Income Tax Appellate Tribunal - Mumbai
Tata Consultancy Services Ltd, Mumbai vs Dcit Ltu -1 ( Now Acit Circle 3 ( 4 ), Mumbai on 23 August, 2021
IN THE INCOME TAX APPELLATE TRIBUNAL,
MUMBAI BENCH "I", MUMBAI
BEFORE SHRI RAJESH KUMAR, ACCOUNTANT MEMBER AND
SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER
MA No.15/M/2021
[Arising out of IT(TP)A No.794/M/2018]
Assessment Year: 2010-11
MA No.66/M/2021
[Arising out of IT(TP)A No.1207/M/2018]
Assessment Year: 2010-11
MA No.17/M/2021
[Arising out of IT(TP)A No.3263/M/2017]
Assessment Year: 2008-09
MA No.65/M/2021
[Arising out of IT(TP)A No.3746/M/2016]
Assessment Year: 2008-09
Asst. Commissioner of M/s. Tata Consultancy
Income Tax, Cir 3(4), Services Ltd.,
Centre-1, 29th Floor, 9th Floor,
Vs.
World Trade Centre, Nirmal Bldg.,
Cuffe Parad, Nariman Point,
Mumbai - 400005 Mumbai - 21
PAN: AAACR4849R
(Appellant) (Respondent)
MA No.59/M/2021
[Arising out of ITA No.3263/M/2017]
Assessment Year: 2008-09
M/s. Tata Consultancy DCIT LTU-1 (Now ACIT
Services Ltd., Circle 3(4),
9th Floor, 29th Floor, Centre-1,
Vs.
Nirmal Bldg., World Trade Centre,
Nariman Point, Cuffe Parad,
Mumbai - 21 Mumbai - 400005
PAN: AAACR4849R
(Appellant) (Respondent)
Present for:
Assessee by : Shri Porus Kaka, A.R. &
Shri Manish Kant, A.R.
Revenue by : Shri S.S. Iyengar, Sr. D.R.
MA No.15/M/2021 & ors
2 [Arising out of IT(TP)A No.794/M/2018] & ors
M/s. Tata Consultancy Services Ltd.
Date of Hearing : 11.06.2021
Date of Pronouncement : 23.08.2021
ORDER
Per Rajesh Kumar, Accountant Member:
By virtue of these 4 miscellaneous applications the Revenue seeks rectification of the order passed by the co- ordinate bench of the Tribunal dated 18.08.2020 in ITA No.3263/M/2017 & ors the said order contained apparent mistakes. Similarly by virtue of miscellaneous application filed by the assessee, the assessee seeks the rectification of order passed by the Tribunal in ITA No.3263/M/2017 A.Y. 2008-09.
MA Nos.15, 17, 65 & 66/M/2021 (Revenue's MAs)
2. The Ld. D.R. submitted that the contentions and submissions of the revenue have not been considered while passing the order by the co-ordinate bench of the Tribunal and thus the order of the bench is giving totally a different perspective and view. The ld DR submitted that the in view of the said fact the order passed by the tribunal is suffering from several mistakes which may be rectified. The Ld. D.R. submitted that these mistakes have occurred because the co-ordinate bench of the Tribunal has failed to incorporate the arguments oral as well as written presented by the Revenue in its defense and in various paras of the order though the arguments have been mentioned but the same has not been dealt with in the operative part of the order. Referring to MA No.17/M/2021 Assessment Year: 2008-09, the ld DR submitted that while deciding the ground No.1 dealing with disallowance of deduction of state taxes paid overseas, in para 13 it has been stated that MA No.15/M/2021 & ors 3 [Arising out of IT(TP)A No.794/M/2018] & ors M/s. Tata Consultancy Services Ltd.
the DR of revenue supported the order of the lower authorities whereas, the ld CIT DR, on this issue, has made elaborate submissions vide pages 20 to 29 of written submissions. The operative part/decision is in Para 15 stating that considering the decision of the Tribunal for A.Y 2009-10 on identical grounds of appeal wherein neither variation of facts nor any contrary law is brought to the notice, hence the ground is allowed. The ld. DR submitted that tribunal without dealing with the arguments of the ld DR, has proceeded to follow its earlier decision for AY 2009-10. It is pertinent to note that the issues raised by ld CIT DR were not considered by the tribunal in its earlier order, however they have not been dealt with while rendering the decision for the present appeal despite the same being submitted for consideration. Hence this also is a mistake apparent from record. The ld. DR stated that elaborate written submissions were made by ld DR in pages 11 to 20 emphasising that that the decision in the case of Reliance Infrastructure Ltd 390 ITR 271 (Bom) was rendered in the context that revenue has not even urged that context of section 40(a)(ii) of the Act would require it to mean tax paid anywhere in the world and not only tax payable/paid under the Act. Para 9 on page 14 of written submission it had highlighted the fact that the above decision had been considered by Ahmedabad tribunal in Elitecore Technologies P Ltd. and differentiated, but the same has not been considered in this order. The ld DR also referred to binding decision of Hon. Bombay High Court in the case of Lubrizol India Ltd. 54 Taxmann 363 (BOM) which is approved by SC I 219 ITR 581 in Smith Kline and French (India) Ltd,, In this decision, it was held that word "any" qualifies both rate and tax.
MA No.15/M/2021 & ors 4 [Arising out of IT(TP)A No.794/M/2018] & ors M/s. Tata Consultancy Services Ltd.
"3. While deciding the ground No 3 dealing with foreign tax credit u/s 90(1)(a)(ii) of the Act,in Para 21, the ld DR submitted that tribunal has noticed that "The ld DR for the revenue in his written submissions after referring the decision of Karnataka High Court in Wipro Ltd (supra) submitted that the decisions on which decision was rendered is stand overruled by Supreme Court" However, the tribunal without dealing with the argument of the relied upon decision being overruled by the Hon. Apex Court, proceeded to follow its order for AY 2009-10. The tribunal in AY 2009-10, has not dealt with the binding decision of Hon. Supreme court in the case of Yokogawa India Ltd [2017] 77 taxmann.com 41 (SC). Hence this is a mistake apparent from record. The ld AR, in para 20 page 22, has stated that the decision in the case of Yokogawa is already considered in the case of Wipro by Hon. Kar High court. In fact, this is not the correct legal position as made out to be. The Hon. Kar High court in para 48 of its decision in Wipro Ltd(supra) has referred to its earlier decision of 2012 in case of Yokogawa whilst the ld CIT DR referred to a subsequent decision of Hon. SC in the case of Yokogawa rendered in 2017 [2017] 77 taxmann.com 41 (SC)."
3. The ld DR further submitted that in Para 22 in the impugned order, the tribunal has relied on the earlier year decision in the assessee's own case for A.Y 2009-10 and in Para 23 it has mentioned that no variation has been pointed out by the DR and hence it followed the earlier year order thereby not acknowledging the written submissions on the point. The tribunal in para 6,7 and 8 has narrated the submissions of the ld DR that decision of Hon. Bombay High Court in the case of Sesa Goa, is 'per-incurium' in view of the fact that the binding decision of Hon. Supreme Court in the case of K Srinivasan has not been considered. This aspect has not been dealt with by the tribunal while deciding the issue in favor of assessee. This is a mistake apparent from record and thus prayed that the order may be rectified or recalled. In defense of his arguments, the Ld. D.R. relied on the following decisions namely;
1. CIT vs. Mithalal Ashok Kumar (1987) 158 ITR 758 (MP)
2. Income Tax Officer vs. Income Tax Appellate Tribunal (1965) 58 ITR 634 wherein ratio is that con MA No.15/M/2021 & ors 5 [Arising out of IT(TP)A No.794/M/2018] & ors M/s. Tata Consultancy Services Ltd.
consideration of material and argument of the assessee constitute a mistake apparent from record.
The Ld. D.R. has also filed detailed written submission pointing out that the various paras in the decision of the co-ordinate bench of the Tribunal wherein the arguments of the Revenue have not been considered. Therefore the ld. DR prayed before the bench that to that extent order of the tribunal is wrong and contain patent mistakes and may kindly be rectified.
4. The ld Senior counsel for the assessee argued in detail defending the order passed by the coordinate bench pointing out that each and every arguments as put forward by the Revenue has been duly considered in the order by specifically mentioning the paras by taking the bench through the impugned order. The ld. Counsel of the assessee also filed pointwise reply to the written submissions filed by the revenue. The Ld AR further submitted that it is not necessary that all the written submissions filed by the revenue must be reproduced in the order but considering and dealing with the same is suffice. The ld AR also stated that the coordinate bench followed the earlier year order in assessee's own case A.Y. 2008-09 and also the decision of Hon'ble Bombay High Court. The ld counsel also stated that the case laws as relied by the revenue in support of rectification are not applicable as none of the arguments/submissions were overlooked and left out while passing the order. For the sake of convenience the written submissions filed by the assessee are reproduced below:
1) MA Nos. 15 & 17 of 2021 of the Department consist of similar grounds for AYs 2010-11 and 2008-09 respectively. In the combined tribunal order dated 18th August 2020, appeals related to AY 2010-11 have been taken up first as the lead MA No.15/M/2021 & ors 6 [Arising out of IT(TP)A No.794/M/2018] & ors M/s. Tata Consultancy Services Ltd.
case. Therefore, MA No. 15/2021 is taken up first hereinbelow. We also deal with issues in sequence as dealt with by this Hon'ble tribunal in its order.
2) The Department in its MA (15/2021) has alleged mistakes apparent in the order of this tribunal on the erroneous premise that its oral and written submission have not been considered while dealing with three issues namely;
a) Additional ground of appeal filed by the assessee
b) Disallowance of state taxes paid overseas to the local / state provincial authorities
c) Foreign tax credit as per the provisions of section 90(1)(a)(ii) of the Act
3) It is most respectfully submitted that the above assertion of the Department is factually incorrect as both parties were heard at length at the time of hearing by this Hon'ble tribunal. Department filed a detailed written submissions and the assessee thereafter filed point by point rebuttal to every argument of the Department. In fact, the order of the tribunal at several places refers to and deals with the submissions of the Department and the rebuttal by the assessee.
4) It is most humbly submitted that this tribunal in its order has discussed and analysed the additional ground of the assessee as the first issue and in detail before adjudicating in favour of the assessee. The discussion on the additional ground in specific starts at paragraph 5 at page 10 of the tribunal's order wherein the additional ground being the pure legal issue was raised in light of various judgements including of the jurisdictional High Court and this tribunal. At paragraphs 6 & 7 on page 11 of the tribunal's order, the tribunal notes the detailed submissions of the Department. In paragraph 8 on page 12 of the tribunal's order, assessee's rejoinder has been noted. Finally, this hon'ble tribunal in paragraphs 9 & 10 on page 14 of its order after considering submissions of both sides concluded by following the jurisdictional High Court's judgement in Sesa Goa Ltd [(2020) 117 taxmann.com 96 (Bom)]. Further, this Hon'ble tribunal in paragraph 10 of its order specifically notes that - The objections raised by ld DR for the revenue that the decision of Bombay High Court is per-incurium, is not tenable as the decision of Hon'ble Supreme Court in Smith Kline & French (India) Ltd. has also been specifically considered by Hon'ble Rajasthan High Court in Chambal Fertilizer (supra).The assessee in course of the hearing and in its rebuttal to Department's written submissions highlighted the jurisdictional High Court's judgement in CIT v. Lata Mangeshkar Medical Foundation in Notice of Motion Nos. 1779 & 1783 of 2017 In ITA (LODG) Nos. 2320 & 2319 of 2017 wherein the Hon'ble Bombay High Court has held that as a lower Court it is not open for them to disregard the decision of the Apex Court being the higher court as per incuriam.This Hon'ble Tribunal being a court subordinate to the jurisdictional High Court of Bombay is bound by its judgements.Hence, there is no mistake apparent in the order of this tribunal where it has followed the binding judgement of its jurisdictional High Court and has also considered submissions of the Department before adjudicating the issue in favour of the assessee.
5) Before proceeding further, it is most respectfully highlighted at the outset that this hon'ble tribunal in paragraph 11 on page 15of its order notes the upfront assertions of the assessee and also the detailed written submissions filed by the Department.
MA No.15/M/2021 & ors 7 [Arising out of IT(TP)A No.794/M/2018] & ors M/s. Tata Consultancy Services Ltd.
6) The Department in its MA has also alleged that there is mistake apparent from record as this hon'ble tribunal while dealing with ground (1) of assessee's appeal on disallowance of state taxes paid overseas to the local / state provincial authorities (State Taxes) of INR 1,73,23,854 has not discussed the oral and written submissions of Department.
7) The assessee herein most respectfully submits that this hon'ble tribunal at the outset (in paragraph 11) takes note of the detailed written submissions filed by the Department. MA and the written submissions filed by the Department itself notes that Hon'ble ITAT in assessee's own case for AY 2009-10 has decided identical grounds. Further, in paragraph 14 of the order, the tribunal notes that submissions of both parties have been considered and order of the tribunal in assessee's own case for AY 2009-10 on identical grounds following the binding judgement of the jurisdictional High Court of Bombay in case of Reliance Infrastructure Ltd. No error / mistake can be found in the order of tribunal if it has followed the binding judgement of the jurisdictional High Court and its coordinate bench in assessee's own case for AY 2009-10. This Hon'ble tribunal on pages 16-18 has reproduces the relevant discussions on the issue including the jurisdictional high court's judgement and concludes in favour of the assessee in paragraph 15 by following the aforementioned binding judgements.Further, the Department in its written submissions filed at the time of hearing of appeals, at page 18 refers to the Circular No. 14/2006 of CBDT which has been dealt with by the Hon'ble Bombay High Court in Reliance Infrastructure, in great detail.
8) Thereafter, Department in its MA has similarly alleged that this tribunal while dealing with ground (3) of the assessee's appeal on foreign tax credit as per the provisions of section 90(1)(a)(ii) of the Act has not discussed the oral and written submissions of Department.
9) It is most respectfully submitted that this tribunal in paragraphs 20 and 21 at pages 21 and 22 of the tribunal's order has repeatedly noted, discussed and considered Department's submission on judgements in cases of Yokogawa and Wipro of the Karnataka High Court. MA filed by the Department itself partially reproduces paragraph 21 and 22 of the tribunal's order interalia discussing Department's written submissions and further taking note of tribunal's ruling in assessee's own case for AY 2009-10 has deciding identical grounds. Department in its written submissions on pages 21 and 22 had taken contentions related to judgements of Karnataka High Court in Wipro and Yokogawa, which has been found to be false by this tribunal in paragraphs 20 and 21 of its order.This tribunal finally followed the binding coordinate bench ruling on identical issue in assessee's own case for AY 2009-10 in paragraphs 22 and 23 at pages 22 to 25 of its order. Hence, there is no mistake apparent in the order of this tribunal where it has followed the binding coordinate bench ruling in assessee's own case and considered submissions of the Department before adjudicating the issue in favour of the assessee.
10) Grounds taken in MA 17 / 2021 for AY 2008-09 filed by the Department are identical to MA 15 / 2021 discussed above and therefore aforesaid submissions of the assessee shall be considered for MA 17 / 2021 as well. The only additional submission in MA 17 / 2021 to be noted by this tribunal is that ground no. 5 of the assessee's appeal in AY 2008-09 was not even adjudicated by this tribunal for which the assessee has separately filed it MA 59 / 2021 MA No.15/M/2021 & ors 8 [Arising out of IT(TP)A No.794/M/2018] & ors M/s. Tata Consultancy Services Ltd.
(dealt with separately in a separatewritten submissions filed). Therefore, MA 17/2021 of the Department so far as it alleges mistake in adjudication of assessee's appeal on foreign tax credit is factually wrong and a merely copy pasted from its MA 15/2021 related to AY 2010-11 and ought to be dismissed at the outset.
I. Department's Letters dated 2nd March 2021 enclosing additional grounds
11) Further, Department has filed two additional letters, both dated 2nd March 2021 which does not even allege any mistake apparent in the order of the tribunal and merely makes arguments / submissions related to transfer pricing issues already adjudicated by the tribunal in its order dated 18.8.2020. It ought to be noted that CIT(A) while deciding the issues followed its own order in AY 2009-10 which thereafter has been adjudicated and / or confirmed by this tribunal. This tribunal in AY 2010-11 and 2008-09 has followed its detailed order for AY 2009- 10 in assessee's own case.
a) It ought to be noted that on the issue of Provision of Software, Technical and Consultancy Services, the Department is attempting to reargue the entire case which surprisingly includes additional grounds related to comparables in three different geographic regions which was not even raised as a ground of appeal by the Department before this tribunal. It may be noted that this tribunal in last 5 lines on page 38 and on page 39 of its order taken note of the arguments and submissions before the tribunal. The limited issue argued before the tribunal was on the manner of computation of PLI and treatment of pass-through cost both of which was argued at length in AY 2009-10 and adjudicated in favour of the assessee by order of this tribunal with a detailed reasoning.It may further be noted that CIT(A) in its order while adjudicating the issue even allowed TPO to verify comparable margins and the learned TPO while giving effect to CIT(A)'s order called for financials (10K reports) of the comparables before finalizing the benchmarking for different geographical regions considering assessee's AEs as tested party as held by TPO himself.In paragraph 44 from page 39 to 43 of its order, this tribunal after considering the rival submissions of the parties, follows the detailed order on the identical issue from pages 40 - 43.Finally, the tribunal notes in paragraph 45 on page 43, that contentions raised by Department has been considered and no variation in facts nor any contrary law is brought to the tribunal's notice. Hence, there is no mistake apparent in the order of this tribunal where it has followed the binding coordinate bench ruling in assessee's own case and considered submissions of the Department before adjudicating the issue in favour of the assessee.
b) Another additional ground of the Department in these letters is related to order of this tribunal following the jurisdictional Bombay High Court in Everest Kanto and its own ruling in AY 2009-10 adopting the guarantee commission rate of 0.5%. It ought to be noted that again no mistake apparent in the order has been pointed out and merely additional grounds have been filed in an attempt to reargue the entire issue. The tribunal in its order at pages 44 to 48 has considered this issue in detail. The tribunal specifically notes the Department's submission in MA No.15/M/2021 & ors 9 [Arising out of IT(TP)A No.794/M/2018] & ors M/s. Tata Consultancy Services Ltd.
paragraph 47 on pages 44 and 45 and assessee's reliance on the Bombay High Court judgement in Everest Kanto and in its own case in paragraph
48. Thereafter, the tribunal after considering rival submissions in paragraphs 49 and 50 follows it own order in AY 2008-09 based on binding jurisdictional High Court's decision in the case of Everest Kanto. Hence, there is no mistake apparent in the order of this tribunal where it has followed the binding judgement of its jurisdictional High Court and has also considered submissions of the Department before adjudicating the issue in favour of the assessee.
c) It may also be noted that these letters have been filed on 2nd March 2021 beyond the period of 6 months from end of the month (August, 2020) in which the order was passed and therefore is barred by limitation and out to be rejected on that ground itself.
d) It is submitted that there is no provision in law to file / submit additional grounds of appeal in the Miscellaneous Application and therefore these additional letters enclosing additional grounds may be rejected / ignored.
1. Department's MA No. 66 / 2021 (in relation to Department's appeal in ITA 1207 / 2018 for AY 2010-11) and
2. Department's MA No. 65 / 2021 (in relation to Department's appeal in ITA 3746 / 2016 for AY 2008-09)
12) MA Nos. 66 & 65 of 2021 (filed on 26th Feb 2021) of the Department consist of similar grounds for AYs 2010-11 and 2008-09 respectively. In the combined order of this tribunal, AY 2010-11 has been taken up first. Therefore, MA No. 66/2021 is taken up first hereinbelow. It may further be noted that grounds taken in these MAs are identical to additional grounds taken vide letters dated 2nd March 2021 referred to in paragraph 11 above and therefore the assessee herein at the cost of repetition reiterates the above submissions as below.
13) On the issue of Provision of Software, Technical and Consultancy Services, the Department is attempting to reargue the entire case which surprisingly includes contentions related to comparables in three different geographic regions which was not even raised as a ground of appeal by the Department before this tribunal. It may be noted that this tribunal in last 5 lines on page 38 and on page 39 of its order taken note of the arguments and submissions before the tribunal. The limited issue argued before the tribunal was on the manner of computation of PLI and treatment of pass-through cost both of which was argued at length in AY 2009-10 and adjudicated in favour of the assessee by order of this tribunal with a detailed reasoning.The argument of the Department in paragraphs 1.2, 1.3 & 1.4 of MA regarding pass through cost, computation of PLI and value addition by the assessee was argued at length before the tribunal and CIT(A) and is in fact contrary to finding of fact by CIT(A) and the tribunal in AY 2009-10 further followed in AYs 2010-11 and 2008-09. On the issue of manner of computation of PLI, the order of this tribunal in AY 2009- 10 specifically refers to various rulings by coordinate benches of this tribunal before holding in favour of the assessee. It may further be noted that CIT(A) in its order while adjudicating the issue even allowed TPO to verify comparable margins and the learned TPO while giving effect to CIT(A)'s order called for MA No.15/M/2021 & ors 10 [Arising out of IT(TP)A No.794/M/2018] & ors M/s. Tata Consultancy Services Ltd.
financials (10K reports) of the comparables before finalizing the benchmarking for different geographical regions considering assessee's AEs as tested party as held by TPO himself. In paragraph 44 of its order, this tribunal after considering the rival submissions of the parties, follows the detailed order on the identical issue from pages 40 - 43. Finally, the tribunal notes in paragraph 45 on page 43 that contentions raised by Department has been considered and no variation in facts nor any contrary law is brought to the tribunal's notice. Hence, there is no mistake apparent in the order of this tribunal where it has followed the binding coordinate bench ruling in assessee's own case and considered submissions of the Department before adjudicating the issue in favour of the assessee.
14) Another contention of the Department in these MAs, is related to order of this tribunal adopting the rate of guarantee commission to be 0.5% following the jurisdictional Bombay High Court in Everest Kanto and its own ruling in AY 2009-
10. It ought to be noted that no mistake apparent in the order has been pointed out and MA appears to be an attempt to reargue the entire issue. The tribunal in its order at pages 44 to 48 has considered this issue in detail. The tribunal specifically notes the Department's submission in paragraph 47 on pages 44 and 45 and assessee's reliance on the Bombay High Court judgement in Everest Kanto and in its own case in paragraph 48. Thereafter, the tribunal after considering rival submissions in paragraphs 49 and 50 follows it own order in AY 2008-09 based on binding jurisdictional High Court's decision in the case of Everest Kanto. Hence, there is no mistake apparent in the order of this tribunal where it has followed the binding judgement of its jurisdictional High Court and has also considered submissions of the Department before adjudicating the issue in favour of the assessee.
Finally, the ld AR submitted that since the order passed by the tribunal is in accordance with law and therefore the Miscellaneous applications of the revenue may be dismissed.
5. After hearing both the parties and perusing the material on record, we find that the co-ordinate bench of the Tribunal has passed the order by following the decision of the co-ordinate bench of the Tribunal in assessee's own case in the earlier order and also the jurisdictional High Court. It has been mentioned by the co-ordinate bench of the Tribunal time and again that Revenue has filed written submissions which have been considered. In our opinion, it is not necessary to incorporate each and every argument or written submission in the order itself and it would be suffice if the arguments are considered and MA No.15/M/2021 & ors 11 [Arising out of IT(TP)A No.794/M/2018] & ors M/s. Tata Consultancy Services Ltd.
a view is taken after taking into consideration the contentions of the revenue as well as the assessee. Therefore, the contentions of the Revenue that its submission did not find place in the order of the co-ordinate bench of the Tribunal is wrong and against the facts on record. Accordingly, we are inclined to dismiss these four miscellaneous applications filed by the Revenue.
6. In the result, all the miscellaneous applications filed by the Revenue are dismissed.
MA No.59/M/2021, A.Y 2008-09 (Assessee's MA)
7. By virtue of this miscellaneous application the assessee seeks the rectification of order passed by the Tribunal in ITA No.3263/M/2017 A.Y. 2008-09 as ground No.4 & 5 of the assessee's appeal has been left out from being adjudicated inadvertently.
8. The Ld. A.R. submitted before the Bench that a combined order for A.Y. 2010.11 and A.Y. 2008-09 has been passed in ITA No.3263/M/2017 & ors. dated 18.08.2020. While passing the said order the ITA No.794/M/2018 A.Y. 2010-11 has been taken as lead case. The Ld. A.R. pointed out that the ground No.4 & 5 raised in A.Y. 2008-09 are similar to ground No.2 & 3 in A.Y. 2010-11 which has been adjudicated vide para 18, 22 & 23 respectively. The Ld. A.R. submitted that the ground No.4 are in respect of treating the experience certainty campaign expenses amounting to Rs.27,94,44,762/- as intangible asset instead of revenue expenditure whereas ground No.5 the issue is in respect of not allowing foreign tax credit as per the provisions of section MA No.15/M/2021 & ors 12 [Arising out of IT(TP)A No.794/M/2018] & ors M/s. Tata Consultancy Services Ltd.
90(1)(a)(ii) of the Act. The Ld. A.R. therefore prayed that the order passed for A.Y. 2008-09 may kindly be rectified by giving similar direction as have been given in A.Y. 2010-11.
9. The Ld. D.R., on the other hand, fairly agreed that these grounds were not adjudicated in A.Y. 2008-09 whereas similar grounds were disposed of in A.Y. 2010-11.
10. We have heard the rival parties and perused the material on record including the impugned order passed by the co- ordinate Bench in A.Y. 2008-09 and observed that ground Nos.4 & 5 were left from adjudicating. The ground Nos.4 & 5 are reproduced as under:
"4. Advertisement expenditure 4.1 On facts and in circumstances of the case and in law, the Ld. CIT(A) erred in treating the advertisement expenditure incurred by the Appellant in respect of experience certainty campaign amounting to Rs.27,94,45,762/- as an intangible asset instead of treating it as revenue expenditure.
5. Foreign tax credit (Double Tax Relief) as per the provisions of section 90(1)(a)(ii) of the Act 5.1 On facts and in circumstances of the case and in law, the Ld. CIT(A) erred in not allowing foreign tax relief as per the provisions of section 90(1)(a)(ii) of the Act read with provisions of the applicable Double Tax Avoidance Agreements, for income taxes paid in overseas jurisdictions in relation to income eligible for deduction under section 10A/10Aa of the Act in India."
11. After perusing the decision of the co-ordinate Bench on ground No.2 in A.Y. 2010-11, we observe that the similar issue has been decided by the co-ordinate Bench vide para 18 of the said order wherein the co-ordinate Bench has statistically allowed the appeal of the assessee on this ground by following the order of the co-ordinate Bench in assessee's own case in A.Y. 2009-10. We therefore respectfully following the same, restore it to the file of the AO with the direction to decide the same in line MA No.15/M/2021 & ors 13 [Arising out of IT(TP)A No.794/M/2018] & ors M/s. Tata Consultancy Services Ltd.
with the order passed in A.Y. 2010-11. The ground is allowed for statistical purposes.
12. After perusing the decision of the co-ordinate Bench on ground No.3 in A.Y. 2010-11, we observe that the similar issue has been decided by the co-ordinate Bench vide para 22 & 23 of the said order wherein the co-ordinate Bench has allowed the appeal of the assessee on this ground by following the order of the co-ordinate Bench in assessee's own case in A.Y. 2009-10. We therefore respectfully following the same, allow the ground No.5 in favour of the assessee. The ground is allowed.
13. In the result, all the four miscellaneous applications of the Revenue are dismissed and that of the assessee is allowed.
Order pronounced in the open court on 23.08.2021.
Sd/- Sd/-
(Pavan Kumar Gadale) (Rajesh Kumar)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Mumbai, Dated: 23.08.2021.
* Kishore, Sr. P.S.
Copy to: The Appellant
The Respondent
The CIT, Concerned, Mumbai
The CIT (A) Concerned, Mumbai
The DR Concerned Bench
//True Copy// [
By Order
Dy/Asstt. Registrar, ITAT, Mumbai.