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1/5 IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 2ND DAY OF JULY 2018
PRESENT
THE HON'BLE Dr.JUSTICE VINEET KOTHARI
AND
THE HON’BLE Mrs. JUSTICE S.SUJATHA
I.T.A.No.775/2017
BETWEEN:
M/S Curam Software International Pvt. Ltd. C/o of IBM India Pvt. Ltd., Subramanya Arcade, Bannerghatta road, Bengaluru-560 029 ...Appellant
By Mr. Nageswar Rao, K. Adv. and Mr. Mallaha Rao, K, Adv.)
AND:
Income Tax Officer, Ward 2(1) (2), Bengaluru …Respondent
(BY Mr. K.V.Aravind, Adv.)
This ITA is filed under Sec.260-A of Income Tax Act 1961, arising out of order dated:07/06/2017 passed in IT(TP)A No.192/Bang/2017 vide Annexure ‘A’ for the Assessment Year 2012-2013 praying to: (i)Admit the instant appeal to answer the substantial questions of law set out in para 28 above, (ii) Set aside the impugned order at Annexure-A passed by the Income Tax Appellate Tribunal in IT(TP)A Nos. 192/BANG/2017 relating Assessment Year 2012-13 vide Annexure ‘A’ and quash any
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proceedings instituted or contemplated pursuant to such directions issued there under; and etc.
THIS I.T.A. COMING ON FOR ADMISSION, THIS DAY Dr. VINEET KOTHARI J. DELIVERED THE FOLLOWING:-
JUDGMENT
Mr. Nageswar Rao, Adv. and Mr.Mallahar Rao, Adv. for Appellant-assessee Mr.K.V.Aravind, Adv. for Respondent-Revenue
Heard the learned counsel for the appellant- assessee.
Though prima facie the matter stands covered by our decision dated 25.06.2018 in ITA No.536/2015 C/w ITA No.537/2015 (Pr. Commissioner of Income Tax, Bangalore and another vs. M/s.Softbrands India P. Ltd.,) Mr.Nageswar Rao, learned counsel submitted on behalf of the appellant-assessee that the perversity in the order passed by the learned Tribunal on the ground that the three names of the Companies mentioned in para-16 quoted below does not match with the findings
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of the learned Dispute Resolution Panel (DRP) in the order dated …. October, 2016 (date of the order not specified) vide Annexure-G on record. Para-16 is quoted below for ready reference: “16. During the course of hearing, learned counsel for the assessee has sought exclusion of (i) Persistent Systems Ltd. (ii) Larsen & Toubro Infotech, and (iii) Spry Resources India Pvt. Ltd. by putting forth the contentions which were not made before lower authorities.
We are unable to agree with the submissions of the learned counsel for the assessee for two reasons: The contentions raised by the learned counsel for the assessee are based on facts which were not there before the lower authorities. No application was made for admission of these additional grounds of appeal. The additional grounds of appeal require verification of facts and cannot be raised for the first time before us without proper application for admission of the same. A ground can be raised before the appellate authority for the first time only if it is able to satisfy the appellate authority that this ground raised was bona fide and same could not have been raised earlier for good and
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sufficient reasons. In such cases, additional ground can be allowed. In the present case, there was no material on record to support such a claim nor this issue was subject matter of proceedings before the AO or Hon’ble DRP. Therefore, no new claim can be allowed in the light of the decision of the Apex Court in the case of Addl.CIT vs. Gurjargravures P. Ltd. (111 ITR 1). Furthermore, there is nothing in the petition for admission of additional grounds of appeal indicating reasons which prevented the appellant/assessee from raising a claim for deduction of expenditure incurred on ESOP for the assessment year under consideration during the proceedings before the AO or the CIT(A). In identical facts of the case, the Hon’ble Bombay High Court in the case of Ultratech Cement Ltd. vs. Addl.CIT in ITA No.1060 of 2014 dated 18th April, 2017 after referring to the decision of the Apex court in the case National Thermal Power Co. Ltd. vs. CIT (229 ITR 383), held as follows:”
However, we are of the opinion that if there is any factual error in the order of the learned Tribunal and the statement and the argument of the learned counsel for the appellant-assessee has been wrongly
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noted by the learned Tribunal, it is open to the appellant-assesee to move the learned Tribunal itself by way of Miscellaneous Application seeking any such correction in the order.
With the aforesaid liberty to the appellant- assessee, we dispose of the present appeal at this stage. The learned Tribunal is expected to consider the Miscellaneous Application of the appellant-assessee in accordance with law. No costs.
Sd/- JUDGE
Sd/-
JUDGE TL