GAMELOFT SOFTWARE PRIVATE LIMITED,HYDERABAD vs. INCOME TAX OFFICER, WARD-2(2), HYDERABAD
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Income Tax Appellate Tribunal, HYDERABAD BENCHES “A”, HYDERABAD
Before: SHRI RAMA KANTA PANDA & SHRI K. NARASIMHA CHARY
आदेश / ORDER PER K. NARASIMHA CHARY, J.M: By way of this Miscellaneous Application, assessee requested to recall the Tribunal’s order dated 09/01/2023 for the assessment year 2013-14 on the ground that by way of such an order, the Tribunal set aside
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the final assessment order and remanded the issue to the file of the learned Assessing Officer/learned TPO for pass appropriate orders in consonance with the directions of the learned DRP, by relying on the decision of the Co-ordinate Benches of the Tribunal in the cases of Yokogawa India Ltd., vs. ACIT, in ITA (TP) No. 1715 & 692/Bang/2016, dated 08/03/2021, Apollo Health Street vs. DCIT [2014] 45 taxmann.com 507 (Hyderabad – Trib.), but in a Miscellaneous Petition No. 136/Bang/2021, the Tribunal corrected the operating portion of the order and held such an order to be bad in law and consequently quashed the same. He further submitted that Hon'ble Delhi High Court in the case of M/s. ESPN Star Sports Mauritus S.N.C ET Compagnie (Now known as ESS Advertising (Mauritius) S.N.C. ET Compagnie) vs. Union of India and batch in W.P.(C) 2384/2015 & CM No. 4277/2015 and W.P.(C) No. 2397/2015 & CM No. 4298/2015, dated 23/03/2016 followed by the Co-ordinate Bench of the Bangalore Tribunal in the case of Toyota Tsusho India P. Ltd., vs. DCIT, in IT(TP)A No. 175/Bang/2022, dated 09/09/2022. He also placed reliance on the decision of the Bangalore Bench of the Tribunal in the case of Flextronics Technologies (India) Private Limited vs. ACIT in IT(TP)A No. 832/Bang/2017, dated 31/12/2018 upheld by the Hon'ble Karnataka High Court by order dated 09/01/2023 in PCIT vs. M/s. Flextronics Technologies (India) Private Limited, in IT Appeal No. 332 of 2019, holding that the order passed not in conformity with the directions issued by the learned DRP cannot be sustained. He, therefore, submitted that placing reliance on an order which was recalled and modified later and also not noticing the binding precedents of the Hon’ble Delhi and Karnataka High Courts constitutes error apparent on record.
Learned DR placed heavy reliance on the order dated 09/01/2023 inasmuch as, as on the date of hearing, the learned AR did not bring the order in Miscellaneous Petition No. 136/Bang/2021 to the notice of the Bench. He, therefore, submits that there is no mistake apparent on the face of record.
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We have gone through the record in the light of the submissions made on either side. there is no denial of the fact that the Hon'ble Bombay High Court in the case of M/s. ESPN Star Sports Mauritus S.N.C ET Compagnie (supra) and Hon'ble Karnataka High Court in the case of Flextronics Technologies (India) Private Limited (supra), held that under section 144C(10) of the Act, the learned Assessing Officer had no option, but to comply with the directions of the learned DRP and any order passed in disregard to such directions vitiates the entire exercise. Since such an order is without jurisdiction and null and void, the same is liable to be quashed. On the face of these two judgements of the Hon'ble High Courts and respectfully following the same, we hold the issue in favour of the assessee and quash the impugned order. All the consequential orders do not survive. So also, in a Miscellaneous Petition No. 136/Bang/2021, the Bangalore Bench of the Tribunal corrected the operating portion of the order and held such an order to be bad in law and consequently quashed the same. Though not this order in the Miscellaneous Petition was cited at the Bar, still the fact remains that the order dated 09/01/2023 was rendered by not taking due cognizance of the orders of the Hon’ble High Courts, and therefore, it constitutes the mistake apparent on the face of record and on that ground the said order has to be recalled and Miscellaneous Application is allowed.
Coming to ITA No. 432/Hyd/2018 considering the arguments on either side, in the light of the decisions of the Hon'ble Bombay High Court in the case of M/s. ESPN Star Sports Mauritus S.N.C ET Compagnie (supra) and Hon'ble Karnataka High Court in the case of Flextronics Technologies (India) Private Limited (supra), we find that the final assessment order
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dated 31/10/2017 is bad under law and the same is liable to be quashed. Appeal of the assessee is accordingly allowed.
To sum-up, Miscellaneous Application and ITA No. 432/Hyd/2018 both are allowed.
Order pronounced in the open court on this the 27th day of February, 2024.
Sd/- Sd/- (RAMA KANTA PANDA) (K. NARASIMHA CHARY) VICE PRESIDENT JUDICIAL MEMBER Hyderabad, Dated: 27/02/2024 TNMM
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