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May, 28th 2013
$~10 to 12

%                                      Judgment delivered on: 14.03.2013

+       ITA 1828/2010
+       ITA 1829/2010
+       ITA 1254/2011

        CIT                                                          ..... Appellant
        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.




        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

ITA 1828/2010 & conn.                                          Page 5 of 5
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