Income Tax Appellate Tribunal - Ahmedabad
The Acit., Central Circle-1,, Baroda vs Sun Pharmaceuticals Industries Ltd.,, ... on 28 September, 2018
आयकर अपील य अ
धकरण, अहमदाबाद यायपीठ - अहमदाबाद ।
IN THE INCOME TAX APPELLATE TRIBUNAL
AHMEDABAD - BENCH 'D'
BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND
SHRI WASEEM AHMED, ACCOUNTANT MEMBER
Misc. Application No.260/Ahd/2017
(In ITA No. 3297/Ahd/2014)
नधा रण वष /Asstt. Year: 2008-2009
ACIT, Cent.Cir.1 Vs. Sun Pharmaceutical Industries
Baroda. Ltd.
SPARC, Tandalja, Baroda.
(Applicant) (Respondent)
Revenue by : Shri G.C. Srivastava, Advocate Special Counsel
Shri Sukh Sagar Syal, C.A.
Assessee by : Shri S.N.Soparkar, with
Shri Vartik Chokshi, AR
सन
ु वाई क तार ख/Date of Hearing : 14/08/2018
घोषणा क तार ख /Date of Pronouncement: 28/09/2018
आदे श/O R D E R
PER WASEEM AHMED, ACCOUNTANT MEMBER:
Present Misc. Application is directed at the instance of the Revenue pointing out some apparent mistake in the order of the ITAT dated 16.10.2017 passed in ITA No.3297/Ahd/2014 and seeking necessary modification thereof.
2. The Revenue in its MA submits as under:
"1. Revenue filed an application dated 21.04.2017 under Rule 29 of the ITAT Rules urging the Hon'ble Bench to admit certain additional pieces of evidence. The admission of the additional evidence was opposed by the counsel for the appellant in the course of hearing of the case.MA No.260/Ahd/2017
ACIT Vs. Sun Pharmaceuticals Industries Ltd.2
2. However, the order of the Hon'ble Tribunal does not even make a mention of any such application having been filed by the Revenue nor does it record any decision with regard to the fate of such application.,
5. This constitutes a grave mistake apparent from record and is likely to adversely affect the case of Revenue at the higher forum. This needs to be taken into account and suitable remedial orders deserve to be passed in this case.
B. Ground no. 2: Interest on share application money
4. This ground of appeal is dealt with in the order from pages 3-9. In para 12, the submissions of Revenue have been summarised. The findings appear in paras 13 to 15 of the order.
5.The finding of the Hon'ble ITAT suffers from the following mistakes which are apparent from record:
i) In the impugned order, the ITAT has proceeded on the assumption that the-Revenue is seeking to recharacterize the transaction of share application money as a loan. In this regard, it is submitted that the Revenue never sought to recharacterize the transaction. In the schedule detailing related party transactions, the amount advanced to the subsidiary was shown under the head 'Loans/Share Application Money' or as 'Loans' only in years without specifying whether a particular outstanding was a loan or share application money. It was in this backdrop that the Revenue raised a primary objection that the assessee has failed to demonstrate that the money was advanced as share application money. It was argued at length to point out that neither any Board resolution from the share issuing company or from the assessee is on record to give it a character of share application money. The amount of capital proposed to be raised, the schedule of payment of share application money and the period within which the shares are to be allotted have got to be specified in such a board resolution. It was submitted before the Hon'ble bench that in the absence of any board resolution from either of the two companies, the contention of the appellant that the advance was towards share application money and not by way of loan is totally contrary to the facts on record (paras ix and x of the written submission). The Hon'ble Tribunal has neither recorded these submissions in para 12 nor has given any consideration to these vital submissions made orally as also in writing. The appellant did not lead any evidence at any stage of the proceedings including the rejoinder to Revenue's MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.3
submissions. In the written submissions filed post the hearing on 8th May, 2017, a statement is made that the Board of the appellant company had resolved to contribute the shares. However, no material whatsoever was led. Thus, the finding of the Tribunal that the advance represented share application money is not based on any material on record. This, together with non-consideration of vital submission of the Revenue, constitutes mistakes apparent from record.
ii) The ITAT notes in para 14 of its order that the provisions of Indian Companies Act will not apply to an entity incorporated in British Virgin Islands. It was never the case of the Revenue that SPG BVI was subject to the provisions of the Indian Companies Act and that it had not complied with these provisions. As a matter of fact, this could never have been the case as the ITAT is any way not an appropriate forum for bringing up the defaults of the assessee regarding compliance with the Companies Act. The reference to the provisions of the Indian Companies Act was simply to highlight the fact that if it were in fact share application money, it would not have been made available for the business of the BVI company and would have been kept separately only to be used against the allotment of shares. The Revenue relied on the decision of Logix Microsystems Ltd. (80 taxmann.com 39)(2017)(Bang).The Hon'ble ITAT omitted to even refer to this decision, which was read out at length. In the said decision, the ITAT held that where the alleged share application money was paid by the Indian assessee to its AE in USA, it was to be considered as an advance for the purpose of transfer pricing until the shares were allotted. This was for the reason that the 'share application money' was not kept in a separate bank account and was therefore available to the AE for use in business. It may be appreciated that in the ITAT decision (supra), the AE was a US company, to which the provisions of Indian Companies Act did not apply, yet the conclusion so mentioned was reached. While the said ITAT decision was directly on the issue, the Hon'ble Tribunal has failed to consider the co-ordinate Bench decision. There is no finding to the effect that the said decision was not applicable to the present case nor is any finding to the effect that the Hon'ble Bench was not agreeable to the findings so given. In this scenario, the failure to consider a coordinate Bench decision directly on the issue and heavily relied upon by the Revenue would constitute a mistake apparent from record.
iii) In para xi of its written submissions, reliance was placed by the Revenue on the decision of S.R. Thorat Milk Products (70 taxmann.com 261)(2016), wherein the ITAT held that share MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.
4application money per se cannot be equated with share capital since the allotment is subject to certain rules and regulations. Therefore, until allotment, the money cannot be held towards share capital. However, this binding decision was neither referred to nor considered in the impugned order, which makes it a mistake apparent from record.A co-ordinate Bench decision cannot be brushed aside without a finding regarding its inapplicability or the disagreement of the Hon'ble Bench.
iv) In the impugned order, the ITAT has only referred to the decision of Sterling Oil Resources (P.) Ltd. ITA no. 1791/Mum/2014 to hold that where the allottee company is a 100% holding company, it makes no difference if there is a delay in allotment of shares since it remains a 100% parent before and after allotment and its interests are not affected. In this regard, it is submitted that this decision was not relied upon or referred to by either parties nor did the Hon'ble Bench make any reference to the parties to have their submissions in this respect. To place reliance on such a decision is wholly against the principles of natural justice and would constitute a mistake apparent from record.
v) The entire thrust of Revenue's oral submission before the Hon'ble Bench was that the issue was not of disallowance of any expenditure under the normal provisions of the Act, but the determination of the arm's length price of the transaction. The mere fact that the allottee is a parent company, does not take the transaction out of the rigors of section 92 of the Act. As a matter of fact, if a holding company transacts with its subsidiary and it is held that it does not make a difference whether their conduct inter se is that of independent enterprises or not since the holding company is anyway entitled to all the benefits of the subsidiary, the concept of transfer pricing itself goes for a toss and would amount to negating the application of a statutory provision. The Hon'ble Bench has not even preferred to refer to this vital argument of the Revenue nor does it record any finding to negate the contention. The finding, therefore, suffers from an apparent mistake of law.
vi) It is humbly submitted that the core issue raised by the Revenue before the Hon'ble Bench was- what would be the price of the same transaction if it was carried out between two or more independent enterprises? Broadly, in the instant case, it was to be ascertained whether an unrelated enterprise would give an advance of Rs. 369 crore for 6 months without charging any interest on it. It needs to be recalled that for this very reason, the Hon'ble Bench, in the course of MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.
5hearing, openly came to a view that the matter needs to be set aside and restored to the TPO. The failure of the Hon'ble ITAT to adjudicate on this primary issue, argued at great length before the Hon'ble Bench raises apparent mistake in the impugned order.
6. The order suffers from the grave infirmity of omission to consider nearly all vital arguments of the Revenue and the judicial precedents relied upon in the course of hearing and also submitted by way of written submissions. Any finding reached by the Hon'ble Tribunal would be a mistake apparent from record as me reference to and consideration of one or any of these arguments would have changed the course of the findings reached at by the Hon'ble Bench.
Thus, the aforesaid vital mistakes apparent from record need to be rectified by an appropriate order.
C. Ground no. 3: Interest on Optionally Fully Convertible Debentures (OFCD)
8. The Hon'ble ITAT has omitted to take into consideration the reliance of the Revenue on the decision of the Hon'ble Supreme Court in the case of Sahara India Real Estate (Civil Appeal No. 9813 of 2Q7?Jholding that OFCDs remain in the nature of debentures till these are converted into equity. The relevant observations of the Hon'ble Supreme Court were not only read out but the issue was argued at length in the course of oral submissions as also incorporated in the written submissions. However, to our dismay, it is found that the Hon'ble Tribunal has ignored this decision having a vital bearing on the findings reached at without recording any finding regarding its inapplicability to the present case or the finding that it would not have any impact on the final outcome of merits of the issue at hand.
9 It is humbly submitted that it was never the case of the Revenue that the decision of the ITAT for the earlier year should not be followed as it was a case badly argued by the Revenue. Revenue had urged that the aforesaid decision not being before the Hon'ble Bench in the preceding year, the observations of the Hon'ble Supreme Court regarding the nature of the instrument involved in the transaction, if taken into consideration, would change the outcome of the issue.
10. Reliance was also placed by the Revenue on a number of binding precedents in this regard which all have been omitted from consideration MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.
6without recording any finding to the effect that these precedents are not applicable.
11. The Hon'ble ITAT has also omitted to consider the RBI Master Circular which also lays down that only mandatorily convertible debentures are to be treated as equity.
12. In para 26 of the impugned order, the ITAT has noted that considering the fact that the OFCD was issued on beneficial terms, no adjustment of interest was warranted. This was the precise argument of the appellants. In counter to this reasoning, Revenue did submit that the presence or otherwise of benefits will not Determine whether the price is at arm's length or not. This is not a section 37 disallowance where the allowability of expenditure is to be tested in terms of the benefit it gives. This is the case of a transfer pricing adjustment under Chapter X of the Act. This chapter mandates the carrying out of an exercise of comparison between a controlled and an uncontrolled transaction. In the instant case, the exercise would translate to comparing the interest on the OFCD (or the lack thereof) together with the corresponding benefit arising there from on one hand and the interest together with the corresponding benefits on a comparable debenture issued to an unrelated party on the other. What is required to be seen is whether an independent party would subscribe to a zero percent debenture of a comparable company with similar terms as the debenture in question. If the answer is in affirmative, no adjustment would be called for, however, if the answer is in the negative, a suitable adjustment of interest was required.
13. In the course of hearing, the Hon'ble Bench did consider the option of remanding the option of remanding the matter back to the TPO for carrying out such a comparability analysis to determine the arm's length price of the transaction.
14. However, unfortunately in the final order, the Hon'ble Bench omits to consider these vital arguments of Revenue and proceeds to follow the order for the earlier year. The failure to consider the vital arguments and judicial precedents relied upon by Revenue constituted mistake apparent from record and deserves to be suitably rectified.
D. Ground no. 4: Commission for corporate guarantee
15. This ground of appeal is dealt with in the order from pages 16-19. In para 30, the submissions of the Revenue have been summarised. The findings appear in paras 31 to 33 of the order.
MA No.260/Ahd/2017ACIT Vs. Sun Pharmaceuticals Industries Ltd.
716. The Hon'ble ITAT set aside the issue to the file of the CIT(A) by reaching the conclusion that since a similar issue was pending before the jurisdictional High Court, it would be improper for the ITAT to constitute a Special Bench. While holding so, the ITAT has committed a mistake apparent from record by not appreciating the contention of the Revenue that there is no bar on adjudicating on an issue or constituting a special bench even if a similar issue is pending before the High Court.
17. ITAT committed an apparent mistake by not taking note of the Revenue's reliance on the decision of the co-ordinate bench in the case of General Motors India Pvt. Ltd. (ITA no. 1293/Ahd/2015) wherein the Hon'ble Bench held that it was only when a similar issue was pending before a High Court in assessee's own case, would there be a valid ground for denying the constitution of a Special Bench. In the present case, admittedly, the issue before the High Court was not pending in the assessee's own case, therefore, the ITAT committed a mistake in denying the request of constitution of Special Bench. The Hon'ble ITAT ought to have either reached a finding regarding the inapplicability of the coordinate Bench decision or the correctness of such a decision. Without recording either of the two findings, the coordinate Bench decision could not just be ignored or brushed aside. The order passed bypassing a coordinate bench decision when it has been specifically brought to the notice of the Bench does constitute a mistake apparent from record and deserves to be addressed suitably.
18. The ITAT set aside the issue to the CIT(A) with a direction to pass an order in line with the decision of the High Court, whenever it comes. It is submitted that passing of such a contingent order also constitutes a mistake apparent from record. It was submitted before the Hon'ble Bench that a direction to the lower authorities with reference to a contingent happening in an uncertain point of time would be wholly impermissible in law. The Hon'ble Bench has preferred to not even deal with this proposition led before it and thereby falling into error of committing a mistake apparent from record.
E. Ground no. 5: Sale of Pantoprazole drug
19. This ground of appeal is dealt with in the order from pages 19-111. In paras 68 to 73, the submissions of the Revenue have been summarised. The findings appear in para no. 75 and onwards.
20. The order suffers from the following mistakes apparent from records:
i. Revenue filed three applications under Rule 29 of the ITAT Rules, the details of which are given hereunder:MA No.260/Ahd/2017
ACIT Vs. Sun Pharmaceuticals Industries Ltd.8
a) Application dated 30.09.2016 filing additional evidence in the form of documents found during search operations, at a later point of time on which reliance was placed by the CIT(A) in her order.
b) Application dated 21.04.2017 filing additional evidence in the form of extracts of ANDA approval and Orange Book available on the website of PDA. Document showing the procedure laid down by the US authorities for obtaining ANDA approval and other related documents.
c) Application requesting the Hon'ble Bench to invoke its powers vested under the Rule and call for the documents like application before PDA, correspondence with the PDA and other connected documents, which were being withheld by the appellants from the stage of the AO/TPO. The CIT(A) went to the extent of giving them a specific notice that if they do not file these documents, an adverse inference would be drawn and yet the appellants defied the orders of the authorities below and withheld the documents. In this backdrop, application under Rule 29 was filed before the Hon'ble Bench urging the ITAT to exercise its powers and direct the appellants to file these vital documents.
ii. To our dismay, it is noticed that the Hon'ble Tribunal has omitted to pass any order on any of these applications under Rule
29.The Hon'ble Bench has not even acknowledged the filing of these applications by the Revenue. These applications pertain to the primary issue regarding the ownership of ANDA rights which go to the root of the matter and it was not justified for the Hon'ble Bench to proceed to decide the ground without discharging the primary function of adjudicating on these applications. The Hon'ble Bench has not recorded any finding that the documents sought for under application c) above was not necessary for adjudicating the issue nor is there rejection of the application on any other ground. This mistake apparent from record can only be rectified by passing suitable orders on these applications and then to readjudicate the ground of appeal.
21. The Hon'ble ITAT after recording the factual background of the issue and the contentions of the appellant before lower authorities and before the ITAT, proceeds to consider the issue from para 75 on page 94. Apart from reproducing the agreement of the appellant with its AE, the Hon'ble Bench does not prefer to deal with any of the arguments or submissions of the Revenue and records a finding that ANDA rights were with SPG, BVI. In MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.
9this context, extensive arguments made for over two days and written submissions of the Revenue running into 12 pages and the additional synopsis of the Revenue running into 4 pages some of which dealt with this primary issue of ownership of ANDA rights were omitted to be considered. The following mistakes apparent from record are clearly discernible from the order of the Tribunal:
a) ANDA rights are the rights specifically given by the US authorities to a specific entity which fulfils the requisite conditions. These rights do not flow from any agreement between the parties but these have to be granted specifically by the US authorities. Revenue, therefore, insisted time and again that the copy of the application filed before the PDA and any correspondence whereby the PDA approved the AE subsequently, ought to be placed by the appellants before the vital issue of ownership of ANDA rights is decided. The Hon'ble ITAT has preferred to refer to the inter company agreements only to reach the finding and all submissions of the Revenue in this regard have not even been examined and rejected.
b) Revenue's arguments regarding the correctness and reliability of the copy of the PDA approval in the name of SPG, BVI dated 10.09.2007, especially in the light of the fact that the approval is of a date prior to the date when the technology was allegedly purchased by SPG, BVI has not been found worth any mention and consideration in the order of the Hon'ble Tribunal.
c) Revenue extensively read out the suit filed by Wyeth and Nycomed read out from the paperbook during the course of oral arguments and also recorded the gist of the suit in its written submissions to point out that the suit was filed against the appellant and SPARC and not SPG, BVI. The AE thus was not a party to the civil suit. The settlement agreement was also made between Pfizer and the appellant and the names of other entities of the group including SPG, BVI was only mentioned in the agreement. In the written submissions as also the oral arguments, Revenue had pointed out that the liabilities in respect of the litigation were taken over by the appellant with retrospective effect from 1st May, 2013, i.e. one month prior to the settlement agreement. The Hon'ble ITAT has completely omitted to consider these vital facts in its order which would necessarily change the course of the findings.
d) The ITAT records the finding in para 87 that the appellant company is nothing but a contract manufacturer of SPG, BVI, on the basis of the agreement between the appellant and SPG, BVI. The Hon'ble Bench has committed the apparent mistake of not taking on record the detailed FAR analysis provided by the Revenue during the course of oral arguments as also MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.10
through written submissions. Revenue's detailed reference to the agreement between the appellant and Caraco whereby the entire marketing and sales functions stood vested in Caraco has also been omitted to be considered. Admittedly, no assets belonged to the AE nor it had any office or employee to say the least. The entire arrangement, as demonstrated by Revenue, at best could lead to the inference that SPG, BVI was the legal owner of the IPR. However, the Hon'ble Bench omits to take any of these factual submissions and the arguments on record or to reject these before reaching a finding that the appellant was only a contract manufacturer. The failure to take into consideration the primary facts placed before the Bench would certainly constitute a mistake apparent from record and would be open to appropriate rectification.
e) While rejecting the application of PSM method in para 88, the Hon'ble Tribunal has gone by the submissions of the appellant only, omitting to take into consideration the entire factual matrix provided by Revenue.
f) Under TNMM also, the arm's length price has necessarily to be determined taking into account the functions performed, the assets used and the risks undertaken. The omission of the Hon'ble ITAT to take into account the FAR analysis provided by the Revenue leads to an apparent mistake in comparing the profit margin of the appellant with that of Eli Lilly, which could then not be a right comparable.
g) The Hon'ble ITAT has omitted to consider the documents found during the course of survey and relied upon by CIT(A) in her order. It was also pointed out that the AO in the order of reassessment proceedings for the year under appeal has held that the technology was developed by SPIL for Caraco and the transactions were attributed to SPG, BVI in order to shift profits from SPIL to BVI. The technology did not move from India to BVI. This was submitted at length in the course of oral arguments and also submitted in the written form. The Hon'ble ITAT omitted to take any of these factual aspects on record and reached a finding in disregard to the facts indicating quite contrary to the inferences drawn. The finding of the Hon'ble Bench leads not only to the deletion of additions made for the year in these proceedings but also affects adversely the findings reached in the reassessment proceedings. To render a finding having such wide ramifications on the reassessment proceedings, without considering and taking on record the documents found during survey proceedings is an apparent mistake of grave nature, both on facts and in law.
MA No.260/Ahd/2017ACIT Vs. Sun Pharmaceuticals Industries Ltd.
11h) The Hon'ble ITAT in para 91 examines the alternate contention of the appellant that at the end of the day there were no profits and hence PSM would not be an appropriate method. This finding of the Tribunal also omits to take on record and consideration detailed factual submissions of the Revenue made orally and through written submissions. The Hon'ble Bench has further committed a mistake of attributing to Revenue some argument which was never made. Revenue never contended that it was not concerned with the settlement made at a later date. What Revenue contended was that the entire liabilities having been taken over by the appellant, the risk always remained with the appellant and further that there can be no permissible way to determine the profits of the group instead of assessable entities as contemplated in the statute and further that if losses had been incurred in later years by the appellant or any other entity of the group, it has to be dealt with according to law. Thus, the rejection of PSM on alternate grounds is also based on omission of the Hon'ble Bench to take on record the detailed submissions made in this regard.
22. The scope of the provisions contained in section 254(2) extend to rectifying any mistake apparent from record which would include not only omission to consider any ground of appeal but also the omission to consider vital facts, judicial precedents and legal submissions made by either parties and placed before the Bench. In a case where the omission to consider vital facts or judicial precedents have the effect of changing the course of findings, the omission would constitute a mistake apparent from record and would be open to suitable rectification.
23. In view of the above, it is submitted with utmost respect that the order from the Hon'ble Bench appears to have been passed in undue haste and has led to vital omissions of not passing statutory orders, non-consideration of vital evidence placed on record and failure to consider judicial precedents. It is urged that the order of the Hon'ble Tribunal may be suitably modified by setting aside the findings in respect of these grounds and to decide these grounds afresh after taking into consideration all such omissions of fact and law. This will also be in tune with the broader tenets underlying the principles of natural justice. The interest of substantial justice has been grievously hurt in this case and the only rectification possible is to set aside the findings and to revisit the issues. An objective and impersonal appreciation of these omissions and mistakes can alone meet the ends of justice."
MA No.260/Ahd/2017ACIT Vs. Sun Pharmaceuticals Industries Ltd.
122. The Ld. DR for the Revenue at the time hearing also filed the written submissions as detailed under:
"1. This is in respect of the hearing before the Hon'ble ITAT on 22nd June, 2018. On such date, various questions were put forth by the Hon'ble Bench to the Revenue asking it to establish that the mistakes pointed out in the Miscellaneous application were 'apparent from record' or 'fatal' enough to warrant an intervention by the ITAT in the present proceedings.
2. At the outset, it is submitted, that by way of this Miscellaneous application, the Revenue is not seeking a blanket recall of the entire impugned order and is not urging the Hon'ble Bench to rehear the matter in entirety and review the said impugned order. In the application, the Revenue has pin-pointed some very specific ground-wise mistakes which are apparent from the record. In substance, the mistakes committed while passing the impugned order can be put into the following two categories:
I. Non-consideration of crucial facts (including three applications for additional evidences)... Grounds no. 2, 3 and 5 II. Non-consideration of binding judgments directly on the issue passed by the higher courts as well as co-ordinate benches of the Tribunal...Grounds no. 2, 3 and 4 Legal position on the scope of rectification proceedings
3. As mentioned, the case of the Revenue is that there are two categories of mistakes apparent from record in the impugned order. There are various orders and judgments in support of each of these mistakes being apparent from record u/s. 254(2) of the Act.
I. Non-consideration of crucial facts (including three applications for additional evidences)
4. The Hon'ble Supreme Court in the case of Jyotsna Suri (179 CTR
265)(2003)(SC) held that passing of an order by the ITAT before first adjudicating on the application for additional evidence under Rule 29 of the ITAT Rules is incorrect. It may be appreciated that in this decision, the Hon'ble Supreme Court has laid down a law as regards the application for additional evidence under Rule 29 of the ITAT Rules, which becomes the law of the land for all the benches of the Tribunal. Any order passed in violation of the principle laid down by the Hon'ble Supreme Court constitutes a MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.
13mistake apparent from record. The relevant portion of the judgment is reproduced hereunder:
'The pending application under rule 29 of the ITAT Rules, was required to be disposed of first, before the Tribunal heard the appeal on merits. The appellant had undertaken to withdraw the pending application before the Tribunal for making a reference under section 256(1) for the above purpose. In view thereof, it was to be directed that the Tribunal should first dispose of the application under rule 29 on merits and thereafter proceed to dispose of the appeal.'
5. The aforesaid judgment cannot be brushed aside only on the ground that the judgment is not under section 254(2). A principle of law set out by the Apex Court cannot be ignored on such grounds.
6. Reliance is also placed on the decision of the Hon'ble Bombay High Court in the case of Amore Jewels Pvt. Ltd. (WP 1833/2018)(Bom) wherein it was held:
We find that, though the order dated 13th February, 2015 does render a finding that no positive material was brought on record, there is no discussion whatsoever of the various case laws detailed in the submissions which according to the petitioner clinchesthe issues in support of its case that the shareholding investment by the five Companies was genuine. In the above view, the Tribunal ought to have allowed the petitioner's Rectification Application and considered the petitioner's Appeal before it on merits, inter-alia, taking into account the material and case laws which has been already fled by the petitioner's during the hearing leading to the order dated 13th February, 2015 In view of the peculiar facts of the present case, we are not only setting aside the impugned order dated 4th May, 2018 but also the order dated 13th February, 2018 to the extent it dismissed the petitioner's Appeal before it. This for the reason that, we find the order dated 13th February, 2015 in the context of the material available on record, to be a nonspeaking order as it gives no reasons to reject the appeal in the context of the decisions admittedly relied upon at the hearing by the petitioners.
7. The Hon'ble Mumbai ITAT in the case of Golden Meadows Pvt. Ltd. (149 taxman 17)(2005) held as under:
MA No.260/Ahd/2017ACIT Vs. Sun Pharmaceuticals Industries Ltd.14
'It is a basic principle of jurisprudence that if there is a mistake committed by the Tribunal, it needs to be rectified as no one should suffer or come to grief on account of the mistake committed by the Court. Even the rules of procedure and technicalities should not come in the way in rendering justice to the parties by correcting the mistake committed by the Tribunal. The purpose of the Tribunal is to render justice and not to negate it.
The principles of law as enunciated by various decisions are summarized as follows :
1.That where there is a wrong assumption of facts it will constitute mistake apparent from record.
2. Where there is a failure to consider certain evidence brought on record it would also constitute a mistake apparent from record.'
8. It is not in dispute that three applications under Rule 29 were filed by the Revenue before the Tribunal and even after hearing the Revenue and the Appellant on the admissibility of these applications, no order has been passed by the Hon'ble Bench. It has proceeded to pass the impugned order without taking into consideration the facts brought out in these applications or the requests made therein.
Non-consideration of these facts is fatal to the finding arrived at:
9. The most critical question in ground no. 5 is the determination of ownership of ANDA rights. Subsequent findings on the characterisation of business functions or the application of method of determination of arm's length price entirely depends on this critical factor. The facts brought out by the Revenue go to the root of the matter in deciding this question as also whether the appellant was a contract manufacturer or not.
Once a decision is arrived at without considering the critical facts, the omission is certainly fatal to the findings.
10. Similarly, in ground no. 2, the non-consideration of an important factual aspect brought out by the Revenue that there is no resolution by the Board of either of the companies, the appellant or its AE to the effect that any contribution was made to the share application. Non-consideration of this vital fact is fatal to the finding that the loans given to the AE represented contribution to their share capital.
MA No.260/Ahd/2017ACIT Vs. Sun Pharmaceuticals Industries Ltd.
15Non-consideration of binding judgments directly on the issue passed by the higher courts as well as co-ordinate benches of the Tribunal.
11. The Hon'ble Supreme Court in the case of Honda Siel Power Products Ltd. (295 ITR 466)(2007)(SC) held that non-consideration of a decision of the co-ordinate Bench is a mistake apparent from record u/s. 254 of the Act. The relevant portion of the judgment is reproduced:
'As stated above, the expression "rectification of mistake from the record" occurs in section 154. It also finds place in section 254(2). The purpose behind enactment of section 254(2) is based on the fundamental principle that no party appearing before the Tribunal, be it an assessee or the Department, should suffer on account of any mistake committed by the Tribunal This fundamental principle has nothing to do with the inherent powers of the Tribunal. In the present case, the Tribunal in its Order dated 10-9-2003 allowing the Rectification Application has given a finding that Samtel Color Ltd, 's case (supra) was cited before it by the assessee but through oversight it had missed out the said judgment while dismissing the appeal filed by the assessee on the question of admissibility/allowability of the claim of the assessee for enhanced depreciation under section 43A. One of the important reasons for giving the power of rectification to the Tribunal is to see that no prejudice is caused to either of the parties appearing before it by its decision based on a mistake apparent from the record.
13. "Rule of precedent" is an important aspect of legal certainty in rule of law. That principle is not obliterated by section 254(2) of the Income-tax Act, 1961. When prejudice results from an order attributable to the Tribunal's mistake, error or omission, then it is the duty of the Tribunal to set it right. Atonement to the wronged party by the Court or Tribunal for the wrong committed by it has nothing to do with the concept of inherent power to review. In the present case, the Tribunal -was justified in exercising its powers under section 254(2) when it was pointed out to the Tribunal that the judgment of the co-ordinate Bench was placed before the Tribunal when the original order came to be passed but it had committed a mistake in not considering the material, which was already on record. The Tribunal has acknowledged its mistake; it has accordingly rectified its order. In our view, the High Court was not justified in interfering with the said order. We are not going by the doctrine or concept of inherent power.
We are simply proceeding on the basis that if prejudice had resulted to the party, which prejudice is attributable to the Tribunal's mistake, MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.
16error or omission and which error is a manifest error then the Tribunal would be justified in rectifying its mistake, which had been done in the present case.'
12. Reference is also made to the judgment of the jurisdiction High Court in the case of Subodhchandra S. Patel (265 ITR 445)(2004), wherein it was held that referring of a judgment but not recording a finding in relation to the proposition of law enunciated therein is a mistake apparent from record. The relevant portion of the judgment is reproduced:
'Non-consideration of a judgment of the jurisdictional High Court or the Apex Court would always constitute a mistake apparent from the record, regardless of the judgment being rendered prior to or subsequent to the order proposed to be rectified. In the instant case, admittedly, the decision in the case of Sunil Siddharthbhai (supra) was referred to by the Tribunal while passing the order under section 254(1) but the Tribunal failed to record a finding in relation to the second proposition of law enunciated by the Supreme Court in the said decision. Hence, the Tribunal was perfectly justified in exercising its powers under section 254(2) while passing the impugned order.'
13. The Hon'ble Mumbai ITAT in the case of Golden Meadows Pvt. Ltd. (supra) held:
'It is a basic principle of jurisprudence that if there is a mistake committed by the Tribunal, it needs to be rectified as no one should suffer or come to grief on account of the mistake committed by the Court. Even the rules of procedure and technicalities should not come in the way in rendering justice to the parties by correcting the mistake committed by the Tribunal. The purpose of the Tribunal is to render justice and not to negate it.
The principles of law as enunciated by various decisions are summarized as follows:
3. Where there is an omission on the part of the Tribunal to consider the principles of law enunciated by the decisions of various Courts on which reliance was placed in the course of hearing, it will also constitute mistake apparent from record.
In the instant case, certain mistakes had occurred in the order of the Tribunal. It was a fact that the assessee, in the course of pleading, had placed reliance on the decision of the jurisdictional High Court in the MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.
17case of Orient Trading Co. Ltd, v. CIT[1963] 49ITR 723 (Bom.) but the same was not considered.'
14. The following decisions cited by the Revenue have not been considered by the Hon'ble Bench:
Ground no. 2- Interest on share application money-
• Logix Microsystems Ltd. (80 taxman 39X20l?XBang)- Advance will be treated as a loan and not share application money if it is not kept in a separate bank account and made available for business use.
• S.R. Thorat Milk Products (70 taxman 261)(2016)(Pune)-Contribution to share application money cannot be equated with share capital before its conversion.
For adjudicating whether the advances were in the nature of share application money or not, the criteria laid down in the above judgments was very critical. However, the ratio of these judgments was not considered in the impugned order.
Ground no. 3- Interest on OFCDs-
Sahara India Real Estate (CA No. 9813/2011)(SCV OFCDs are to be considered debt instruments until they are converted into equity.
RBI Master Circular on Foreign investment- only mandatorily convertible debentures are to be considered a part of equity.
The Hon'ble Supreme Court in the above judgment had in unequivocal terms held that OFCDs are to be considered plain debt instruments until an actual conversion into equity happens. In the A.Y. under consideration, the OFCDs had not been converted, therefore the IT AT has committed an apparent mistake in treating them as equity instruments and not confirming the addition on account of non-charging of interest. The ratio of the judgment of the Hon'ble Supreme Court has not been considered in the impugned order.
Ground no. 4- TP Adjustment on corporate guarantee-General Motors (TTA 1293/Ahd/2015V It is only in those cases where the matter is pending before the HC in the assessee's own case can there be no reference to Special Bench.MA No.260/Ahd/2017
ACIT Vs. Sun Pharmaceuticals Industries Ltd.18
On the issue whether a Special Bench could be constituted where an appeal on the same issue has been admitted by the High Court, the Hon'ble ITAT in the above case held that if the appeal is admitted in the assessee's own case before the High Court, then a reference to Special Bench cannot be made, however, where an appeal admitted before the High Court was in the case of some other assessee, then a reference to Special Bench can be made. This decision has been ignored in the impugned order.
15. In addition to the above, it may also be appreciated that one of the most critical arguments of the Revenue with respect to Ground no. 2 and 3 was that no comparability analysis has been done by the assessee. The additions arising from these two grounds have been deleted by the IT AT without appreciating this argument and treating the issues to be non transfer issues.
Whether the decisions of jurisdictional High Court create any bar to the Hon'ble IT AT for recalling certain grounds:
16. Another concern of the Hon'ble Tribunal which was brought to the attention of the parties on the previous date of hearing was that if an appeal has been admitted by the Hon'ble High Court, would it be in tune with the prevailing law for the Tribunal to recall parts of the order and rectify mistakes. The Hon'ble Tribunal also referred to the decision of the Hon'ble Gujarat High Court in the case ofNirmaLtd. (88 taxman 188)(Guj)(2017), wherein the High Court set aside the order of the Tribunal, after it recalled its earlier order u/s. 254(2) and order was passed on merits. It is submitted that in the said case, the Hon'ble High Court set aside the order of the IT AT in recalling its earlier order on the ground that all the facts, findings and arguments had received minute scrutiny in the original order and the issue of allowing deduction u/s. 36 was a highly contentious issue which could have been decided one way or the other. The High Court held that having considered all the arguments and facts, if the order is recalled by the ITAT, it would amount to a review, which is not permissible u/s. 254(2) of the Act. The relevant portion of the judgment of the Hon'ble High Court is extracted:
4. We have heard learned counsel for the parties. We have perused the documents on record. We are of the view that the Tribunal committed a legal error in recalling its earlier detailed judgement. As noted, there was a raging controversy between the Revenue and the assessee regarding the assessee company's claim of deduction of interest expenditure at all stages before the Assessing Officer, Commissioner (Appeals) and the Tribunal. This issue received minute scrutiny. The Tribunal in particular had referred to the facts on record, findings and the observations of the Assessing Officer and the Commissioner MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.19
(Appeals) and ultimately gave its own reasoning for coming to the conclusion that the transaction leading to the assessee's claim of interest expenditure was not genuine and it ultimately put its seal on the decisions of the Revenue authorities. Whether such opinion of the Tribunal was legally sustainable or not is the subject matter before us in the present tax appeal. The relevant question is, could the Tribunal have exercised the power of rectification to recall such judgement? The answer being obvious, is in the negative. The powers of rectification flowing from Section 254(2) of the Act are for correcting apparent errors and not for re-examination of the issues already considered and concluded. It is well recognised that the powers of rectification cannot be equated to that of review. The Tribunal thus travelled far beyond its power of rectification in accepting the assessee's various contentions which were not confined to pure factual errors apparent on the record. Some of the contentions of the assessee were highly contentious legal issues. Once the Tribunal had taken a particular view, it was always open for the aggrieved party to challenge such views before the higher court. The Tribunal could not have been persuaded to re-examine the issues on the premise that there was an error apparent on the record.
5. In the result, the question is answered in favour of the Revenue. The impugned order of the Tribunal dated 28.10.2016 is set aside. Consequently, the original judgement of the Tribunal dated 31.07.2006 is restored to file. Tax appeal is disposed of accordingly.
17. It is submitted, that in the present proceedings, it is the case of the Revenue that some very crucial facts and arguments, which go to the root of the matter and which were critical to adjudication, were not taken note of by the Tribunal and therefore this is a fit case for rectification. Therefore, the decision of the Hon'ble High Court in the case of Nirma (supra) does not affect the miscellaneous application filed by the Revenue.
18. As regards the interplay between rectification proceedings u/s. 254(2) and appeal proceedings u/s. 260A, it is submitted that the two proceedings are entirely different from one another. The provisions governing the rectification proceedings before the Tribunal are contained in section 254 of the Act, whereas the provisions relating to the appeal before the High Court are contained in section 260A of the Act. Neither of the two provisions shut out the other and have co-existed for several decades.
19. It may further be appreciated that the scope of the two provisions is entirely different. While, under section 254, the Tribunal has the power to MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.
20rectify its mistakes on its own or at the instance of either of the two parties, on the other hand, the provisions of section 260A allow the High Court to examine whether there arises any question of law from the order of the Tribunal. They both operate in their own domains and neither of the two impedes the value of the other.
20. It may also be appreciated that wherever the legislature has desired to give one of two options to a taxpayer, it has done so in express words. For instance, an 'eligible taxpayer' can either file objections against the Draft assessment order before the Dispute Resolution Panel under section 144C of the Act or accept the Draft assessment order and file an appeal before the CIT(A). Similarly, a taxpayer can either approach the Commissioner of Income tax under section 264 or file an appeal before the CIT(A) u/s. 249 of the Act. It is most respectfully submitted, that in the absence of any such express embargo in the Act, no artificial restriction on the powers of the Hon'ble Tribunal can be imagined.
21.The Hon'ble Bombay High Court in the case of R.W. Promotions Pvt. Ltd. (376 ITR 126)(2015) has dealt with this exact issue and held that even when an appeal has been admitted u/s. 260A of the Act, the power of rectification u/s. 254 can be invoked. The relevant extracts are reproduced:
'The least that can be said about the understanding of the legal provision by the Tribunal is that it is ex facie incorrect and erroneous. Merely because the assessee has challenged the order of the Tribunal in an Appeal under section 260A of the Income Tax Act, 1961 before the High Court does not mean that the power under section (2) of section 254 cannot be invoked either by the assessee or by the revenue/Assessing Officer. Such a power enables the Tribunal to rectify any mistake apparent from the record and make amendments. That in a given case -would not only save precious judicial time of the Tribunal but even of the higher Court.'
22. There is no decision of the jurisdictional High Court or any other High Court laying down the principle that once an appeal has been filed or admitted on questions of law, the Hon'ble ITAT cannot proceed to decide on applications under section 254(2). Whether an application under Rule 29 can be regarded as an interim application and can be deemed to have been disposed off once a final order is passed.
23. It is submitted that this process which normally occurs in civil matters would not apply in the present case for the reason that the application under Rule 29 is a statutory application and the order to accept or reject the MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.
21application has necessarily to be passed by the Tribunal as laid down in the case ofJyotsna Suri (Supra). The difference between interim applications in civil matters seeking certain reliefs in the procedure of adjudication and a statutory application cannot be overemphasized. A function which is cast on the Tribunal by the Statute cannot be deemed to have been done by citing a parallel with interim applications in civil matters.
24. For the benefit of the Hon'ble Bench the mistakes occurring in the order of the Tribunal and assuming a fatal character are elucidated in a tabular form and made part of Annexure-A.
25. It is requested that ground nos. 2, 3 and 5 may be recalled and adjudicated after following due process of law."
3. The Ld. AR for the assessee at the time of hearing also filed the written submissions as detailed under:
"1. At the outset, it is submitted that the Deputy Commissioner of Income-tax, Circle 2(1)(1) ('the Revenue') have filed a Miscellaneous Application ('the MA') under section 254(2) of the Income-tax Act, 1961 ('the Act') seeking your Honours to amend the order passed under section 254(1) of the Act.The said MA is bad in law in as much as it does not specify as to the application filed under section 254 is against which order i.e., whether against the order passed with reference to the Assessee's appeal (bearing ITA No.3297/Ahd/2014) or with reference to the Department's appeal (bearing ITA No.3420/Ahd/2014). The application under section 254(1) is bad in as much as it does not specify as to which order is sought to be amended. Thus, the MA filed by the Revenue is defective and invalid in the eyes of law and ought to be quashed.
1. Without prejudice to the above, it is submitted that the MA filed under section 254(2) of the Act by the Revenue is grossly erroneous and bad in law since the order of the Tribunalsought to be questioned by the Revenue does not suffer from any infirmity nor does it contain any mistake apparent from record.
2. In support of the above, it is further submitted that the Revenue in the garb of the MA filed under section 254(2) of the Act, is requiring the Honorable Tribunal to review the order passed in ITA No.3297 & 3420/Ahd/2017.It is pertinent to note that the provisions of the section 254(2) of the Act provide only for rectification and not for the review of the order passed by the Honorable Tribunal. Thus, under the garb of an MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.22
application for rectification, the Revenue should not be allowed to reopen or reargue or seek review of the matter which has already been decided on merits by theTribunal in its original order. It is thus submitted that the plea of the Revenue is devoid of merit and hence bad in law.
3. It is relevant to understand that for the provisions of section 254(2) of the Act to apply, there must exist a mistake, and it must be apparent from record. 'Mistake' means to take or understand wrongly or inaccurately; to make an error in interpreting; an error; a fault; a misunderstanding; a misconception. 'Apparent' means visible; capable of being seen; easily seen; obvious; plain. An error apparent from the record must be such an error which may strike one on a mere looking at the record and is not dependent on any argument or elaboration. It has also been observed by the Hon'ble Supreme Court in Master Construction Co. (P.) Ltd. v. State of Orissa [1966] 17 STC 360 that an error which is apparent on the face of the record should be one which is not an error which depends for its discovery on elaborate arguments on questions of fact or of law. (Copy of decision is attached at Page No. 32 to 37 of paper Book).
4. A mistake apparent from the record must be an obvious and patent mistake and not something which can be established by a long-drawn process of reasoning on points on which there may conceivably be two opinions. This view has also been taken by the Hon'ble Apex Court in the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun BhavanappaTiruymale[AIR 1960 SC 137] wherein it observed that:
"An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record."
(Copy of decision is attached at Page No.38 to 44 of paper Book). Thus, it can be concluded that the provisions of section 254(2) of the Act can be resorted to only in a case where there is manifest error which is obvious, clear and self-evident and not otherwise.
5. In a nutshell, the powers envisaged in the provisions of section 254(2) of the Act, clearly contemplates that what can be corrected is a mistake apparent from record and hence it does not include dealing with the merits of the case again, based on some second opinion and to recall the order which has already been passed with proper application of mind by the Tribunal. The scope of section 254(2) is very limited and it is only the apparent error, which can be rectified. The said power to rectify does not, however, MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.
23contemplate a re-hearing of the appeal for a fresh disposal. Doing so would obliterate the distinction between the power to rectify mistakes and the power to review the order made by the Tribunal. Thus, section 254(2) does not permit recalling of order and to re-write the same again and reverse the earlier decision taken on merits. Similarly, where two opinions are possible, such a situation do not fall at all under the provisions of section 254(2) of the Act, as held by the Hon'ble Punjab & Haryana High Court in the case of CIT v. Vardhaman Spinnings [1997] 226 ITR 296. Thus, it is clear that the power so conferred does not contemplate a re-hearing which would have the effect of re-writing an order, affecting the merits of the case, as sought by the Revenue in the present case.(Copy of decision is attached at Page No.45 to 48 of paper Book).
6. In the present case, on perusal of the order passed by your Honours, it could be observed that there does not exist any legal or factual mistake, apparent from record. The issues raised by the Revenue in the MA have been extensively discussed and adjudicated on merits by your Honours after due appreciation of the factual and legal position of the case. Further, the Hon'ble Tribunal have considered the judicial precedents relied upon by the Assessee as well as the Revenue in light of all the facts and submissions placed before it. Therefore, the Tribunal have given a finding and reached to the conclusion in its complete wisdom and basis the merits of the case. In support of the above, it is also stated that most of the grounds decided by the Tribunal in the impugned order are already covered by the order of the Hon'ble Tribunal for the previous assessment years in the Assessee's own case and to this effect your Honours have while following the earlier order have explicitly discussed that the order of the preceding year was binding considering that there was no change in the fact being brought out by the Revenue. It is thereby submitted that the Revenue by filing the MA under section 254(2) is merely seeking to recall and review the impugned order by adopting a different view in respect of the grounds as raised by it in the said Application. It is further added that these grounds of the MA are debatable issues and not the mistake apparent from record and, hence, are not amenable to rectification jurisdiction conferred on the Tribunal by the provisions of section 254(2) of the Act.
7. Further, on reading of the MA filed, it can be observed that the main allegation of the Revenue is that your Honours have failed to consider the submissions and arguments made by it while deciding on the various grounds of appeals. In response to this, we submit that the allegations of the Revenue are unfounded and contrary to the facts. In the ensuing part of the submission, we have clearly demonstrated as to how your Honours have considered and dealt with the submissions of the Revenue. We, without MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.
24accepting the allegations of the Revenue, submit that failure by the Tribunal to consider an argument advanced by either party for arriving at a conclusion shall not constitute mistake apparent on the record, although it may have been an error of judgment. In this regard we place strong reliance on the following decisions:
• CIT v. Ramesh Electric & Trading Co. [1993] 203 ITR 497 (High Court of Bombay).
(Copy of decision is attached at Page No. 49 to 51 of paper Book).
• RasBihariBansal v. CIT(A) [2008] 170 Taxman 31 (High Court of Delhi) (Copy of decision is attached at Page No. 52 to 54 of paper Book).
8. At this juncture, it may also be relevant to note that the Revenue have preferred an appeal before the Hon'ble Gujarat High Court against the order passed by your Honours. The Hon'ble High Court have also admitted the appeal filed by the Revenue. It may be noted that the grounds raised by the Revenue in the appeal which is admitted by the Hon'ble High Court also includes the grounds for which Revenue have filed the MA before the Tribunal under section 254(2) of the Act. The admission of grounds by the Hon'ble High Court undoubtedly evidences that the issues raised in the MA are question of law and are such which require elaborate discussion. These are the debatable issues on which two different opinions can be made. Thus, these issues raised by the Revenue cannot be construed as mistake and hence the claim of the Revenue patently falls beyond the purview of section 254(2) of the Act.
9. We at this stage shall also seek to highlight that Revenue's plea before the Hon'ble High Court of Gujarat is purely on merits and that nowhere does the Revenue contests that the order passed by your Honours suffers from mistake. It is explicitly evident that the grounds on which appeal have been preferred by the Revenue before the Hon'ble High Court are purely question of law. Thus, by filing MA before your Honours, the Revenue seeks to exercise dual remedies on same set of issues. This act of the Revenue is not only bad under law but also poses question over the proficiency and esteem of the Tribunal as an institution, consequently resulting in terrible waste of judicial time and energy and also affecting the efficacy of the judicial system.
MA No.260/Ahd/2017ACIT Vs. Sun Pharmaceuticals Industries Ltd.
2510. Your Honours shall appreciate that the act of the Revenue of contesting its claims on merits before the Hon'ble High Court of Gujarat and at the same time through rectification application under section 254(2) of the Act, purely resembles an act of desperation from the Revenue's end. It is quite clearly a frivolous attempt whereby the Revenue is seeking backdoor entry requiring your Honours to review the order which has already been decided on merits. It is strongly submitted that what cannot be achieved directly cannot be permitted to be achieved indirectly. Thus, where the law does not allow a matter to be reheard or reviewed, then the same under the garb of rectification cannot be allowed to re-contested. Clearly the plea of the Revenue is beyond provisions of the law and shall be quashed being void.
In light of all the above submissions, it is the humble plea of the Assessee that the MA filed by the Revenue is bad in law and ought to be quashed.
Without prejudice to the above, the Assessee seeks to rebut the allegations raised by the Revenue. In this regard, the submission of the Assessee is as under:
Ground 2: Interest on share application money SN. Particulars
1. Allegation of the Revenue:
It is the say of the Revenue that the amount advanced to Sun Pharma Global Inc. BVI ('SPG BVI') (100% subsidiary of the Assessee) was shown under the head 'Loans / Share Application Money' or 'Loans' in certain years without clearly specifying whether it was a loan or share application money. [page no. 1 para 5(i) of the MA] Rebuttal of the Assessee:
1. The allegation by the Revenue that the amount advanced to subsidiary was shown under the head 'Loans / Share Application Money' or 'Loans' in certain years without clearly specifying whether it was a loan or share application money is factually incorrect and without any merit whatsoever.
2. The Assessee has very clearly classified the amount advanced to SPG BVI as share application money in the Schedule 15 of the audited Financial Statements for the year under consideration. In this regard attention is drawn to page no. 20 of the compilation of submission / MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.26
documents submitted by revenue.
3. The Revenue has conveniently ignored the afore-mentioned Schedule 15 and selectively referred to the related party transactions annexure to substantiate its claim.
Thus, the claim of the Revenue that the Assessee has failed to demonstrate that money was advanced as share application money is devoid of merits and patently incorrect.
2. Allegation of the Revenue:
It is the say of the Revenue that neither any Board Resolution from the share issuing company or from the Assessee is on record to give it a character of share application money.
[page no. 2 para 5(i) of the MA] Rebuttal of the Assessee:
1. The Revenue seeks to contest its claim purely on the premise that Board Resolution evidencing advances as share application money is not on record.
2. The Revenue has failed to consider the fact that the Assessee has in the audited Financial Statements very clearly classified he advances given to SPG BVI as share application money. The Revenue has conveniently ignored the audited Financial Statements of the Assessee and have questioned the authenticity of the same.
3. The Revenue has ignored the fact that the Financial Statements of the Assessee are audited by the independent Statutory Auditor in accordance with the provisions of the Companies Act. Further, this audited Financial Statements are adopted by the shareholders of the Company in its Annual General Meeting. Also, it is worth noting that the Assessee being a listed company, its Financial Statements are subject to greater scrutiny by various regulatory authorities. Thus, the authenticity with respect to fact that the amount advanced represents share application money cannot be doubted. The audited Financial Statements should be considered as conclusive evidence with respect to same.
Hence, it is submitted that the claim of the Revenue that in absence of any Board Resolution from either of the two companies, the contention of the Assessee was contrary to the fact, is clearly and demonstrably wrong and devoid of merits.
MA No.260/Ahd/2017ACIT Vs. Sun Pharmaceuticals Industries Ltd.
274. Without prejudice to the above, we place reliance on ruling of the BombayHigh Court in the case of Ramesh Electric & Trading Co. (supra) wherein the Hon'ble High Court has held that failure by the Tribunal to consider an argument for arriving at a conclusion shall not constitute mistake apparent on the record.
3. Allegation of the Revenue:
It is the contention of the Revenue that your Honours have neither recorded nor considered the submissions made by it. Further, the Revenue alsoalleges that the finding reached by the Hon'ble Tribunalis not based on any material on record and that the same together with non-consideration of vital submission, constitutes mistake apparent from record. [page no. 2 para 5(i) of the MA] Rebuttal of the Assessee:
1. The claim of the Revenue is blatantly incorrect since your Honourshave reached to the conclusion only after discussing the concerned issues at length, giving proper weightage to the arguments advanced by both the parties.
2. In this regard attention of your Honours is drawn on para 13 and 14 on page 5 and 6, respectively, of the impugned order to the following observation made by your Honours:
"13. We have given a thoughtful consideration to the rival contentions qua the facts in issue before us.
14. The crucial fact relates to the balance as at 31stMarch, 2007 shown under the head advances as share application money to Sun Pharma Global Inc. BVI at Rs. 1469.7 million and the same has been reflected as on 31st March, 2008 at Rs. 1007.4 million. If these figures are considered it emerges that shares worth 462.3 million were allotted to the assessee company during the year under consideration and the balance were allotted in the subsequent financial years. This means that the balance of the application money remained so pending allotment..."
From the above observations, it is clearly evident that your Honourshave considered and recorded all the essential and vital facts which are relevant to reach to the conclusion.
3. Further, it is submitted that the arguments of the Revenue on the MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.
28concerned matter are also being considered and dismissed before coming to the conclusion. In this regard, attention is drawn to para 14 on page 6 of the impugned order which contains detailed discussion and findings of your Honours on the subject.
4. In this regard reliance is also placed on the ruling of Third Member Bench of Tribunal at Pune in the case of Poona Pearls Poultry Breeding Farms & Hatcheries 58 ITD 1 [1996] wherein the Hon'ble Tribunal has held:
"...the decision of the Tribunal need not be scrutinised sentence by sentence merely to find out whether all facts have been set out in detail by the Tribunal or, whether some incidental facts which appear on the record have not been noticed by the Tribunal in its judgment. If on a bare reading of the judgment of the Tribunal one has found that it has taken into account all relevant material and has also not taken into account any irrelevant material for basing its conclusions, the decision of the Tribunal is not to be interfered with. It is not necessary for the Tribunal to state in its judgment specifically in express words that it has taken into account the cumulative effect of the circumstances, or, has considered the totality of the facts..." (para
25) [Emphasis supplied] Thus, the claim of the Revenue that the findings reached by your Honours is without any material on record is blatantly incorrect and without any merit.
5. Without prejudice to the above, we place reliance on ruling of the Bombay High Court in the case of Ramesh Electric & Trading Co. (supra) wherein the Hon'ble High Court has held that failure by the Tribunal to consider an argument for arriving at a conclusion shall not constitute mistake apparent on the record.
4. Allegation of the Revenue:
Revenue contends that there appears mistake apparent from record as your Honours have failed to consider the decision of Hon'ble Tribunal at Bangalore in the case of Logix Microsystems Ltd. [2017] 80 taxmann.com
39)and decision of Hon'ble Tribunal at Pune in case of S.R. Thorat Milk Products [2016] 70 taxmann.com 261,on which strong reliance was placed by it.
[page no. 3 para 5(ii) and para 5(iii) of the MA] Rebuttal of the Assessee:
MA No.260/Ahd/2017ACIT Vs. Sun Pharmaceuticals Industries Ltd.29
1. In this regard, we would like to draw your attention to para 12 on page 5 of the impugned order where your Honours have clearly recorded the reliance placed by the Revenue on the said case:
"12 .... Strong reliance was placed on the decision of the Co- ordinate Bench at Bangalore in case of Logix Micro Systems Ltd. 80 taxmann.com 39......"
2. Thus, the contention of the Revenue that your Honours have failed to record the reliance placed by it on the above-mentioned case law is grossly incorrect.
3. Furthermore, your Honours have clearly mentioned how the facts in the decision of the co-ordinate Bench in the case of Sterling Resources (P.) Ltd. in ITA No. 1791/Mum/2014 are applicable to the case of the Assessee in para 14 on page 7 of the impugned order. Thus, considering the closeness of facts of the Assessee's case with that of the facts involved in Sterling Resources (P.) Ltd. (supra), your Honours have relied upon the ruling of the co-ordinate bench in case of Sterling Resources (P.) Ltd. Thus, where the Tribunal, considering the facts and merits of the case, feels appropriate to follow one judicial precedent over the other it cannot be said that the act of the Hon'ble Tribunal is erroneous.
4. Without prejudice to the above, it is submitted that non-mentioning of a decision relied upon by either party does not render the order of the Tribunal as error-prone. In this regard reliance is placed on the following decisions • Commissioner of Income-tax vs. The Income-tax Appellate Tribunal [2006] 293 ITR 118 (High Court of Delhi).
(Copy of Case decision is attached at Page No. 55 to 58 of paper Book).
• Poona Pearls Poultry Breeding Farms & Hatcheries [1996] 58 ITD 1 (Pune)(Third Member / Special Bench) (Copy of Case decision is attached at Page No. 59 to 69 of paper Book).
Hence there appears no merit in the contention of the Revenue and consequently the claim of the Revenue alleging that there is mistake apparent on record falls flat and ought to be dismissed.
5. Allegation of the Revenue:
MA No.260/Ahd/2017ACIT Vs. Sun Pharmaceuticals Industries Ltd.30
It is the contention of the Revenue that reliance placed by your Honours on the decision of the Sterling Resources (P.) Ltd. in ITA No. 1791/Mum/2014 is against the principles of natural justice as this case law have neither been relied upon or referred to by either party.
[page no. 3 para 5(iv) of the MA] Rebuttal of the Assessee:
1. We would like to state that this decision has been specifically relied upon by the Assessee and is part of the paper book kept on record during the course of hearing before the Hon'ble Tribunal. In this regard attention is drawn to submitted this case law at Annexure "K"
of combined paper book for 2007-08 &2008-09.
Thus, the claim of the Revenue is grossly incorrect as the Assessee has clearly mentioned this case law as a part of its submissions.
Ground No. 3: Interest on Optionally Fully Convertible Debenture(OFCD) SN. Particulars
1. Allegation of the Revenue:
The Revenue contends that there is a mistake apparent from record as your Honours have ignored the reliance placed by the Revenue on the decision of the Hon'ble Supreme Court in the case of Sahara India Real Estate Corp. Ltd(Civil Appeal No. 9813 of 2011) and not recorded any findings regarding its inapplicability to the present case.
[page no. 5 para 8 of the MA] Rebuttals of the Assessee:
1. In response to the above, we would like to draw the attention of your Honoursto para 19 on page 10 of the impugned order wherein the decision of Hon'ble Apex Court in the case of Sahara India Real Estate Corp. Ltd (Civil Appeal No. 9813 of 2011), have been considered by your Honours which is reproduced as under:
"19. Shri G.C. Shrivastava referred to the decision of the Hon'ble Supreme Court in the case of Sahara India Real Estate Corporations Ltd. in Civil Appeal No. 9813 of 2011. It is contended that the Hon'ble Supreme Court has explained the nature of OFCDs and have held that OFCDs are hybrid securities which remained in the nature of debentures till they are converted into equity after which they take form of equity..."MA No.260/Ahd/2017
ACIT Vs. Sun Pharmaceuticals Industries Ltd.
312. We would also like to state that the Senior Counsel representing the Assessee Shri Soparkar('Senior Counsel'), during the course of proceedings, has strongly opposed the reliance placed by the Revenue on the decision of the Supreme Court in the case of Sahara India Real Estate Corp. Ltd (supra).The above submissions and counter arguments of the Revenue and the Assessee, respectively, have been clearly recorded by your Honours in the impugned order. In this regard, attention of your Honours is drawn to para 20 on page 10 of the impugned order which reads as follows:
"20. Shri Soparkar ld. Senior counsel replying to the submissions of revenue stated that the decision of Hon'ble Supreme Court in the case of Sahara India Real Estate Corporations in Civil Appeal No. 9813 of 2011 relied upon the by the learned DR is not applicable to the issue before the Hon'ble ITAT. Even if it is held that OFCD is a hybrid instrument as laid down by the Supreme Court, in applying the Transfer Pricing Provisions, the entire instrument has to be considered and the same cannot be re-characterized partly as loan partly as equity so as to enable any transfer pricing adjustment for the same. In this regard, we rely on the decisions cited earlier, which have been appropriately followed by the Hon'ble ITAT in A.Y. 2007-08 and the decision of the Supreme Court (supra) cited by the ld. DR does not in any way justify any departure from the decision laid down in A.Y. 2007-08.
21..."
Thus, the reliance on the decision of the Supreme Court in the case of Sahara India Real Estate Corp. Ltd (supra) has been strongly refuted on the merits of the case. It is not the case that the decision of the Supreme Court has not been considered at all.
3. Also, your Honours while reaching to a conclusion and giving a finding in this regard have made specific observations and passed a speaking order negating the arguments and contentions raised by the Revenue, which are duly captured in para 22 to para 26 of the impugned order. It is only after considering the issues on merit and relying on the decision by the Hon'ble Tribunal of the earlier year in the Assessee's own case, your Honours have come to a conclusion. The relevant extract from the impugned order is as under:
"26. The distinguishing facts as canvassed by the Shri Shrivastava do not culminate in to any proposition so as to convince us to take any divergence from earlier findings and the judicial discipline also guides MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.32
us to follow the decisions of the Co-ordinate bench ....................."
4. It is clearly visible that the your Honours considering the arguments advanced by both the parties have come to the conclusion. A perusal of the impugned order clearly reveals that issue have been adjudicated by your Honours on merit, after evaluating the rival submissions, including case laws relied upon by both the parties. All the submissions made by both the parties have been duly considered and then the issue have been decided on merit after due application of mind. The issues that have been raised by the Revenue before your Honours have been dealt with after appreciation of the factual and legal position of the cases and adjudicated on merit. Thus, the application made before your Honours by the Revenue is not sustainable.
5. Thus, the contention of the Revenue that the reliance placed by it on the decision of the Hon'ble Apex Court in the case of Sahara India Real Estate Corp. Ltd (supra) is not discussed in the impugned order is factually wrong.
6. We wish to submit that it is not imperative to discuss and record each and every argument of the parties. We further submit that if it appears that the Tribunal while reaching to the conclusion has taken into account all relevant submissions and has not considered any irrelevant material for basing its conclusions, the decision of the Tribunal is not to be interfered with.
7. It is reiterated that non-mentioning of a decision relied upon by either party does not render the order of the Tribunal as error-prone. In this regard reliance is placed on the following decisions.
• Commissioner of Income-tax vs. Income-tax Appellate Tribunal (supra).
• Poona Pearls Poultry Breeding Farms & Hatcheries (supra).
2. Allegations of the Revenue:
The Revenue contends that there is mistake apparent from record as your Honours have, unfortunately in the final order, failed to consider the vital arguments and judicial precedents relied upon by the Revenue. [page no. 6 para 14 of the MA] Rebuttal by the Assessee:
1. We would like to reiterate and state that the issues which have been considered and decided on merits after due application of mind by the MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.33
Bench do not constitute obvious, glaring, patent and self-evident mistake of facts or law which is requisite for filing the rectification application under section 254(2) of the Act. Therefore, the grounds raised by the Revenue in the impugned MA filed falls beyond the purview of the section 254(2) of the Act. Further analysis and discussion on the jurisdiction of the Tribunal under section 254(2) of the Act would reveal that these issues raised by the Revenue in the said MA, as discussed above, are not covered by the statutory phrase 'any mistake apparent from record'. It is reiterated that a mistake apparent from record is not the one which requires detailed inquiry and discussion.
2. We would like to draw your attention to the decision of the Hon'ble Delhi Tribunal in the case of the Deepak Chhabra v. ITO 14 SOT 171 [2007]. The Tribunal held that:
"The mere non-mention of the decisions does not give rise to any mistake apparent from record when the order of the Tribunal has proceeded on the factual basis. There may even be an error of judgment in appreciating the impact of the points raised by the parties before the Tribunal which may make its order vulnerable in further appeal but that also does not give rise to a mistake apparent from the record. If on a fair and whole reading of the Tribunal's order, one can broadly say that the Tribunal has fairly and substantially dealt with the contentions raised by the parties before it or the issue in all its important aspects, the mere fact that there has been an omission of some incidental points or to refer to a decision or authority cited before it does not give rise to a mistake apparent from the record."
[Emphasis supplied] (Copy of decision is attached at Page No. 70 to 74 of paper Book).
3. The facts of the above case are similar to the case of the Assessee. We would like to state that in the Assessee's own case your Honours have substantially dealt with all the important aspects. Your Honours have clearly dispensed upon all the contentions and arguments of both the parties. When the Tribunal has broadly reasoned on all the important points laid before it by both the parties and on an overall basis adjudicated on the issue then the non-mention of a particular case law cited before the Tribunal or any other incidental points is not a mistake apparent from record. The order of the Tribunal has to be read in a broad manner and not scrutinized sentence to sentence. A broad reading of the order passed by your Honours clearly depicts that the concerned issues have been dealt with in its entirety. Thus, there is no mistake apparent from record in not mentioning each and every case MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.
34law cited by the Revenue or in omitting incidental points. In such circumstances, it may be considered as an error of judgement in appreciating the impact of the points raised before the Hon'ble Tribunal. However, the only relief available in such scenario would be to prefer an appeal before the higher authorities, which have already been resorted by the Revenue since they have already filed an appeal before the Hon'ble Gujarat High Court against the impugned order. Thus, in the present circumstances, filing a rectification application under section 254(2) of the Act would not be an appropriate remedy.
Ground No. 4: Commission for corporate guarantee SN. Particulars 1. Allegations of the Revenue:
The Revenue has contended that there is a mistake apparent from record by not appreciating the contention of Revenue that there is no bar on adjudicating on an issue or constituting a special bench even if a similar issue is pending before the High Court.
[page no. 6 para 16 of the MA] Rebuttals of the Assessee:
1. We would like to point out that your Honours have noted the request of the Revenue to refer the issue to the special bench in para 30 on page 17 of the impugned order:
"30. Ld. Shri G.C. Shrivastava vehemently opposed this contention by referring to other decisions of the Co-ordinate Benches on this issue and it is proposed that as there are conflicting decisions of the Co- ordinate benches, the issues should be referred for a special bench ...."
Further, your Honours have adequately explained as to why a special bench should not be constituted in para 32 on page 18 of the impugned order:
"32. We find that in A.Y. 2007-08, the bench has observed that the Hon'ble Jurisdictional High Court is seized with a similar question of law in Tax Appeal No. 567 of 2016. In our considered opinion, when a superior court is seized with a substantial question of law on this very issue, it would be improper for a lower forum to constitute a Special Bench to decide on the same issue."MA No.260/Ahd/2017
ACIT Vs. Sun Pharmaceuticals Industries Ltd.
35Thus, the Tribunal have with due application of mind formed an opinion and thereafter dismissed the request of the Revenue for constituting the Special Bench. We submit that judgement rendered with due application of mind can by no stretch of imagination be said to be mistake, it at best be a case of error, if any, of judgment. Thus, the contentions of the Revenue are grossly incorrect and accordingly the MA shall be dismissed.
2. Without prejudice to the above, the Hon'ble Delhi Tribunal in the case of Smt. Baljeet Jolly v. CIT [2001] 250 ITR 113 held that where an error was far from self-evident, it ceased to be an apparent error. The contention of the Revenue that 'denial of their request for a special bench is a mistake' is not self-explanatory and requires an extensive understanding. The Revenue has failed to mention in their application how exactly denial to refer to a special bench constitutes a mistake apparent from record. Hence, in light of the ratio laid down in the above-mentioned decision, the contention of the Revenue falls beyond the scope of Section 254(2) of the Act.
(Copy of decision is attached at Page No. 75 to 79 of paper Book).
2. Allegations of the Revenue:
The Revenue has alleged that there is a mistake apparent from record as your Honours have not taken note of reliance placed by the Revenue on the decision of the co-ordinate bench in the case of General Motors India Pvt. Ltd. (ITA No. 1293/Ahd/2015).
[page no. 7 para 17 of the MA] Rebuttals of the Assessee:
1. We would like to point that the above case relied upon by the Revenue has been satisfactorily deliberated in the impugned order. The reliance of the Revenue on the above-mentioned case has been clearly noted down in para 30 on page 17 of the impugned order:
"30. Ld. Shri G.C. Shrivastava vehemently opposed this contention by referring to other decisions of the Co-ordinate Benches on this issue and it is proposed that as there are conflicting decisions of the Co-
ordinate benches, the issues should be referred for a special bench"
Thus, the claim of the Revenue that your Honours have failed to record the reliance placed by it on the decision of the co-ordinate bench is incorrect.
2. Without prejudice to the above, it is evident that the issue raised by the Revenue in the MA was decided by your Honours on merits and MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.36
having regard to the rival submissions and the case laws. Thus, the issue was debatable and susceptible to different opinions. These issues decided on merits after due appreciation of the facts of the case, as highlighted in the impugned order of your Honours cannot not be construed as suffering from patent, self-evident, glaring mistake apparent from the record as contemplated under section 254(2) of the Act. It is a well-settled principle that only an apparent error of factor law can be rectified. If the mistake of law has to be established by long drawn process or by a long explanation or by construing the words of a section, to find its proper meaning, then such an error cannot normally be a rectifiable error under section 254(2) of the Act.
3. Without prejudice to the above, it is reiterated that non-mentioning of a decision relied upon by either party does not render the order of the Tribunal as error-prone. In this regard reliance is placed on the following decisions • Commissioner of Income-tax vs. Income-tax Appellate Tribunal (supra).
• Poona Pearls Poultry Breeding Farms & Hatcheries (supra).
4. Further, in response to the contention of the Revenue that proper reasons have not been recorded by your Honours for the inapplicability of the case law cited by them, we would like to draw your attention to the decision of the Punjab and Haryana High Court in the case of Popular Engg. Co v. ITAT 248 ITR 577[ 2001].wherein it was observed that absence of reason in an order was not to be considered as a mistake apparent from record. Thus, the contention of the Revenue that there exists a mistake apparent from record in not giving specific reasons for the non-applicability of the decision of the co-ordinate Bench relied upon by them is incorrect in light of the above-mentioned observation laid down by the Hon'ble Punjab and Haryana High Court.
(Copy of decision is attached at Page No.80 to84 of paper Book).
3. Allegations of the Revenue:
The Revenue has alleged that there is a mistake apparent from record as your Honours have passed a contingent order by giving a direction to the Commissioner of Income-tax Appeals('CIT (A)') to pass an order in line with the decision of the Hon'ble High Court on the same set of grounds which is still pending for disposal.
[page no. 7 para 18 of the MA] MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.37
Rebuttals of the Assessee:
1. The contentions of the Revenue in the MA are baseless. The facts of the case are straight-forward. Your Honours, relying on the decision of the Hon'ble Tribunal in the Assessee's own case for AY 2007-08, have set aside the matter to the file of the Hon'ble CIT (A) with the direction to decide upon the issue as per the decision given by the Jurisdictional High Courtwhich is seized with a similar question of law.It must be noted that such an order is not prejudicial to the interest of the Revenue since your Honours have simply directed that the decision of the Jurisdictional High Court shall be applied.
2. Further, it is submitted that the Revenue is challenging your Honours powers to set aside the order to the file of the CIT(A) with the directions to decide upon the matter in light of the decision of the Hon'ble High Court of Gujarat without appreciating that Rule 28 of the Income-tax (Appellate Tribunal) Rules, 1963 ('ITAT Rules') clearly gives the power to the Hon'ble Tribunal to remand back the matter to the authority from whose order appeal has been preferred and with such directions as it may think fit. Thus, your Honours, in pursuance of such powers envisaged by Rule 28, have given the directions to CIT(A) to follow the decision of the Hon'ble High Court and hence such direction cannot be construed as an error apparent from the record.
Thus, in light of the above, it is submitted that the contention of the Revenue that your Honours have committed a mistake by issuing directions to the CIT (A) to pass an order in line with the decision of the Hon'ble High Court, is legally wrong and without any merits.
Ground No. 5: Sale of Pantoprazole drug S.N Particulars o. 1. Allegations of the Revenue:
It is the allegation by the Revenue that there is a mistake apparent from record since your Honours have omitted to pass any order on the application filed by the Revenue under Rule 29 of the ITAT Rules.
[page no. 7 para 20 of the MA] Rebuttals of the Assessee:
1. It is the contention of the Revenue that it has filed 3 applications before the Hon'ble Tribunal under Rule 29 of the ITAT Rules for producing MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.38
additional evidence. In response to the above, we would like to make submissions qua each application filed by the Revenue as follows:
i. Additional Evidence application under Rule 29 dated 29.09.2016:
On perusal of the paper book filed by the Revenue, it can be observed that in the name of application under Rule 29, only a covering letter was filed before your Honours whereby no additional evidence or any documents was produced as such. In this regard attention is drawn to page no. 62 of the compilation of submission/ documents filed by revenue. Thus, the contention of the Revenue that your Honours have failed to consider the additional evidence filed vide this application is baseless and without any merits since no such additional evidence was produced by it. Further on perusal of the covering page of the application, it nowhere appears that the Revenue is seeking to place any additional evidence. On apparent reading of the said application dated 29.09.2016 submitted on 30.09.2016 it could be rather observed that the said application is concerned with filing of additional ground of appeal and not additional evidence. Thus, the Revenue itself seems to be confused about its claims and that the MA is filed by the Revenue in complete haste and without due application of mind.
ii. Additional Evidence application under Rule 29 dated 21.04.2017:
The additional evidence in the form of extracts of ANDA approval and Orange Book was filed by the Revenue vide application dated 21.04.2017. It is submitted that such documents were duly considered by your Honours while rendering the decision which is clearly reflected in the para 79 on page 100 of the impugned order which is reproduced as under:
"79. Copy of Orange Book reflected title of the ANDA of Pantoprazole Sodium with SPG BVI is exhibited at pages 569 & 570 of the paper book which conclusively proves that the ANDA rights were with the SPG BVI."
Thus, the contention of the Revenue that your Honours have omitted to consider the documents produced vide this application is factually incorrect since the Hon'ble Tribunal have strongly relied on these documents while determining the issue with respect to the ownership of the ANDA rights.
iii. Application requesting the Hon'ble Tribunal to issue directions for MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.
39filing documents necessary to decide ANDA ownership The provisions specified in Rule 29 of the ITAT Rules deal with the production of additional evidence during the course of proceedings. The discretionary power to entertain the application made by either party for producing additional evidence during the course of proceedings rests with the Hon'ble Tribunal. However, before making any such application, it is necessary that such additional evidence must be in the possession of the party which intends to produce the same. In a case where Revenue intends to furnish additional evidence, the application shall be made to the Hon'ble Tribunal only when such additional evidence is in the possession of the Revenue. The provisions envisaged under Rule 29 of the ITAT Rules does not give any power to the Revenue whereby it can request the Hon'ble Tribunal to direct the Assessee to furnish certain documents or evidence which is not on the record. On perusal of the application filed by the Revenue under Rule 29, it can be clearly seen that through said application the Revenue does not places on record any additional evidences before your Honours. Thus, the application filed by the Revenue requiring Hon'ble Tribunal to issue directions to the Assessee for furnishing additional documents is itself void and bad in law.
Without prejudice to the above, it is submitted that on perusal of the application filed by the Revenue under Rule 29 of the ITAT Rules, it can be observed that Revenue is predominantly asking for and stretching at its length, requesting your Honours to direct the Assessee to furnish the documents like application made before the FDA and other connected documents. The contention of the Revenue that the Hon'ble Tribunal have failed to consider the application filed by it is factually incorrect since your Honours have very explicitly dealt with the same in para 90 on page 108 of the impugned order which is reproduced as under:
"90. ..... SPG may not have done any filing related to Pantoprazole Sodiurn patent to US FDA but the fact of the matter and which have been demonstrated successfully by the appellant company is that the IPR / ANDA rights became the property of SPG BVI by virtue of the agreement for sale between SPARC and SPG."
Thus, the Hon'ble Tribunal have very well considered the request of the Revenue and that on merits your Honours have dismissed MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.
40the additional evidence application of the Revenue basis specific finding. Therefore, the contention of the Revenue that your Honours have failed to consider the application filed by it under Rule 29 of the ITAT Rules seeking additional evidence is incorrect and without any merits.
2. Allegations of the Revenue:
It is the allegation by the Revenue that your Honours has only considered inter-company agreements for the purpose of determining the ownership of ANDA rights.
[page no. 9 para 21(a) of the MA] Rebuttals of the Assessee:
1. The allegation of the Revenue that only inter-company agreements has been considered for the purpose of determining the ownership of ANDA rights is incorrect since your Honours, while deciding on the said matter, have placed strong reliance on the copy of the Orange Book which reflected the title of ANDA rights of Pantoprazole Sodium with SPG BVI and not merely on the inter-company agreements.
2. The Orange Book is the publication maintained by United States Department of Health and Human Services which identifies the drug products approved by the Food and Drug Administration (FDA).
3. Accordingly, the copy of Orange Book has been referred by your Honours and is considered as conclusive evidence for determining the ownership of ANDA rights which is recorded by your Honours in the para 79 on page 100 of the impugned order as follows:
"79. Copy of Orange Book reflected title of the ANDA of Pantoprazole Sodium with SPG BVI is exhibited at pages 569 & 570 of the paper book which conclusively proves that the ANDA rights were with the SPG BVI."
4. Further, in response to the argument of the Revenue that the copy of application filed before FDA and other correspondences have not been presented by the Assessee, your Honours have considered the same in para 90 on page 108 of the impugned order as follows:
"90. ..... SPG may not have done any filing related to Pantoprazole Sodiurn patent to US FDA but the fact of the matter and which have been demonstrated successfully by the appellant company is that the IPR / ANDA rights became the property of SPG BVI by virtue of the MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.41
agreement for sale between SPARC and SPG."
Thus, the contention of the Revenue is without any merits and hence does not hold good. We reiterate the principle laid down by the Pune ITAT in the case of Poona Pearls Poultry Breeding Farms & Hatcheries (supra) wherein it held that if on a bare reading of the judgment of the Tribunal one has found that it has taken into account relevant material for basing its conclusions, then the decision of the Tribunal is not to be interfered with. Hence in the present case, the Tribunal has in its wisdom considered the requisite documents including the orange book and that after due verification thereof came to a conclusion that SPG BVI is the owner of the ANDA rights. In light of these facts, it is submitted that order of the Tribunal does not suffer from any infirmity and contains no mistake apparent from record.
3. Allegations of the Revenue:
It is contended by the Revenue in respect of the fact that the FDA approval is of a date prior to the date when the technology was allegedly purchased by SPG BVI has not been found worth any mention in the order passed by your Honours.
[page no. 9 para 21(b) of the MA] Rebuttals of the Assessee:
1. It is submitted that the contentions of the Revenue are baseless. The arguments of the special counsel representing for the Revenue has been recorded by your Honours in the para 68 on page 81 of the impugned order which is reproduced as follows:
"68. ................. Shri Shrivastava pointed that the USFDA approval in the name of SPG is dated 10.09.2017, however, Technology was purchased by SPG only in the month of October, 2007. .........."
2. Further, in response to the above, the arguments of the Senior Counsel representing the Assessee have also been recorded by your Honours in the sub point (7) of the point (A) in the para 74 on page 87 of the order which is also reproduced as under:
"7. ......... The date of original approval mentioned as 10th September 2007 is merely the date when the ANDA was approved and does not indicate that the ANDA was owned by SPG BVI from that date. This is unintended confusion that has been sought to be created and should stand suitably explained and clarified."
Thus, it can be said that the issues have been considered and decided by your MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.
42Honours on merit and after evaluating the rival submissions.
3. It is further submitted that failure by the Hon'ble Tribunal to consider an argument advanced by either party for arriving at a conclusion shall not constitute mistake apparent on the record as held by the BombayHigh Court of Bombay in the case of CIT v. Ramesh Electric & Trading Co. (supra).
4. Allegation of the Revenue:
The Revenue alleges that its written submissions and oral arguments with respect to the fact that the suit filed by Wyeth and Nycomed was against the Assessee and SPARC and not against SPG BVI have been completely omitted by your Honours in the impugned order.
[page no. 9 para 21(c) of the MA] Rebuttals of the Assessee:
1. It is submitted that the plea of the Revenue does not hold good. The Senior Counsel representing the Assessee has extensively dealt with and challenged the submission of the Revenue. We submit that the arguments of the Senior Counsel representing the Assessee in response to the oral and written argument of the Revenue have also been recorded by your Honours in the sub point (3) of the point (A) in the para 74 on page 85 of the order which is reproduced hereunder:
"3. Subsequently, the original patent holder viz. Wyeth Pharmaceutical Inc. and Atlanta Pharma AG filed a complaint for the patent infringement. Since the suit had been filed in the financial year 2005-06 when SPIL was the actual owner of ANDA application.
Therefore, both SPIL and SPARC 1 were made defendants of the original patent holder in the suit filed."
Thus, the contention of the Revenue has been appropriately addressed and negated by the Senior Counsel representing the Assessee and that the same have been fairly recorded by your Honours in your order. We reiterate that once the arguments of the parties are considered by the Hon'ble Tribunal then it is not mandatory for it to explicitly specify and discuss each and every argument in the order.
Thus, the allegations of the Revenue that your Honours have completely omitted to consider the vital documents such as civil suit filed by Wyeth and Nycomed is not tenable.
2. Without prejudice to the above, it is further submitted that failure by MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.
43the Hon'ble Tribunal to consider an argument advanced by either party for arriving at a conclusion shall not constitute mistake apparent on the record as held by the Bombay High Court of Bombay in the case of CIT v. Ramesh Electric & Trading Co. (supra).
5. Allegation of the Revenue:
The Revenue alleges that your Honours have omitted to consider the factual submissions such as FAR analysis submitted by it as well as oral arguments with respect to the fact that the Assessee was only a contract manufacturer. [page no. 10 para 21(d) and para 21(f) of the MA] Rebuttal of the Assessee:
1. It is submitted that your Honours have duly considered all the primary facts before reaching to a finding that the Assessee was only a contract manufacturer.
2. The submissions and arguments of the Revenue have been recorded by your Honours in a very detailed manner in the para 71 and 72 on page 83 of the impugned order which are reproduced as under:
"71. Shri Shrivastava further stated that all marketing, selling and distribution expenses are to be borne by Caraco and not SPG and SPG had no freedom to approach any other manufacturer. He continued by saying that none of the major functions have really been performed by SPG.
72. It is further contended by revenue that only two assets have been used in the transaction, USFDA plant and ANDA / IPR, the ownership of ANDA is the most important and the most contentious issue. Revenue contends that as per the evidences on record, it was SPIL who owned the ANDA rights and not SPG; Insofar as the risk is concerned; some of the litigation risk and the consequential burden have been admittedly borne by SPIL, the balance portion thereof has also been transferred to it as a result of merger in May; 2013."
3. In response to the above, the arguments of the Senior Counsel representing the Assessee have also been recorded by your Honours in the sub point (ii) and (iii) of the point (B) in the para 74 on page 88 of the order which is also reproduced as under:
"(ii). The AE thus owns the most important assets that drives the generic business - i.e. ANDA approval under the Para IV filing and MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.44
the product IPRs. It also faces the biggest risk of prolonged litigation / infringement as well as that arising from technology obsolescence.
(iii). Being the owner of the IPRs (ANDA and the product technology), AE took the entrepreneurial risks of commercialization of the product along with an impending threat due to the litigation already initiated, protecting the IPR title as well as the claims of infringement. The Appellant is a mere contract manufacturer that manufactures the products on behalf of SPG BVI. It bears no risks arising out of the IPRs Selling and Distribution is not carried out by the Appellant and it has been carried out by the overseas AE."
4. Further, the argument of the Senior Counsel representing the Assessee in context of agreement with Caraco have also been recorded by your Honours in the sub point 7 of the point (C) in the para 74 on page 92 of the order which is reproduced as under:
"7. The learned DR has also highlighted that the distribution agreement entered into with the Caraco was by SPIL and various clauses in the agreement were highlighted to bring out the proposition that ultimately it was SPIL which had performed the functions and been party to the distribution agreement. In this regard, it is highlighted that clause 11 of the said distribution agreement placed at Page 273 to 294 of the Paper-book, clearly provided that the assessee Company could perform any of the functions through one or more affiliates. In the present case, what is relevant is that the Affiliate Company namely SPG BVI has performed the relevant functions and assumed the relevant responsibilities and risks pursuant to the distribution agreement.
...
...
...
Hence it is clear that the relevant agreement if not properly read with the clause 11 and the actual conduct of the parties can be misleading and confusing which advantage the learned DR has tried to take but without any merits."
5. It is submitted that the Hon'ble Tribunal have very well considered the submission and counter submission of both the parties to the appeal and thereafter came to conclusion considering the facts and merits of the case.
6. We submit that it is clear case where the Revenue seeks recalling of the MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.
45order under the garb of rectification and thereby requiring your Honours to reconsider the decision already rendered on careful consideration of the facts and law.
Thus, the ground of the Revenue that your Honours have failed to take into consideration the primary facts before reaching a finding that the Assessee was only a contract manufacturer is not sustainable.
6. Allegation of the Revenue:
The Revenue contends that your Honours, while rejecting the application of the PSM method have only considered the submissions made by the Assessee and have not considered the entire factual matrix provided by it in this regard.
[page no. 10 para 21(e)of the MA] Rebuttals of the Assessee:
1. The order passed by your Honours justifies the selection of method for the purpose of determining ALP in a very precise and detailed manner.
2. As it can be seen from the para 84 on page 103 of the impugned order, your Honours have examined the application of the appropriate method in the given factual matrix by considering the OFCD guidelines as well referring the United Nations practice manual on transfer pricing.
3. Considering the guidelines, your Honours have taken a considerate view in para 86 on page 105 of the order by observing that PSM is found to be the most suitable method only in situations where there are highly integrated operations and in scenario where both the parties to the transactions make unique and valuable contributions.
4. Further, in para 91 on page 109 of the impugned order, your Honours have also evaluated the alternate situation, wherein the consequences have been discussed in a very precise manner in a case if PSM is held to be the most appropriate method. Thus, your Honours have decided on the issue by considering all the possible angles.
5. The allegation of the Revenue cannot be sustained in the given case since your Honours have decided on the matter with proper application of the mind.
Thus, the contention of the Revenue that your Honours while rejecting the application of PSM method have failed to consider the factual matrix provided by it is factually incorrect.
MA No.260/Ahd/2017ACIT Vs. Sun Pharmaceuticals Industries Ltd.
46It is further submitted that failure by the Hon'ble Tribunal to consider an argument advanced by either party for arriving at a conclusion shall not constitute mistake apparent on the record as held by the Bombay High Court in the case of CIT v. Ramesh Electric & Trading Co. (supra).
7. Allegation of the Revenue:
The Revenue is of the contention that your Honours have committed a mistake by failing to consider the documents found during the survey proceedings which resulted in rendering of such decision by the Hon'ble Tribunal that is having a wide ramification on the reassessment proceedings. [page no. 10 para 21(g) of the MA] Rebuttal of the Assessee:
1. In response to the above contention, it is submitted that in the present case the reassessment proceedings and the appellate proceedings are both distinct and independent of each other and cannot be linked in any manner whatsoever.
2. Further, it is submitted that the documents found during the survey proceedings, have been explicitly dealt by the CIT(A) while rendering its decision on the concerned issues. Thus, at the time of proceedings before the Hon'ble Tribunal, the documents found during the survey proceedings were already on record. A perusal of the impugned order clearly reveals that issue have been adjudicated by your Honours on merit after considering all the documents on record and after due application of mind.
3. Further without prejudice to the above contention, we submit that the reassessment proceedings are separate and distinct proceedings and that the same have not attained any finality. Thus, in light of this fact it is submitted that the claim of the Revenue that rendering of such decision would have wide ramifications on the reassessment proceedings is imaginary and without any bases.
Thus, the contention of the Revenue that your Honours have failed to consider the documents found during the survey proceedings is without any merits. Such an allegation by the Revenue would lower the esteem of the Hon'ble Tribunal since it alleges to establish the fact that the impugned order have been passed by your Honours without proper application of mind.
It is further submitted that failure by the Hon'ble Tribunal to consider an argument advanced by either party for arriving at a conclusion shall not MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.
47constitute mistake apparent on the record as held by the Bombay High Court in the case of CIT v. Ramesh Electric & Trading Co. (supra).
8. Allegation of the Revenue:
The Revenue is of the contention that your Honours have committed a mistake by not considering the oral and written submissions made by it while deciding on the issue with respect to selection of most appropriate method for determining ALP.
[page no. 11 para 21(h) of the MA] Rebuttals of the Assessee:
1. In response to the above allegation, a detailed submission already made in the Point No. 6 above can be considered, where in it has been discussed that the decision of the Tribunal with respect to the selection of method cannot be questioned since your Honours have covered all the possible angles and have justified the same in a very precise and detailed manner.
2. It is further submitted that in para 91 on page 109 of the impugned order, your Honours have examined the alternate situation wherein the consequences have been discussed in a very precise manner in a case if PSM is held to be the most appropriate method.
3. Further, we reiterate the reliance placed on the principle adopted by the Bombay High Court in the case of Ramesh Electric & Trading Co.
(supra)wherein it was held that:
"Failure by the Tribunal to consider an argument advanced by either party for arriving at a conclusion is not an error apparent on the record, although it may have been an error of judgement."
Thus, the Revenue has failed to consider the examination made by your Honours in its true sense and further the allegation by the Revenue that your Honours have omitted to take into consideration its argument is without any merits since the same cannot be considered to be an error apparent on record which can be rectified by filing application under section 254(2) of the Act.
Further assessee has relied decision on the following decision :
MA No.260/Ahd/2017ACIT Vs. Sun Pharmaceuticals Industries Ltd.48
• Hon'ble Gujarat High Court in the case of Principal Commissioner of Income Tax v. Nirma Ltd. [2017] 88 Taxman 188 (Gujarat) (Copy of Case decision is attached at Page No. 85 to 87 of paper Book).
• Hon'ble Gujarat High Court in the case of Commissioner of Income Tax (Exemption) v. Gujarat Institute of Housing Estate Developers [2017] 84 Taxman 148 (Gujarat) (Copy of Case decision is attached at Page No. 88 to 90 of paper Book).
• Hon'ble Gujarat High Court in the case of Commissioner of Income Tax v. Atul Ltd. [2016] 74 Taxman 255 (Gujarat) (Copy of Case decision is attached at Page No. 91 to 96 of paper Book).
Thus, it can be observed that the primary contention of the Revenue is that your Honours have failed to consider the written submissions, oral arguments and judicial precedents relied upon by it. We reiterate that your Honours have considered each and every argument advanced by both the parties and decided on the issue with proper application of mind. Further, it is submitted that such contentions of the Revenue raise questions on the proficiency of the Hon'ble Tribunal. Further, such arguments of the Revenue cannot be entertained since in no case whatsoever it amounts to an error apparent on record. It is well accepted legal principle that failure by the Hon'ble Tribunal to consider an argument or judicial precedent relied upon by either party would not constitute an error apparent on record. If such contentions of the Revenue are admitted, then every order passed by the Hon'ble Tribunal would be questioned and consequently will be sought for rectification. Thus, it is plea of the Assessee that it should be dismissed without any further consideration.
In view of the above submissions, it is reiterated that the allegations raised by the Revenue cannot be construed to be an error apparent from record which can be rectified under section 254(2) of the Act. Thus, the Miscellaneous Application filed by the Revenue seeking rectification of the order passed by your Honours is bad in law and facts and hence it is ought to be quashed without any due consideration."
4. We have duly considered the rival contentions and gone through the records carefully. Sub Section 2 of Section 254 has direct bearing on the controversy before us. Therefore it is imperative upon us to take note of the relevant part of section, which read as under:
MA No.260/Ahd/2017ACIT Vs. Sun Pharmaceuticals Industries Ltd.49
"Orders of Appellate Tribunal.
254. (1) The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. (1A) [***] (2) The Appellate Tribunal may, at any time within 63[six months from the end of the month in which the order was passed], with a view to rectifying any mistake apparent from the record64, amend any order passed by it under sub-section (1), and 64shall make such amendment64 if the mistake is brought to its notice by the assessee or the 65[Assessing] Officer :
Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this sub-section unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard"
As noticed above, the revenue has filed a detailed Misc. Application highlighting various facts and circumstances in order to point out alleged apparent error committed by the Tribunal while deciding the appeal. Both sides have made reference to a large number of decisions which we have taken note while taking cognizance of pleading in their submissions.
5. Before we embark upon an enquiry on the facts of present case in order to find out whether any apparent error committed by Tribunal or not while adjudicating the appeals, we think it appropriate to bear in mind certain basic principles for exercising the powers contemplated in Section 254(2) of the Income Tax Act, 1961.
6. There are series of decisions at the end of the Hon'ble Supreme Court as well as Hon'ble High Court expounding scope of exercising powers under section 254(2) of the Act. We do not deem it necessary to recite and recapitulate all of them, but suffice to say that core of all these authoritative pronouncements is that power for rectification under section 254(2) of the MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.
50Act can be exercised only when mistake, which is sought to be rectified, is an obvious and patent mistake, which is apparent from the record and not a mistake, which is required to be established by arguments and long drawn process of reasoning on points, on which there may conceivably be two opinions. For fortifying this view, we make reference to the decision of the Hon'ble jurisdictional High Court in the case of ACIT Vs. Saurashtra Kutch Stock Exchange Ld., 262 ITR 146 which has been upheld by the Hon'ble Supreme Court reported in 305 ITR 227. The Hon'ble Court has laid down following proposition while concluding the judgment:
"(a) The Tribunal has power to rectify a mistake apparent from the record on its own motion or on an application by a party under s. 254(2) of the Act;
(b) An order on appeal would consist of an order made under s. 254(1) of the Act or it could be an order made under sub-s. (1) as amended by an order under sub-s. (2) of s. 254 of the Act;
(c) The power of rectification is to be exercised to remove an error or correct a mistake and not for disturbing finality, the fundamental principle being that power of rectification is for justice and fair play;
(d) That power of rectification can be exercised even if a mistake is committed by the Tribunal or even if a mistake has occurred at the instance of party to the appeal;
(e) A mistake apparent from record should be self-evident, should not be a debatable issue, but this test might break down because judicial opinions differ and what is a mistake apparent from the record cannot be defined precisely and must be left to be determined judicially on the facts of each case;
(f) Non-consideration of a judgment of the jurisdictional High Court would always constitute a mistake apparent from the record, regardless of the judgment being rendered prior to or subsequent to the order proposed to be rectified;
(g) After the mistake is corrected, consequential order must follow and the Tribunal has power to pass all necessary consequential orders."MA No.260/Ahd/2017
ACIT Vs. Sun Pharmaceuticals Industries Ltd.
517. It is pertinent to observe that in hierarchy of appellate jurisdiction under the Income Tax Act, ITAT is the last fact finding appellate authority, thereafter appeal to the Hon'ble High Court under section 260A of the Act is provided on point of law involved therein. Operative force of the arguments advanced by Shri G. C. Srivastava on behalf of the revenue was that ITAT has conceived facts wrongly and cumulative effect of this conceivement of these wrong facts would be that they will goad the adjudicating authority on wrong conclusion. Assimilation of incorrect facts would lay foundation of wrong reason and result in an incorrect adjudication. We are conscious of the fact that error of fact and law in appreciating the circumstances section and provision could fall in the ambit of apparent error but not error of judgment reached after applying correct fact and correct law, because that will be process of adjudicating the controversy and that can lead to difference of opinion qua result. But if incorrect facts and incorrect provisions are considered, then that would come in the ambit of apparent error.
8. Apart from above, at the time of hearing, we have confronted the ld. Counsel for the revenue with the two judgments of the Hon'ble High Court rendered in the case of CIT Vs. Gujarat Institute of Housing Estate Developers, and Pr.CIT Vs. Nirma Limited both reported in 84 taxmann.com 148 and 188 (Guj). He has placed on record copies of both these judgments. In the case of Gujarat Institute of Housing Estate Developers (supra), the assessee received contributions from its members. It claimed non-taxability of such contributions on the principle of mutuality. However, the AO did not concur with the view of the assessee and dispute travelled upto the Tribunal. The Tribunal passed a common order dated 29.9.2015 confirming the view of the AO and the CIT(A) holding that such MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.
52income was taxable. In such order, Tribunal referred to the latest decision of Hon'ble supreme Court in the case of Bangalore Club Vs. CIT, 350 ITR 509 and noted that as per decision of the Hon'ble Supreme Court there are three basic features, which would have to be tested viz. complete identity between the class of contributors and the participators, the action of the participators and contributors should be in furtherance of the mandate of the association, and lastly that there should not be any scope of profiteering by the contributors from a fund made by them which could only be extended or returned to themselves. In this way, the Tribunal held that principle of mutuality would not apply in the case of assessee and dismissed its appeal. The assessee thereafter filed MA pointing out apparent error in the order of the Tribunal. This MA was allowed and order of the Tribunal was recalled. Dissatisfied with the order of the Tribunal, the Revenue went in appeal before the Hon'ble High Court and the Hon'ble High Court set aside the order of recall and restored the original one. It is imperative upon us to take the following finding of the Hon'ble High Court:
"4. In the present case, as noted the Tribunal had given detailed reasons for coming to the conclusion that the principle of mutuality would not apply. While accepting the assessee's rectification applications, the Tribunal undertook equally painstaking and elaborate consideration of the very same issues and very same facts to come to a contrary conclusion. It is not necessary nor possible for us to hold whether the Tribunal's first view was correct or the subsequent one. It is enough to hold that the Tribunal could not have undertaken such incisive and detailed examination of facts and law to come to the conclusion which are completely contrary to its own conclusion arrived at after detailed considerations. Such powers simply do not flow from the power of rectification under sub-section (2) of Section 254 of the Act."
9. Next decision discussed on this issue at the time of hearing is in the case of Nirma Ltd. In this case, the assessee had claimed interest expenditure under section 36(1) of the Act allegedly incurred by it on MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.
53premature redemption of secured premium notes issued by the company. The AO did not accept this claim of the assessee which was concurred by the CIT(A) as well as by the Tribunal. The assessee filed appeal against the order of the Tribunal before the Hon'ble High Court as well as filed MA before the Tribunal. The Tribunal earlier was of the view that since the assessee has filed appeal before the Hon'ble High Court, therefore, MA ought not to be taken up. But the assessee went to the High Court and direction was made for adjudicating the MA. After hearing the assessee the Tribunal recalled its order. Dissatisfied with the order of the Tribunal, the Revenue went in appeal before the Hon'ble High Court, and the Hon'ble Court has vacated the order of the ITAT. Finding recorded by the Hon'ble High Court explaining the power of the Tribunal under section 254(2) is worth to note. It reads as under:
"4. We have heard learned counsel for the parties. We have perused the documents on record. We are of the view that the Tribunal committed a legal error in recalling its earlier detailed judgement. As noted, there was a raging controversy between the Revenue and the assessee regarding the assessce company's claim of deduction of interest expenditure at all stages before the Assessing Officer. Commissioner (Appeals) and the Tribunal. This issue received minute scrutiny. The Tribunal in particular had referred to the facts on record, findings and the observations of the Assessing Officer and the Commissioner (Appeals) and ultimately gave its own reasoning for coming to the conclusion that the transaction leading to the assessee's claim of interest expenditure was not genuine and it ultimately put its seal on the decisions of the Revenue authorities. Whether .such opinion of the Tribunal was legally sustainable or not is the subject matter before us in the present tax appeal. The relevant question is, could the Tribunal have exercised the power of rectification to recall such judgement? The answer being obvious, is in the negative. The powers of rectification flowing from Section 254(2) of the Act are for correcting apparent errors and not for re-examination of the issues already considered and concluded. It is well recognised that the powers of rectification cannot be equated to that of review. The Tribunal thus travelled far beyond its power of rectification in accepting the assessee's various contentions which were not confined to pure factual errors apparent on the record. Some of the contentions of the assessee were highly contentious MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.54
legal issues. Once the Tribunal had taken a particular view, it was always open for the aggrieved party to challenge such views before the higher court. The Tribunal could not have been persuaded to re-examine the issues on the premise that there was an error apparent on the record."
10. In the light of above let's examine each issue agitated by the respective parties.
I. Issue on the interest on share application money:
A) Decision on issue raised by the Revenue in Para 5(i) in its MA
11. On perusal of the financial statement of the assessee as on 31-3-2008, we note that it was clearly shown in schedule 15 that the assessee has advanced to Sun Pharma Global Inc. BVI as share application money which is evident as under:
Loans/Advances due from Subsidiaries: (Rs. in Million) Balance as at Maximum Balance as at Maximum 31st March Balance 31st March, Balance 2008 2007 2006-07 Loans Sun Pharma Global - - - 2,9187.7 Inc. BVI Sun Pharmaceutical - - - 1.1 Peru SA Sun Farmaceutica - - - 18.3 LTDA Brazil Sun Pharmaceutical 0.1 0.7 0.1 0.7 UK Ltd.
Advances Share Application money to Sun Pharma Global 1,007.4 3,789.9 1,469.7 1,469.8 Inc. BVI Sun Pharma De 53.6 60.0 60.0 60.0 Mexico Sociedao Anonina Limited MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.55
Total 1,061.1 1,529.8
12. From the above it is clear that the share application money was duly disclosed in the financial statement. Thus the allegation of the Revenue that the assessee has disclosed the advances as share application money as well as loans is not tenable. The disclosure made in the annexure A to the notes on accounts of related party transactions cannot supersede the disclosure made in the schedule as discussed above.
13. We also note that the argument of the Revenue for the Board Resolution not mentioned in the order of ITAT is correct. But that does not lead to draw an inference that the order of the ITAT suffers from the apparent mistake. In this regard we place our reliance on the judgment of Bombay High Court in the case of Ramesh Electric & trading company reported in 77 taxman 43 wherein it was held as under:
"The Appellate Tribunal does not have any power to review its own orders under the provisions of the Income-tax Act, 1961. The only power which the Tribunal possesses is to rectify any mistake in its own order which is apparent from the record. This is merely a power of amending its order. In the instant case, in the first order of the Tribunal dated 9-6-1975, there was no mistake which was apparent from the record at all. The Tribunal was required to decide whether the commission payment of Rs. 54,000 was deductible under section 37 after examining the circumstances, the Tribunal came to the conclusion that it was not so deductible. The Tribunal cannot, in exercise of its power of rectification, look into some other circumstances which would support or not support its conclusion so arrived at. The mistake which the Tribunal is entitled to correct is not an error of judgment but a mistake which is apparent from the record itself. No such mistake was apparent from the record. In fact, this was doubtful, if this sort of an exercise could have been done by the Tribunal even if it had the power of review. The Tribunal had, patently, far exceeded its jurisdiction under section 254(2) in redeciding the entire dispute which was before it in this fashion, and the Tribunal had committed a gross and inexplicable error for reasons which could not be understood. The power of rectification under section 254(2) can be exercised only where the mistake is apparent from the record, and not a mistake which is required to be established by arguments and a long-drawn process of reasoning on points on which there might conceivably be two opinions. Failure by the Tribunal to consider an argument advanced by either party for arriving at a conclusion is not an error MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.56
apparent on the record, although it may have been an error of judgment. In the instant case, the alleged failure, at least on one count, was attributed by the assessee to the ITO and not the Tribunal Therefore, the Tribunal had no jurisdiction under section 254(2) to pass the second order."
14. Besides the above we also note that the Hon'ble ITAT has passed a speaking order considering many other facts which have been discussed in length therein and no infirmity on such finding was pointed by the Revenue. Therefore merely non-consideration of one of argument of the party will not lead to conclude that the order of the Tribunal suffers from the apparent mistake.
15. The provisions of section 254(2) of the Act can be invoked for the mistakes which are glaring in nature and can be pointed from the face of the order. The mistakes which require application of mind and long drawn process to arrive at the conclusion cannot amount to apparent mistake. If these types of mistakes are considered as apparent from record then it would lead to review the order. In this regard we find support & guidance from the judgment of Hon'ble Delhi High Court in the case Smt. Baljeet Jolly Vs. CIT reported in 113 taxman 38 wherein it was held as under:
"A bare look at section 254(2) makes it clear that a 'mistake apparent from the record' is rectifiable. In order to attract the application of section 254(2), the mistake must exist and the same must be apparent from the record. The power to rectify the mistake, however, does not cover cases where a revision or review of the order is intended. 'Mistake' means to take or understand wrongly or inaccurately; to make an error in interpreting; it is an error; a fault, a misunderstanding, a misconception. 'Apparent' means visible; capable of being seen; easily seen; obvious; plain. A mistake which can be rectified under section 254(2) is one which is patent, which is obvious and whose discovery is not dependent on argument or elaboration. The language used in section 254(2) makes it clear that only amendment to the order passed under section 254(1) is permissible where it is brought to the notice of the Tribunal that there is any mistake apparent from the record. Amendment of an order does not mean obliteration of the order originally passed and its substitution by a new order. What the assessee intended, to do in the instant case was precisely the substitution of the order, which was not permissible under the provisions of section 254(2) and, therefore, the Tribunal was justified in holding that there was no mistake apparent on the face of the record. Where an MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.57
error is far from self-evident, it ceases to be an apparent error. It is no doubt true that a mistake capable of being rectified under section 254(2) is not confined to clerical or arithmetical mistake. On the other hand, it does not cover any mistake which may be discovered by a complicated process of investigation, argument or proof. As observed by the Apex Court in Master Construction Co. (P.) Ltd. v. State of Orissa [1966] 17 STC 360, an error which is apparent on the face of the record should be one which is not an error which depends for its discovery on elaborate arguments on questions of fact or law."
16. We also note that the ITAT in its order has made the reference to the word 'RECHARACTERIZATION' for deciding the issue on hand and this is not the sole basis for granting the relief to the assessee. Therefore the question of recharacterization of the money does not arise. Hence in our considered view the facts of the case were not misconceived by the ITAT as discussed in the order.
B) Decision on issue raised by the Revenue in Para 5(ii) in its MA
17. Regarding the issue of applicability of Companies Act 1956 to the foreign company, we note that the Revenue has referred the provisions of Companies Act for the allotment of shares to strengthen its case. Although the Revenue at the time of hearing of the appeal fairly agreed that the provision of Companies Act cannot be applied to the foreign companies. However we further note that the ITAT in its order has made the reference to the Companies Act for deciding the issue on hand. But this was not the only basis for granting the relief to the assessee. Therefore we note that there was no mistake apparent from the record.
18. We also find that the case law i.e. Logix Microsystems Ltd. (Supra) as relied by the learned Counsel for the Revenue at the time of hearing of appeal was duly recorded by the ITAT in its order. However we find that ITAT while deciding the issue has not made any reference to such order.
MA No.260/Ahd/2017ACIT Vs. Sun Pharmaceuticals Industries Ltd.
58But in our view non-mentioning the order in the concluding paragraph does not lead to hold that there is mistake apparent from record. Once the argument of the party has been the recorded by the ITAT but the same was not considered while deciding the issue on hand could be a mistake of the judgment but the same cannot be construed as mistake apparent from record. In this regard we find support and guidance from the order of Pune Tribunal in the case of Poona pearls poultry breeding farms & hatcheries v DCIT reported in 58 ITD 1(PUNE) (TM). The relevant extract of the order is reproduced below:
"What is rectifiable under section 254(2) is a mistake which is apparent. It must be one for the discovery of which no elaborate reasoning or enquiry is necessary. A bare look at section 254(2) makes it clear that a mistake apparent from record is rectifiable, but in order to attract that section, the mistake must exist and it must be prima facie apparent from the record. To mistake means to take or understand wrongly or inaccurately; to make an error in interpreting; it is an error; a fault; a misunderstanding or misconception. Unless the alleged mistake falls in these categories, it could not be taken as a mistake apparent from record. In other words, where the Tribunal has committed an error of judgment, the same cannot be sufficient to exercise the power of rectification under section 254(2). The correctness of a conclusion on facts cannot be the subject-matter of an application for rectification. If the Tribunal on the facts and on the circumstances has taken a conscious decision, that decision cannot be upset by either party to the dispute by moving an application for rectification. Such an application, in fact, would amount to review of the proceedings which the Tribunal is not entitled to do. The Tribunal is the creature of law and, therefore, is debarred from reviewing its own decision. Only a mistake can be rectified by the Tribunal on its own motion or by an application made in this behalf.
On perusal of the order of the Tribunal, it could be seen that it had discussed only one decision out of so many decisions with identical facts cited by the assessee and neither accepted the decisions nor mentioned the other decisions in its order. It could not be said that non-mention of the other decisions had affected the result of the appeal of the assessee. Therefore, the absence of specific mention of the other decisions, did not constitute a mistake apparent from record.
It is well-settled that the decision of the Tribunal need not be scrutinised sentence by sentence merely to find out whether all facts have been set out in detail by the Tribunal or, whether some incidental facts which appear on the record have not been noticed by the Tribunal in its judgment. If on a bare reading of the judgment of the Tribunal one has found that it has taken into account all relevant material and has also not taken into account any irrelevant MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.59
material for basing its conclusions, the decision of the Tribunal is not to be interfered with. It is not necessary for the Tribunal to state in its judgment specifically in express words that it has taken into account the cumulative effect of the circumstances, or, has considered the totality of the facts, as if that is a magic formula; if the judgment of the Tribunal showed that it has in fact done so, there was no reason to come to the conclusion that there is an error in the order of the Tribunal.
A careful reading of the appellate order of the Tribunal in the instant case clearly indicated that whatever evidence was filed by the assessee before the Tribunal, it had been taken into account to decide the appeal. All the judicial decisions cited before the Tribunal were considered, though only one decision was mentioned. There was no necessity of mentioning the other decisions as the issue decided in those cases was the same. In other words, by rejecting the decision mentioned in judgment, the Tribunal had rejected the other decisions decided on similar facts. The omission to mention all other decisions, therefore, was no mistake apparent from record within the meaning of section 254(2). The controversy whether the poultry building is a plant or not has not been set at rest either by a jurisdictional High Court decision or by a Supreme Court decision. Some Benches of the Tribunal have taken a view that the poultry building is a plant, while other Benches have differed from that view. If one of the available views is adopted by the Tribunal. This will not constitute a mistake apparent from record.
The assessee contention based on paragraphs 8 and 13 of the Tribunal's order could not be accepted as these paragraphs did not contain findings of the Tribunal but only arguments advanced by the assessee and the revenue respectively Again, the proposition that an appellate order of the Tribunal is binding on other Benches of the Tribunal is conventional only and not mandatory. There are many decisions where one Bench of the Tribunal may have taken a view different from another Bench on similar facts.
The perceptions of the Members constituting the Bench may differ. In such a circumstance, it must be the duty of the parties to the dispute to make a specific request to the Tribunal to refer the matter to the Special Bench. In the instant case, no request seemed to have been made by the assessee. Therefore, there was no mistake apparent from record, which could be rectified under section 254(2).
Therefore, the view expressed by the Accountant Member to the effect that the miscellaneous application was to be dismissed, was agreed to."
C) Decision on issue raised by the Revenue in Para 5(iii) in its MA MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.
6019. We further note that the principles laid down by the Honourable Apex Court in the case of Honda siel power products ltd. v. CIT reported in 165 taxman 307 that non-consideration of the order of the coordinate bench will amount to a mistake apparent from record. But in our considered view the principles as laid down by the Apex Court are not applicable to the present facts of the case on hand. In the case of Honda siel power products ltd. supra the mistake was admitted by the ITAT and thereafter rectification order was passed. However in the case before us, we note that the ld. Representatives from both the sides cited various judgments as available on the records before us and order was delivered by the ITAT after considering and placing the reliance on the decision of the coordinate bench. Therefore in our considered view the principles laid down by the Apex Court in the case of Honda siel power products ltd. cannot be applied to the present facts of the case. Thus we hold that non-mentioning the decision of the coordinate bench in the case of SR thorat milk products reported in 70 taxmann.com 261 cannot lead to draw an inference that there is a mistake in the order of ITAT which is apparent from record. For this proposition we further extend our reliance in the order of Pune Tribunal in the case of Poona pearls poultry breeding farms & hatcheries v DCIT reported in 58 ITD 1(PUNE) (TM) the relevant extract of the order has already been reproduced in the preceding Paragraph. But for the better understanding & clarity we reproduce the same as under:
"On perusal of the order of the Tribunal, it could be seen that it had discussed only one decision out of so many decisions with identical facts cited by the assessee and neither accepted the decisions nor mentioned the other decisions in its order. It could not be said that non-mention of the other decisions had affected the result of the appeal of the assessee. Therefore, the absence of specific mention of the other decisions, did not constitute a mistake apparent from record."
D) Decision on issue raised by the Revenue in Para 5(iv) in its MA MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.
6120. Regarding the order of coordinate bench in the case of Sterling resources private Limited in ITA number 1791 of the Mumbai of the 2014, we note that the assessee claimed to have filed the same in the paper book in annexure K pertaining to the assessment years to 2007-08 and 2008-09. The learned DR before us has not brought anything on record contrary to the arguments advanced by the learned Counsel for the assessee. In addition to the above we also note that there were many orders/judgments which were offered by the Tribunal while passing the order. Thus on this count in our view there cannot be any mistake apparent from the record as alleged by the learned Counsel of the Revenue.
E) Decision on issue raised by the Revenue in Para 5(v)in its MA:
21. We have already held that non-consideration of the argument raised by the party at the time of hearing will not lead to draw an inference that there is a mistake in the order of Hon'ble ITAT. In this connection we have placed the reliance on the order of Bombay High Court in the case of Ramesh Electric & trading (Supra) which has already been discussed in the preceding paragraph.
F) Decision on issue raised by the Revenue in Para 5(vi) in its MA:
22. From the order of the ITAT we note that it was heard on 8th May 2017 and it was pronounced on 16 June 2017. Thus it implies that the order was kept reserve for pronouncement. Therefore there is no merit in the argument of the Revenue that Hon'ble ITAT agreed to restore the issue for fresh adjudication to the TPO which was subsequently passed after due consideration. Accordingly we hold that non-consideration of the argument raised by the party which was not considered by Hon'ble ITAT will not lead MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.
62to draw an inference that the order suffers from any infirmity which is apparent from record.
II. Issue on the interest on OFCD A) Decision on issue raised by the Revenue in Para 8 & 9 in its MA
23. In this regard we note that both the ld. Authorized Representatives duly argued at the time of hearing the appeal for the judgment of Supreme Court in the case of Sahara India Real Estate civil appeal number 9813 of 2011. This fact was also recorded by the Tribunal in its order. However we find that ITAT while deciding the issue has not made any reference to such order. But non-reference to the judgment does not lead to conclude that there is mistake apparent from record in the order of ITAT. Once the argument of the party has been the recorded by the ITAT but the same was not considered while deciding the issue on hand could be a mistake of the judgment but the same cannot be construed as mistake apparent from record. In this regard we find support and guidance from the order of Pune Tribunal in the case of Poona pearls poultry breeding farms & hatcheries v DCIT reported in 58 ITD 1(PUNE) (TM) the relevant extract of the order has been reproduced in the preceding paragraph.
B) Decision on issue raised by the Revenue in Para 10, 11, 12, 13 & 14 in its MA
24. The Revenue also submitted that the binding precedents argued by it at the time of hearing of appeal were not recorded in the order of ITAT. Similarly it was also submitted that the master circular of RBI was also not referred by the ITAT while deciding the issue on hand. However in our considered view non-mentioning of the argument of the party does not lead to draw an inference that the order of the ITAT suffers from the apparent MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.
63mistake. In this regard we place our reliance on the judgment of Bombay High Court in the case of Ramesh Electric & trading company reported in 77 taxman 43 which has already been discussed in the preceding paragraph.
25. We also note that the ITAT has passed a very speaking after considering various judgments passed by the Apex Court, Jurisdictional High Court and Tribunal. There were lots of arguments raised by the ld. DR at the time of original hearing out of which various were also recorded in the order of Hon'ble ITAT. Thus we hold that the ITAT has taken a conscious decision after due application of mind. Thus the order of the tribunal does not suffer from any infirmity which apparent from record.
III. Issue of commission on corporate guarantee Decision on issue raised by the Revenue in Para 17 & 18
26. In this regard we note that the Tribunal consciously decided not to refer the matter to the special bench. It is not the case of the Revenue that ITAT has not considered the request for making the reference to the special bench. It is a fact available on record that the request for making the reference to the special bench was rejected by the ITAT on the ground that similar issue is pending before the Hon'ble High Court and accordingly a direction was issued to the ld. CIT(A) to adjudicate the issue in the light of the judgment of the Hon'ble High Court. From the finding of the ITAT there is no ambiguity that there is no mistake apparent from the record. The argument of the ld. DR for the Revenue that no case is pending in the own case of the assessee before the Superior Court and therefore the matter can be referred to the special bench in view of the judgment of this coordinate bench in the case of General Motors India private Limited (supra). However we disagree with the argument of the learned DR on the ground MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.
64that the judgment of the Hon'ble High Court will be applicable to all the assessee involving similar facts and it will not be applied to a particular case in which the issue was decided. Accordingly we hold that there is no mistake in the finding of the Tribunal which is apparent from the record.
Issue on the admission of additional evidence Decision on issue raised by the Revenue in Para 20
27. The learned DR for the Revenue submitted that additional evidences were filed in the application dated 30 September 2016 which were considered by the learned that CIT-A in her order. The learned DR also submitted that these additional evidences were not considered by the ITAT in its order. In this regard we note that once the documents filed before the ITAT have been considered by the learned CIT-A, then it will not be called as an additional evidences. It is because the documents filed before the CIT- A have already been considered while adjudicating the issue on hand.
28. Similarly we note that, the application dated 21st of April 2017 of the Revenue for filing the additional evidences, had been duly considered by the ITAT in its order vide paragraph number 79 placed on page 100 of the order. If the contention of the revenue is considered then it will amount to review of the order of the Tribunal which is not permitted under the provisions of section 254 (2) of the Act. The relevant provision of the section is extracted below:
29. Similarly we also note that the Revenue has requested at the time of hearing the appeal for obtaining the additional documents from the assessee for better appreciation of the facts in dispute. But the same request was not considered by the ITAT in its order. The ITAT has passed the order after detailed reasoning while deciding the issue on hand. Thus the request of the MA No.260/Ahd/2017 ACIT Vs. Sun Pharmaceuticals Industries Ltd.
65Revenue to call for certain documents from the assessee for deciding the issue on hand which in the opinion of ITAT are not relevant cannot amount to a mistake apparent from record. As such we are of the view that the request made by the Revenue in the course of hearing is not an additional document which requires separate adjudication. Thus the principles laid down by the Honorable Supreme Court of India in the case of Jyotsna Suri v. ITAT reported in 128 taxman 33 are not applicable to the present facts of the case. Thus we are reluctant to draw any supporting guidance from such judgment as relied by the learned DR for deciding the issue on hand. Thus in our considered view non consideration of the request made by the Revenue cannot amount to a mistake which is apparent from the record.
30. We also note that the ld. DR at the time hearing relied on the strengths of various judgments in its submission but on perusal of same, we are of the prima facie opinion that the ratio laid down by the Hon'ble Respective Courts/ Tribunals are not applicable to the present facts of the case. Therefore we are reluctant to extend our reliance on those judgments/ orders while deciding the issue on hand.
31. In view of the above discussions and finding, we are of the view of that there is no merit in the Misc. Application filed by the Revenue, which is accordingly dismissed.
MA No.260/Ahd/2017ACIT Vs. Sun Pharmaceuticals Industries Ltd.
6632. In the result, Misc. Application of the Revenue is dismissed.
Order pronounced in the Court on __28th _September, 2018.
Sd/- Sd/- (RAJPAL YADAV) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad; Dated 28/09/2018
आदे श क "#त$ल%प अ&े%षत/Copy of the Order forwarded to :
1. अपीलाथ( / The Appellant
2. ")यथ( / The Respondent.
3. संबं धत आयकर आय+ ु त / Concerned CIT
4. आयकर आय+ ु त(अपील) / The CIT(A)
5. %वभागीय "#त#न ध, आयकर अपील य अ धकरण / DR, ITAT,
6. गाड/ फाईल / Guard file.
आदे शानुसार/ BY ORDER, True Copy उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील य अ धकरण, अहमदाबाद / ITAT, Ahmedabad