TMI Blog2019 (5) TMI 553X X X X Extracts X X X X X X X X Extracts X X X X ..... e s submission. All that the court had stated was that the matter required re-examination by the ITAT in the light of the Kusum Health Care (supra) For these reasons, the judgment to the extent it deals with adjustments made by the TPO, and regarding interest on delayed receipt of receivables, is a clear error. The court also furthermore notes the submissions made with respect to inapplicability to Explanation of Section 92B and its prospective operation. As the order of 07.02.2018 reserved by contentions, this Court does not propose to disturb the effect of that matter. The matter will be considered by the ITAT on its own merits. Exclusion of comparables and whether the assessee rendered services were akin to that of KPO rather than a BPO - here too the court is of the opinion that two clear errors have crept into the judgment. The reliance on Maersk Global [ 2014 (3) TMI 891 - ITAT MUMBAI] was clearly an error in view of the submission that Rampgreen [ 2015 (8) TMI 931 - DELHI HIGH COURT] had disagreed with the view of the Special Bench. Furthermore, the court also overlooked the judgment dated 27.03.2015 in the assessee s case [ 2015 (3) TMI 1226 - DELHI HIGH COURT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 92B of the Act which was inapplicable as it was introduced for the period 2013-14 onwards. It is also pointed out that this question was never framed by the court in the earlier order and in fact on 07.02.2018 when the question was framed, the assessee was involved in knowledge management system. This Court had referred to the decision in Pr. Commissioner of Income Tax v Kusum Health Care Pvt. Ltd. (2017) 398 ITR 66 (Del). 4. The second ground urged is that the finding that the nature of services provided by the review petitioner are specialized and therefore the services provided akin to that of KPO is erroneous. On this aspect, it is submitted that for the previous year 2006-07, in ITA No. 217/2014, the court had by an order dated 27.03.2015 approved that the nature of the assessee s services were back-office operations akin to a BPO. It is furthermore urged that not all material brought on record was considered. The learned counsel pointed out that the services related to knowledge management system and infrastructure form part of the IT Support segment which has been benchmarked separately. It is also urged that the judgment is erroneous inasmuch as it did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d having formed an opinion may say dismissed on merits . Such an order may be passed even ex parte, that is, in the absence of the opposite party. In any case, the dismissal would remain a dismissal by a non-speaking order where no reasons have been assigned and no law has been declared by the Supreme Court. The dismissal is not of the appeal but of the special leave petition. Even if the merits have been gone into, they are the merits of the special leave petition only. In our opinion neither doctrine of merger nor Article 141 of the Constitution is attracted to such an order. Grounds entitling exercise of review jurisdiction conferred by Order 47 Rule 1 CPC or any other statutory provision or allowing review of an order passed in exercise of writ or supervisory jurisdiction of the High Court (where also the principles underlying or emerging from Order 47 Rule 1 CPC act as guidelines) are not necessarily the same on which this Court exercises discretion to grant or not to grant special leave to appeal while disposing of a petition for the purpose. Mere rejection of a special leave petition does not take away the jurisdiction of the court, tribunal or forum whose order forms the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its own merits. 10. With respect to the main submission regarding the error on the question framed, i.e., exclusion of comparables and whether the assessee rendered services were akin to that of KPO rather than a BPO as was contended, here too the court is of the opinion that two clear errors have crept into the judgment. The reliance on Maersk Global (supra) was clearly an error in view of the submission that Rampgreen (supra) had disagreed with the view of the Special Bench. Furthermore, the court also overlooked the judgment dated 27.03.2015 in the assessee s case (ITA No.217/2014). Lastly, the Court also is of the opinion that the assessee s argument with respect to separate benchmarking of the knowledge management system, as part of the IT Support segment, is an aspect that requires examination. 11. In Rampgreen (supra), this Court s view was as follows: 34. We have reservations as to the Tribunal's aforesaid view in Maersk Global Centres (India) Pvt. Ltd. (supra). As indicated above, the expression 'BPO' and 'KPO' are, plainly, understood in the sense that whereas, BPO does IT(TP)A No.85/B/16 not necessarily involve ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
