Agilent Technologies (International) Pvt. Ltd v. The Assistant Commissioner Of Income Tax, Gurgaon

IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH ITA No. 121 of 2014 (O & M)Date of Decision:- 02.07.2015 Agilent Technologies (International) Pvt. Ltd. ......Appellant(s) vs. The Assistant Commissioner of Income Tax, Gurgaon ......Respondent(s) CORAM:- HON'BLE MR. JUSTICE S.J. VAZIFDAR,ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE G.S.SANDHAWALIA Present:-Mr. Vishal Kalra, Advocate,and Mr. Rohit Khanna, Advocate,and Mr. Rohit Kumar, Advocate,for the appellant. Mr. Tejinder K. Joshi, Advocate,for the respondent. S.J. VAZIFDAR, A.C.J. (Oral) 1.This is an appeal against the order of the Tribunal dated14.06.2013 rendered in an appeal against the order of the DisputeResolution Panel. 2.Learned counsel appearing on behalf of the appellant reframed the questions of law as under:- “1)Whether on the facts and circumstances ofthe case, the order of the Tribunal was perverse and it fell into error while giving open-ended,capricious/arbitrary directions to the AO/TPO toreconsider certain comparable companies afresh,placing reliance on the Special Bench constituted in thecase of Giesecke & Devirent on application of turnover filter, which was pending adjudication and subsequentlydisbanded? 2)Whether on the facts and circumstances ofthe case, the Tribunal erred in law in upholding theinclusion of comparable companies chosen by the TPO,which were functionally not comparable. Further wasthe order of the Tribunal perverse as it erred in notconsidering the decisions of the coordinate benchesupholding exclusion of such comparable companies? 3)Whether on the facts and circumstances ofthe case, the order of the Tribunal was perverse andnon-speaking owing to non-adjudication of certaingrounds raised by the Appellant in the appeal memofiled before the Tribunal and further erred in notappreciating that the same were never withdrawn /conceded by the Appellant during the course ofhearing? 3. 3.As far as the first question is concerned, the matter has, in fact,not been decided finally by the Tribunal. The Tribunal noted that it hadcome to its notice that a Special Bench has been constituted to consider theimpact of turnover on comparability and further observed that in viewthereof, it would not be appropriate for it to adjudicate the issue. TheTribunal, therefore, remitted the issue of comparison on these comparablesto the files of the Transfer Pricing Officer (in short 'TPO) and directed theTPO to consider the same afresh after the decision of the Special Bench. We are informed that the Special Bench has been dissolved onaccount of that matter, being ITA No. 5924/DEL/2012, having beenwithdrawn by the assessees. Obviously, therefore, the Tribunal would haveto decide the matter either itself or by having the same referred to another made by the appellant before the Tribunal. 4.As regards the third question, learned counsel for the appellantcontended that the Tribunal had wrongly recorded that the assessee'scounsel had confined the grievance on behalf of the assessee to theinclusion of four comparables in software service segment and that it hadonly been argued that the comparables mentioned therein had been wronglyincluded by the TPO. Learned counsel for the appellant has invited ourattention to the written submissions filed before the Tribunal. This contention must at least, in the first instance, be raised bythe appellant before the Tribunal. The appellant is at liberty to do so. In theevent of the Tribunal not entertaining the application, the appellant is atliberty to adopt appropriate proceedings including in any appeal that may befiled against the main order. This contention must at least, in the first instance, be raised bythe appellant before the Tribunal. The appellant is at liberty to do so. In theevent of the Tribunal not entertaining the application, the appellant is atliberty to adopt appropriate proceedings including in any appeal that may befiled against the main order. 5.The second issue has been decided against the appellant. Weclarify that we are not considering the same at this stage. The matter beforethe Tribunal remains inconclusive at this stage in view of what we havementioned regarding the first question namely that the order of the Tribunalis not capable of being implemented on account of ITA No. 5924/DEL/2012having been withdrawn and the Special Bench in that matter having beendissolved. In our view, it would be appropriate that the matter is finallydecided by the Tribunal and the appellant be granted liberty to challenge theorder if necessary including on question no. 2 in an appeal against the finalorder. There would be no question of limitation, in such a case. Thelimitation would begin only after the final decision of the Tribunal. on the second question. It is also clarified that all the contentions raised inthis appeal regarding question no. 2 can also be raised in the appeal that theappellant may file after the final order of the Tribunal.7.The appeal accordingly stands disposed of. (S.J. VAZIFDAR) ACTING CHIEF JUSTICE 02.07.2015shivani (G.S. SANDHAWALIA) JUDGE