Per A. Mohan Alankamony, Accountant Member This Miscellaneous petition is by the assessee company seeking to rectify certain mistakes in the order of the Tribunal dated 30.6.2011 in ITA No.1201/Bang/2010.
2. The ld. AR submitted that the Tribunal by its order dated 31.8.2010 remitted back the issues raised by the assessee to the files of AO/TPO, except for the issue of considering foreign exchange gains as operating income while computing ALP and variation to deduction u/s. 10A which were decided in favour of the assessee. However, in para 5.3.1 of the order, it was stated that Out of the 10 points listed out above, two issues as mentioned at Sl.Nos (vii) and (x), we find that the decisions of the Honble Tribunals are squarely applicable to the facts of issues on hand which are illustrated as under. It was submitted before the Tribunal vide ground No.11 that even if TP adjustment is to be made, the appellant should be given benefit of 5% deduction as provided under proviso to section 92C(2), which also stands remanded back without any directions. The ld. AR submitted that this issue of 5% deduction under proviso to section 92C(2) while computing the ALP is also covered in its favour by the decisions of the Tribunal which were cited at the time of hearing. In view of the above, it was prayed that instead of this issue being remitted back, the order of the Tribunal dated 30.6.2011 is to be rectified to grant standard deduction of 5% as provided under unamended proviso to section 92C(2) or atleast a direction be given to the revenue authorities to consider deduction of 54% while arriving at the final Transfer Pricing adjustment.
3. The ld. DR strongly objected to the request of the ld. AR stating that the issue was only remitted back to the file of ld. AO/TPO for fresh consideration in the light of the various decisions rendered by appellate authorities and higher judiciary. Therefore there is no mistake in the order of the Tribunal rectifiable u/s. 254(2) of the Act.
4. We have heard the rival submissions and perused the material on record. In the Tribunal order in ITA No.1201/Bang/2010 for the A.Y. 2006-07 with respect to certain issues, the case was remitted back to the file of ld. AO/TPO for de novo consideration. The relevant portion of the order para 5.3.1 is reproduced herein for reference: 5.3.1. Taking into account the facts and circumstances with regard to the remaining short-comings as listed out in the fore-going paragraphs and also a fact that the assessee has been deprived of its rightful opportunity to put-forth its view on the issues which have been dealt with at the levels of TPO and DRP and in the interests of natural justice and fairness, the issues raised by the assessee are remitted back on the files of the Ld. AO/Ld. TPO for consideration afresh and also affording a reasonable opportunity to the assessee of being heard. In the meanwhile, the assessee, through its Ld. A.R, is advised to place all the relevant particulars before the authorities concerned to facilitate them to implement the directions of this Bench cited supra, expeditiously.
5. On perusing the relevant extracted portion of the order, as pointed out by the ld. DR we do not find any mistake apparent on record rectifiable u/s. 254(2) of the Act. Needless to mention that the ld. AO is bound to pass appropriate order as per law considering the facts. Therefore, we dismiss the miscellaneous petition filed by the assessee. Pronounced in the open court on this 6th day of September, 2011. Sd/- Sd/- ( SMT. P. MADHAVI DEVI ) (A. MOHAN ALANKAMONY ) Judicial Member Accountant Member Bangalore, Dated, the 6th September, 2011. Ds/- Copy to:
1. Applicant
2. Respondent
3. CIT
4. CIT(A)
5. DR, ITAT, Bangalore.
6. Guard file By order Assistant Registrar ITAT, Bangalore.