additional grounds of appeal We now wish to file a 6"' additional ground of appeal which is enclosed as Annexure -1 The Appellant humbly submits that the additional ground No 6 ts purely legal in nature and all the facts are on record. Considering that the Appellate authorities have jurisdiction to entertain claim which were not made before lower authorities or in return of income and relying on the Hon'ble Supreme Court judgement in the case of National Thermal Power Company Ltd (229 ITR 383). we request your Honour to kindly grant leave for admission of the additi....
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....ate Tribunal, Mumbai - 'J' Bench. The said 6th ground of appeal (additional ground) was tendered by me during the course of hearing on 1st April 2019 in the said ITA no ITA 7299/ MUM/ 2017." 15. Upon careful consideration, we note that the mistake apparent from the record has crept in the order of this Tribunal inasmuch as the aforesaid additional ground was not adjudicated by the Tribunal. Hence, there is a mistake apparent from the record. However in an MA, the ground on merits cannot be adjudicated. In this regard, we draw support from the following exposition by Hon'ble Apex Court in the case of CIT vs. Reliance Communication Ltd. In Writ appeal No. 7110/2021 vide order dated 03/12/2021. "In exercise of powers under section 254(2) of the Act, the Appellate Tribunal may amend any order passed by it under sub-section (1) of Section 254 of the Act with a view of rectifying any mistake apparent from the record only. Therefore, the powers under section 254(2) of the Act are akin to order XLVII Rule 1 CPC. While considering the application under section 254(2) of the Act, the Appellate Tribunal is not required to re-visit its earlier order and to go into detail on....