$~10 to 12
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 14.03.2013
+ ITA 1828/2010
+ ITA 1829/2010
+ ITA 1254/2011
CIT ..... Appellant
versus
GLOBAL VANTEDGE PVT. LTD. ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr Sanjeev Sabharwal, Sr. Standing Counsel with Ms
Gayatri Verma, Advocate.
For the Respondent : Mr Vikas Srivastava with Mr Jatinder Pal Singh and Parag
Mohanty, Advocates.
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE R.V.EASWAR
JUDGMENT
BADAR DURREZ AHMED, J (ORAL)
These three appeals by the revenue relate to the assessment years
2003-04, 2004-05 and 2005-06. The appeals in respect of the assessment
years 2003-04 and 2004-05 (ITA No.1828/2010 and 1829/2010) arise out
of the Income Tax Appellate Tribunal's order dated 17.12.2009 passed in
ITA Nos.1432 and 2321/Del/2009. The third appeal (ITA No.1254/2011)
ITA 1828/2010 & conn. Page 1 of 5
is in respect of the assessment year 2005-06 and arises out of the
Tribunal's order dated 06.05.2011 passed in ITA No.116/Del/2011. The
latter order passed by the Tribunal has merely followed the earlier order
dated 17.12.2009.
2. The issue sought to be raised in the present appeals is with regard
to the determination of the arms' length price. Fro m the impugned orders
and, in particular, the order dated 17.12.2009 we find that the Tribunal
has examined this issue at length and has extensively quoted the decision
of Commissioner of Income Tax (Appeals) on the said issue. After
having done so and examining the order of the Commissioner of Income
Tax (Appeals), the Tribunal confirmed the said finding for want of any
cogent reasons on the part of the revenue to disturb the said findings. In
fact, the exact language used by the Tribunal for confirming the findings
of the CIT (Appeals) is as under: -
"19. During the course of hearing of this, appeal, neither
the ld Counsel of the Assessee nor the D.R. for the revenue
have been able to point out any basis or material or criteria to
controvert or to rebut the finding and conclusion arrived at
by the ld. CIT (A) except by relying upon their respect stand
taken before the ld. CIT (A). Though the ld. counsel for the
Assessee made a specific submission about the benefit of
adjustment of +5% to be given while determining the arms
Length Price, the ld. Counsel for the Assessee has not been
ITA 1828/2010 & conn. Page 2 of 5
pointed out as to who and in what manner, the order of the
CIT (A) in rejecting this claim of the Assessee is improper
and unjustified. Since both the parties have not been able to
controvert the finding recorded by the ld. CIT (A) or point
out any material to enable us to take a view other than view
taken by the ld. CIT (A), we are inclined to uphold the order
of ld. CIT (A) on the point of determination of Arms Length
Price in respect of the transaction entered into the Assessee
with its association enterprise, namely, RCS Centre Corp.
Therefore, the order of the ld. CIT (A) is upheld, and the
ground raised by the Assessee as well as by the revenue on
this issued are rejected."
3. The learned counsel for the revenue contended that it was
incumbent upon the Tribunal to have recorded its own findings rather
than merely confirming the findings of the CIT (Appeals). However, the
learned counsel for the respondent/ assessee drew our attention to the
Supreme Court decision in the case of CIT v. K.V. Pilliah and Sons :
(1966) 63 ITR 411 (SC), wherein, on a similar point having been raised,
the Supreme Court observed as under: -
"The Income-tax Appellate Tribunal is the final fact-finding
authority and normally it should record its conclusion on
every disputed question raised before it, setting out its
reasons in support of its conclusion. But, in failing to record
reasons, when the Appellate Tribunal fully agrees with the
view expressed by the Appellate Assistant Commissioner
and has no other ground to record in support of its
conclusion, it does not act illegally or irregularly, merely
because it does not repeat the grounds of the Appellate
Assistant Commissioner on which the decision was given
ITA 1828/2010 & conn. Page 3 of 5
against the assessee or the department. The criticism made
by the High Court that the Tribunal had "failed to perform its
duty in merely affirming the conclusion of the Appellate
Assistant Commissioner" is apparently unmerited."
4. In view of the observations of the Supreme Court in the case of
K.V. Pilliah and Sons (supra) it is apparent that merely because the
Tribunal confirmed the findings of the lower appellate authority it does
not mean that the Tribunal has acted illegally or irregularly. In the
present case, we find that the Tribunal had examined the findings of the
Commissioner of Income Tax (Appeals) in detail and had given an
opportunity to the departmental representative to controvert or rebut the
findings and conclusions arrived at by the CIT (Appeals). However,
despite that opportunity, it is recorded in the order, a portion whereof was
extracted above, that the departmental representative had not been able to
controvert those findings and point to any material to enable the Tribunal
to take a view other than the view taken by the CIT (Appeals). It is in
these circumstances that the Tribunal concurred with the view taken by
the CIT (Appeals). It is also not the case of the revenue that the
departmental representative had made certain points controverting the
findings of the CIT (Appeals), which have not been taken into account by
the Tribunal. Had that been done, possibly, the revenue would have filed
ITA 1828/2010 & conn. Page 4 of 5
an application under section 254 of the Income Tax Act, 1961 for
rectification but that has also not been done. In these circumstances, we
do not find any substantial question of law which arises for our
consideration in these appeals. The appeals are dismissed.
BADAR DURREZ AHMED, J
R.V.EASWAR, J
MARCH 14, 2013
hs
ITA 1828/2010 & conn. Page 5 of 5
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