Income Tax Appellate Tribunal - Mumbai
Symantec Softwate Solutions P.Ltd , vs Assessee on 17 May, 2013
IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH "B", MUMBAI
BEFORE SHRI I.P.BANSAL,JUDICIAL MEMBER &
SHRI N.K.BILLAIYA, ACCOUNTANT MEMBER
MA NO.769/MUM/2012
(Arising out of ITA No.8673/MUM/2011,A.Y. 2007-08)
M/s. Symantec Software Solutions Assistant Commissioner of
Private Ltd., Income Tax 10(1),
Unit 430, C-Wing, 4th Floor, Vs. Room No.455, 4th Floor,
Fortune 2000, Bandra-Kurla Aaykar Bhavan, MK Road,
Complex, Bandra (E), Mumbai - 400 020
Mumbai - 400 051
PAN: AABCV 2624B
(Applicant) (Respondent)
Applicant by : Shri S/Shri Rajan Vora/Heman Chandarya
Respondent by : Shri Manoj Kumar
Date of hearing : 17/05/2013
Date of pronouncement : 17/05/2013
ORDER
PER I.P.BANSAL, J.M,
The aforementioned miscellaneous application is filed by the assessee contending that there are several mistakes in the order dated 27/6/2012 passed by this Tribunal in ITA No.8673/Mum/2011.
2. While arguing the aforementioned miscellaneous application, Ld. AR, pointed out to the following mistakes which according to him are required to be rectified:
(i) In Para 8.9 the Tribunal has erred in mentioning an amount of Rs.47,49,719/- which according to the facts of the case should be an amount of Rs.44,24,452/-.2 MA NO.769/MUM/2012
(Arising out of ITA No.8673/MUM/2011,A.Y. 2007-08)
(ii) While deciding Ground No.12 which is decided by Para 8.9 the Tribunal has failed to take into consideration the arguments of the assessee that such expenses relating to travelling to Singapore were also in the nature of reimbursement. It is the contention of Ld. A.R that while dealing with similar disallowance in respect of Ground No.11, the Tribunal had directed the Ld. DRP to examine the issue regarding reimbursement and similar directions have not been given in respect of Ground No.12.
(iii) In para 3 & 4.2 while mentioning the mean margin of comparables there is a typographical error as in Para- 3 the mean margin has been mentioned at 26.39% and in Para 4.2 it is mentioned as 26.50%, whereas both these figures should be 26.59%.
(iv) In Para-6 there is a typographical mistake while recording the contention of the assessee. The relevant extract from the order of the Tribunal is as under:
"The contention of the assessee that the loss making companies which have been excluded being not persistent loss making companies should be excluded is also required to be examined in detail."
It is the contention of Ld. AR that the contention of the assessee should have been recorded in the following word:-
"The contention of the assessee that the loss making companies which have been excluded being not persistent loss making companies, should not be excluded, is also required to be examined in detail."
(v) In Para-3 while recording the figure in respect of marketing services the figure written at Rs.35,11,78,733/- should be a sum of Rs.38,71,78,733/- and to support such contention reference was made to the order passed by TPO under section 192CA(3) of the Act.
3. It may be mentioned here that though the application contain some other grievances also but at the time of hearing it was submitted by Ld. A.R that as the 3 MA NO.769/MUM/2012 (Arising out of ITA No.8673/MUM/2011,A.Y. 2007-08) matter has been restored back to the file of Ld. DRP those mistakes may not have much bearing upon the appeal filed by the assessee.
4. We have heard both parties on the aforementioned mistakes and our decisions with regard to the same is as under:
(i) So far as it relates to first mistake the figure taken by the Tribunal in Para 8.9 has been taken from the order passed by Ld. DRP. Therefore, the mistake, if any, is in the order of Ld. DRP and not in the order of the Tribunal. This being not a mistake apparent from record is declined to be rectified.
(ii) The issue regarding travelling expenses to Singapore has also been restored back to the file of Ld. DRP. Though it is not specifically directed to examine the contention of the assessee regarding reimbursement of these expenditure, however, Ld. DRP is also not precluded to examine the same as it will be open to the assessee in the restored proceedings to furnish its case and Ld. DRP is bound to decide the same as per provisions of law. Therefore, there is no mistake on this issue also and we decline to accept the request of the assessee to rectify the same as it does not fall within the category of mistake apparent from record as envisaged in section 254(2) of the Act..
(iii) We have gone through the mistake pointed out by Ld. A.R. As per table TPO had determined the mean margin of 26.59%. However, in Para 3& 4.2 this has wrongly been typed as 26.39% and 26.50% respectively. The same being obvious mistake is accepted to be rectified and percentage written in Para 3 & 4.2 as 26.39% and 26.50% will be replaced with 26.59%.
(iv) We have heard both the parties on this issue and after careful consideration we are of the opinion that the relevant text in Para 6 should be replaced with the text given by the assessee which is also reproduced above.
4 MA NO.769/MUM/2012(Arising out of ITA No.8673/MUM/2011,A.Y. 2007-08) This is only a typographical mistake and the relevant text in the order of the Tribunal is replaced with the following text:
"The contention of the assessee that the loss making companies which have been excluded being not persistent loss making companies, should not be excluded, is also required to be examined in detail."
(v) We have verified it from the order of TPO and figure of Rs.35,11,78,733/- is replaced with the figure of Rs.38,71,78,733/-.
Accordingly the miscellaneous application filed by the assessee is partly allowed in the manner aforesaid.
Order pronounced in the open court on the 17th Day of May, 2013.
Sd/- Sd/- (N.K.BILLAIYA ) (I.P.BANSAL) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Dated. 17th May, 2013.
Copy to: 1. The Applicant 2. The Respondent 3. The CIT City -concerned
4. The CIT(A)- concerned 5. The D.R" B" Bench.
(True copy) By Order
Asst. Registrar, ITAT, Mumbai Benches
MUMBAI.
Vm.