Appeal details
Counselvise Citation
[2024] 101 COUNSELVISE.COM (IT) 9192 (ITAT-AHMEDABAD)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
10 month(s) 6 day(s)
Appellant
Respondent
Appeal Type
Cross Objection
Pronouncement Date
11-01-2024
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
D
Next Hearing Date
17-12-2023
Assessment Year
2013-2014
Appeal Filed On
05-03-2023
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL “D” BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER & SHRI SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER I .T .A . N o . 5 3 9/ A h d /2 0 22 Wit h C . O. N o. 0 2/ A h d/ 2 0 23 ( A s se ss m e nt Y e a r : 20 13- 1 4 ) D e p ut y C o m m is s io ne r o f I nc o m e Ta x , C ir cl e - 1 ( 1) ( 1) , V a d o da r a Vs .I N A B ea r i ng I n d ia P v t. Lt d. , Pl ot N o .A -3 , Ta le g ao n I nd u s tr ia l & Fl or i c u lt ur e Par k, Vil la ge A m b i N a va l ak ha U m b r e , Pu ne - 41 0 5 07 [ P A N N o . AA A C I7 1 63 H ] (Appellant/Respondent) .. (Respondent/Cross Objector) I .T .A . N o . 5 4 0/ A h d /2 0 2 2 Wit h C . O. N o. 0 3/ A h d/ 2 0 2 3 ( A s se ss m e nt Y e a r : 20 14- 1 5 ) D e p ut y C o m m is s io ne r o f I nc o m e Ta x , C ir cl e - 1 ( 1) ( 1) , V a d o da r a Vs .I N A B ea r i ng I n d ia P v t. Lt d. , Pl ot N o .A - 3 , Ta le g ao n I nd u s tr ia l & Fl or i c u lt ur e Par k, Vil la ge A m b i N a va l ak ha U m b r e , Pu ne-41 0 5 07 [ P A N N o . AA A C I7 1 63 H ] (Appellant/Respondent) .. (Respondent/Cross Objector) Appellant by : Shri Bhavin Marfatia, A.R. Respondent by: Dr. Darsi Suman Ratnam, CIT D.R. D a t e of H ea r i ng 18.12.2023 D a t e of P r o no u n ce me nt 12.01.2024 O R D E R PER BENCH: These appeals have been filed by the Department and Cross Objections filed by the assessee against the order passed by the Ld. Commissioner of Income Tax (Appeals)-13, (in short “Ld. CIT(A)”), Pune in Appeal Nos. PN/CIT(A)-13/ACIT Circle-11, Pune/10739/2016-17 & PN/CIT(A)-13/ACIT Circle-11, Pune/ 10414/2017-18 vide order dated 26.08.2021 passed for the Assessment Years 2013-14 & 2014-15. ITA Nos. 539 & 540/Ahd/2022 with C.O. Nos. 02&03/A/2023 DCIT vs. INA Bearing India Pvt. Ltd. Asst. Years –2013-14 & 2014-15 - 2 - 2. The Department has taken the following grounds of appeal:- ITA No. 539/Ahd/2022(A.Y. 2013-14):- “[i] On the facts and in the circumstances of the case and in law, the Ld.CIT (A) has erred in deleting the upward adjustment of arm's length price of Rs.10,89,85,477/- made by the TPO in respect of benchmarking of management services? [ii] On the facts and in the circumstances of the case and in law, the Ld. CIT (A) has erred in ignoring the fact that the assessee had failed to benchmark the transactions properly with its Associate Enterprise (AE) as per the law thereby failing to discharge the primary onus cast upon it by the Act? [iii] On the facts and in the circumstances of the case and in law, the Ld, CIT (A) has erred in deleting the upward adjustment of Rs.10,89,85,477/- made by the TPO in respect of benchmarking of management fees following the decision of the Hon'ble ITAT, Pune in the assessee's own case for the A.Y, 2011-12, without appreciating the fact that every assessment year is separate assessment year and the doctrine of res judicata does not apply so as to make a decision on a question of fact or law in a proceeding for assessment in one year binding in another year as held by the Hon'ble Apex Court in the case of M.M. Ipoh &Ors. (67 STR 106) and accordingly the decision of A.Y. 2011-12 is not binding for A.Y. 2013-14? [iv] On the facts and in the circumstances of the case and in law, the Ld. CIT (A) has erred in relying upon the decision of the Hon'ble ITAT, Pune in the assessse's own case for the A.Y. 2011-12 wherein it was held that the management support services availed by the assesse from M/s Schaeffler Holding (China) Co. Ltd. were not in the nature of stewardship/ shareholder activities without appreciating the fact that the assessee has not substantiated the benefit derived from such services availed by it for which very high prices were paid to its Associated Enterprise (AE) [v] On the facts and in the circumstances of the case and in law, the Ld, CIT (A) has erred in deleting the upward adjustment of Arm's Length Price of Rs,13,15,10,788/- made by the TPO in respect of benchmarking of manufacturing segment? [vi] On the facts and in the circumstances of the case and in law, the Ld. CIT (A) has erred in ignoring the fact that the assessee had failed to benchmark the transactions properly with its Associate Enterprise (AE) as per law thereby failing to discharge the primary onus cast upon it by the Act? [vii] On the facts and in the circumstances of the case and in law, the Ld. CIT (A) has erred in deleting the upward adjustment of Rs.13,15,10,788/- made by the TPO in respect of benchmarking of manufacturing segment, following the decision of the Hon'ble ITAT, Pune in the assessee's own case for the A.Y. 2009-10, without ITA Nos. 539 & 540/Ahd/2022 with C.O. Nos. 02&03/A/2023 DCIT vs. INA Bearing India Pvt. Ltd. Asst. Years –2013-14 & 2014-15 - 3 - considering the fact that every assessment year is separate assessment year and the doctrine of res judicata does not apply so as to make a decision on a question of fact or law in a proceeding for assessment in one year binding in another year as held by the Hon'ble Apex Court in the case of M.M. Ipoh & Ors, (67 ITR 106) and accordingly the decision of A.Y. 2009-10 is not binding for A.Y. 2013-14? [viii] On the facts and in the circumstances of the case and in law, the Ld. C1T (A) has erred in granting benefit of +/- 3% margin to the assessee in determining the ALP? [ix] It is, therefore, prayed that the order of the Ld. C1T (A) may be set aside and that of the Assessing Officer may be restored to the above extent, [x] The appellant craves leave to add, alter, amend and/or withdraw any grounds of appeal either before or during the course of appellate proceedings.” ITA No. 540/Ahd/2022(A.Y. 2014-15):- “[i] On the facts and in the circumstances of the case and in law, the Ld.CIT (A) has erred in deleting the upward adjustment of arm's length price of Rs.5,62,11,209/- made by the TPO in respect of benchmarking of management services? [ii] On the facts and in the circumstances of the case and in law, the Ld. CIT (A) has erred in ignoring the fact that the assessee had failed to benchmark the transactions properly with its Associate Enterprise (AE) as per the law thereby failing to discharge the primary onus cast upon it by the Act? [iii] On the facts and in the circumstances of the case and in law, the Ld, CIT (A) has erred in deleting the upward adjustment of Rs.5,62,11,209/- made by the TPO in respect of benchmarking of management fees following the decision of the Hon'ble ITAT, Pune in the assessee's own case for the A.Y. 2011-12, without appreciating the fact that every assessment year is separate assessment year and the doctrine of res judicata does not apply so as to make a decision on a question of fact or law in a proceeding for assessment in one year binding in another year as held by the Hon'ble Apex Court in the case of M.M. Ipoh & Ors. (67 STR 106) and accordingly the decision of A.Y. 2011-12 is not binding for A.Y. 2014-15? [iv] On the facts and in the circumstances of the case and in law, the Ld. CIT (A) has erred in relying upon the decision of the Hon'ble ITAT, Pune in the assessse's own case for the A.Y. 2011-12 wherein it was held that the management support services availed by the assesse from M/s Schaeffler Holding (China) Co. Ltd. were not in the nature of stewardship/ shareholder activities without appreciating the fact that the assessee has not substantiated the benefit derived from such services availed by it for which very high prices were paid to its Associated Enterprise (AE) [v] On the facts and in the circumstances of the case and in law, the Ld, CIT (A) has erred in deleting the upward adjustment of Arm's Length Price of ITA Nos. 539 & 540/Ahd/2022 with C.O. Nos. 02&03/A/2023 DCIT vs. INA Bearing India Pvt. Ltd. Asst. Years –2013-14 & 2014-15 - 4 - Rs.6,87,96,992/- made by the TPO in respect of benchmarking of manufacturing segment? [vi] On the facts and in the circumstances of the case and in law, the Ld. CIT (A) has erred in ignoring the fact that the assessee had failed to benchmark the transactions properly with its Associate Enterprise (AE) as per law thereby failing to discharge the primary onus cast upon it by the Act? [vii] On the facts and in the circumstances of the case and in law, the Ld. CIT (A) has erred in deleting the upward adjustment of Rs.6,87,96,992/- made by the TPO in respect of benchmarking of manufacturing segment, following the decision of the Hon'ble ITAT, Pune in the assessee's own case for the A.Y. 2009-10, without considering the fact that every assessment year is separate assessment year and the doctrine of res judicata does not apply so as to make a decision on a question of fact or law in a proceeding for assessment in one year binding in another year as held by the Hon'ble Apex Court in the case of M.M. Ipoh & Ors, (67 ITR 106) and accordingly the decision of A.Y. 2009-10 is not binding for A.Y. 2014-15? [viii] On the facts and in the circumstances of the case and in law, the Ld. C1T (A) has erred in granting benefit of +/- 3% margin to the assessee in determining the ALP? [ix] It is, therefore, prayed that the order of the Ld. C1T (A) may be set aside and that of the Assessing Officer may be restored to the above extent, [x] The appellant craves leave to add, alter, amend and/or withdraw any grounds of appeal either before or during the course of appellate proceedings.” 3. The assessee has raised the following grounds of appeal in its Cross Objections:- C.O. No. 02/Ahd/2023(A.Y. 2013-14):- “1. The learned Commissioner of Income Tax (Appeals) - 13, Pune ["CIT(A)"] erred in fact and in law in not adjudicating the following grounds of appeal: a. The learned TPO as well as AO erred in fact and in law in considering the following companies as comparable companies: i. Talbros Automotive Components Ltd ii. Victor Gaskets India Ltd b. Without prejudice to the grounds raised above, the learned TPO as well as the AO erred in fact and in law in not adjusting the operating cost by an amount of Rs. 7,13,82,753 while computing the margins of manufacturing ITA Nos. 539 & 540/Ahd/2022 with C.O. Nos. 02&03/A/2023 DCIT vs. INA Bearing India Pvt. Ltd. Asst. Years –2013-14 & 2014-15 - 5 - segment despite the fact that the TPO had determined the ALP of the management support services at Nil. 2. Your respondent craves a right to add to or amend, alter, substitute, delete or withdraw all or any of the grounds of cross objections.” C.O. No. 03/Ahd/2023(A.Y. 2014-15):- “1. The learned Commissioner of Income Tax (Appeals) - 13, Pune ["CIT(A)"] erred in fact and in law in not adjudicating the following grounds of appeal: a. The learned TPO as well as AO erred in fact and in law in rejecting Bimetal Bearing Ltd. as a comparable company despite the fact that the same was functionally comparable to the Appellant. b. The learned TPO and consequently the AO erred in fact and in law in considering the following companies as comparable companies: i. Talbros Automotive Components Ltd ii. Victor Gaskets India Ltd c. Without prejudice to the grounds raised above, the learned TPO and consequently the AO erred in fact and in law in not adjusting the operating cost by an amount of Rs. 3,93,47,846 while computing the margins of manufacturing segment despite the fact that the TPO had determined the ALP of the management support services at Nil. 2. Your respondent craves a right to add to or amend, alter, substitute, delete or withdraw all or any of the grounds of cross objections.” We shall first take up the Department’s appeal for A.Y. 2013-14 Ground Nos. i to iv – Upward adjustment of Arm’s Length Price in respect of Management Services (Rs. 10,89,85,477/-) 4. The brief facts in relation to this ground of appeal are that during the year under consideration, the Assessing Officer observed that the assessee had entered into international transactions and had paid fees for availing management services from it’s Associated Enterprise Schaeffler Holding ITA Nos. 539 & 540/Ahd/2022 with C.O. Nos. 02&03/A/2023 DCIT vs. INA Bearing India Pvt. Ltd. Asst. Years –2013-14 & 2014-15 - 6 - (China Company Ltd., China) amounting to Rs. 10,89,85,479/-. The Ld. TPO was of the view that the assessee has not produced any details in respect of payment made by the assessee at the time of entering into agreement alongwith it’s basis, cost benefit analysis carried out, comparability analysis with respect to the payment required to be made to the AE etc. The TPO was also of the view that the assessee has not provided any basis for the rate paid by the assessee for services availed by it which is as high as 325 USD per hour. Further, the TPO observed that the assessee has not provided any cost benefit analysis at the time of agreement to pay such a high rate for the kind of services rendered by it. Further, the TPO was of the view that the assessee has not made any comparison with similar services which would have been availed from third parties, even if it were to be assumed that such similar services could have been availed in the market. Accordingly, the TPO made adjustment of Rs. 10,89,85,477/- to the value of assessee’s international transactions of Management Services Fees payment by determining it’s Arm’s Length Price at Rs. “NIL”. 5. The Ld. CIT(A) decided the issue in favour of the assessee on the ground that the ITAT Pune in assessee’s own case for A.Y. 2009-10 has decided this issue in favour of the assessee. Accordingly, Ld. CIT(A) allowed the appeal of the assessee on this issue with the following observations:- “4.3 I have carefully considered the facts of the case and submission filed by appellant, It is seen from previous year proceedings that the appellant has been granted "Depreciation adjustment" in its "Profit Level Indicator”(PLI) computation in AY 2009-10. This hap been accorded as the appellant has followed higher rates of depreciation compared to the rates of depreciation prescribed in the schedule to the Companies Act. This stand has been accepted by the Honourable ITAT, Pune in its order for AY 2009-10 in ITA No. 148/PUN/2017 and ITA No.28l/PUN/2017 dtd 07.06.2019. There is no change in the facts of the charging of higher depreciation rates in this AY 2013-14 as well. This is corroborated in the schedules to the audited ITA Nos. 539 & 540/Ahd/2022 with C.O. Nos. 02&03/A/2023 DCIT vs. INA Bearing India Pvt. Ltd. Asst. Years –2013-14 & 2014-15 - 7 - financials of the appellant. Respectfully following the Honourable ITAT's decision in this case for AY 2009-10, the AO/TPO is directed to allow depreciation adjustment of Rs 6,92,31,995 in the computation of the PLI of the appellant. By doing so, the PLI of the appellant is restored to 2.38%. As per the final set of comparables in the TP order, the mean margin of the PLI is 4.01%. As this is within +/-3%, the TP adjustment in the manufacturing segment does not survive. Accordingly the adjustment of Rs. 13,15,10,788 is deleted. As the adjustment is deleted by restoring depreciation adjustment, the grounds of appeal on the addition / deletion of comparables and removal of management fees from the PLI computations are not adjudicated.” 6. The Department is in appeal before us against the order passed by Ld. CIT(A) allowing the appeal of the assessee on this issue. 7. Before us, it was argued that at the outset, the issue is squarely covered in favour of the assessee by decision of ITAT Pune in assessee’s own case in ITA No. 148/Pun/2017 and ITA No. 281/Pun/2017 vide order dated 07.06.2019 for A.Y. 2009-10. Accordingly, it was submitted that since the Ld. CIT(A) placed reliance on the aforesaid decision, which has been rendered on a similar set of facts as in assessee’s own case for 2009-10, there is no infirmity in the order of Ld. CIT(A) so as to call for any interference. 8. In view of the arguments put before us, it would be useful to reproduce the relevant extracts of the ITAT ruling rendered in assessee’s own case for A.Y. 2009-10 for ready reference:- “3. As regards the payment of Fees for Management services, the assessee was show caused to produce documentary evidence establishing the requisition of such services from the Associated Enterprises (AE) and also its separate benchmarking. The assessee furnished such details including copies of Invoices against which the payment was made. Not convinced, the TPO determined 'Nil' ALP of the transaction by holding that services provided by the AE were in the nature of stewardship activity and hence no payment was required to be paid as quid pro quo for such services. The AO made the transfer pricing addition to the above extent. In the first appeal, the ld. CIT(A) observed that similar issue was raised in the assessee's appeal for the immediately preceding assessment year. Following his view on this issue taken for the A.Y. 2010-11, the ld. CIT(A) directed the AO to re-work the ALP of ITA Nos. 539 & 540/Ahd/2022 with C.O. Nos. 02&03/A/2023 DCIT vs. INA Bearing India Pvt. Ltd. Asst. Years –2013-14 & 2014-15 - 8 - Management services fees after reducing the amount relatable to shareholder services. He also directed the AO to apply hourly rate of USD 40 for category 3 and 4 level of employees and of USD 80 for category 1 and 2 level of employees. Both the sides are in appeal against the respective findings of the Id CTF(A) contained in the impugned order. ....... 32. To sum up, it is held that the assessee entered into an agreement with Schaeffler Holding (China) Co., Ltd for receipt of "Management support. Services", for which separate benchmarking was required to be done. Such services were actually rendered. These services are not in the nature of stewardship or shareholder activity. The payment to Schaeffler Holding (China) Co. Ltd. at the actual costs incurred in providing such services plus 5% mark-up is at ALP, which does not require any transfer pricing addition. We, therefore, set aside the impugned order by holding that the international transaction of payment of Fees for Management, services at Rs.5,65,53,971/- is at ALP, which does not require any transfer pricing addition. The addition so sustained in part by the ld. CIT(A), is directed to be deleted in full. 33. In the result, appeal of the assessee is partly allowed and that of the Revenue is dismissed.” 9. In view of the arguments put before us and the observations made by ITAT Pune in assessee’s own case for A.Y. 2009-10, which have reproduced in the preceding paragraphs, Ground No. i to iv of the Department’s appeal are hereby dismissed. Ground Nos. v to viii of the Department’s appeal (upward adjustment of ALP of Rs. 131,5,10,788/- made by the TPO in respect of benchmarking of manufacturing segments) 10. The brief facts in relation to this ground of appeal are that during the course of transfer pricing proceedings, the TPO observed that the assessee had calculated it’s Profit Level Indicator (“PLI”) at 2.38%. The assessee had selected five comparables and their mean margin was 2.22%. Hence, the assessee has claimed that the assessee to manufacturing segment was at Arm’s Length. However, the TPO noticed that the assessee has made a claim with ITA Nos. 539 & 540/Ahd/2022 with C.O. Nos. 02&03/A/2023 DCIT vs. INA Bearing India Pvt. Ltd. Asst. Years –2013-14 & 2014-15 - 9 - regards to depreciation adjustment on the ground that it has charged depreciation at higher rates than those provided under the Companies Act, while comparables followed the depreciation rate as provided under the Companies Act. On verification, the same was not found to be correct by the TPO. Accordingly, the AO passed an order making adjustment of Rs. 13,15,10,788/- in respect of this transaction. 11. In appeal, Ld. CIT(A) allowed appeal of the assessee by following the decision of ITAT Pune in assessee’s own case for A.Y. 2009-10 with the following observations:- “4.3 I have carefully considered the facts of the case and submission filed by appellant, It is seen from previous year proceedings that the appellant has been granted "Depreciation adjustment" in its "Profit Level Indicator”(PLI) computation in AY 2009-10. This hap been accorded as the appellant has followed higher rates of depreciation compared to the rates of depreciation prescribed in the schedule to the Companies Act. This stand has been accepted by the Honourable ITAT, Pune in its order for AY 2009-10 in ITA No. 148/PUN/2017 and ITA No.28l/PUN/2017 dtd 07.06.2019. There is no change in the facts of the charging of higher depreciation rates in this AY 2013-14 as well. This is corroborated in the schedules to the audited financials of the appellant. Respectfully following the Honourable ITAT's decision in this case for AY 2009-10, the AO/TPO is directed to allow depreciation adjustment of Rs 6,92,31,995 in the computation of the PLI of the appellant. By doing so, the PLI of the appellant is restored to 2.38%. As per the final set of comparables in the TP order, the mean margin of the PLI is 4.01%. As this is within +/-3%, the TP adjustment in the manufacturing segment does not survive. Accordingly the adjustment of Rs. 13,15,10,788 is deleted. As the adjustment is deleted by restoring depreciation adjustment, the grounds of appeal on the addition / deletion of comparables and removal of management fees from the PLI computations are not adjudicated.” 12. The Department is in appeal before us against the aforesaid order passed by Ld. CIT(A). 13. Before us, the Department submitted that the principle of res judicata do not apply in assessment proceedings and submitted that Ld. CIT(A) erred in ITA Nos. 539 & 540/Ahd/2022 with C.O. Nos. 02&03/A/2023 DCIT vs. INA Bearing India Pvt. Ltd. Asst. Years –2013-14 & 2014-15 - 10 - placing reliance on the observation made by Pune ITAT in assessee’s own case for A.Y. 2009-10. 14. In response, the Counsel for the assessee placed reliance on the observations made by Pune ITAT in assessee’s own case for A.Y. 2009-10 and submitted that since the Ld. CIT(A) order follows the direction given by Pune ITAT in assessee’s own case, there is no infirmity in the order passed by Ld. CIT(A) so as to call for any interference. 15. We have heard the rival contentions and perused the material on record. 16. It would be useful to reproduce the relevant extract of the ITAT ruling in assessee’s own case for ready reference:- “8. We have noticed supra from the extraction of rule 10B(1)(e) that sub-clause (iii) provides that the net profit margin realized by a comparable company, determined as per sub-clause (ii) above, is adjusted to take into account the differences, if any, between the international transaction and the comparable uncontrolled transactions, which could materially affect the amount of net profit margin in the open market. It is this adjusted net profit margin of the comparable companies, as determined under sub-clause (iii), which is used for the purpose of making comparison with the net profit margin realized by the assessee from Its international transaction as per sub-clause (i). 9. There can be no dispute on the principle that calculation of 'Operating profit' as envisaged under Rule 10B(i)(e) embraces cumulative effect of all the items of income and expenses which are of operating nature, Ordinarily, there can be no question of considering each item of such operating expenses or income in isolation de hors the other expenses/income to claim adjustment on the ground of such expenditure or income of the assessee being on the higher or lower side seen individually or as a percentage of other operating expense/incomes in comparison with its comparables. The reason is obvious that when we consider the operating profit margin, the effect of all the individual higher or lower items of expenses or incomes is subsumed in the overall operating profit margin, ruling out the need for any adjustment on comparison of one-to-one items resulting into the determination of the operating profit margin. 10. A company may have taken a building on rent for carrying on its business, in which case, it will pay rent which will find place in the operating costs. For the ITA Nos. 539 & 540/Ahd/2022 with C.O. Nos. 02&03/A/2023 DCIT vs. INA Bearing India Pvt. Ltd. Asst. Years –2013-14 & 2014-15 - 11 - purpose of making comparison, one cannot contend that the payment of rent by one enterprise in comparison with a non-payment of rent by another, should be neutralized by giving proper adjustment from the operating profit of the comparable. The manifest reason is that the other enterprise may have its own office premises and in that case, the amount of depreciation on such premises will also form part of its operating cost. When we consider the operating profit of the first enterprise which is paying rent and then compare it with that of the second enterprise which is not paying any rent but is claiming depreciation on its own premises, the overall effect of rent in one case gets counterbalanced with depreciation on premises of the-other. 11. In the like manner, a company may have purchased new assets charging higher amount of depreciation allowance in its books of accounts vis-a-vis another comparable company using old assets with lower amount of depreciation. No adjustment on account of difference in the amount of depreciation of two companies is called for when the operating profits are determined because in the case of a company having purchased new asset, there will be higher depreciation and simultaneously lower repair cost and vice versa. The effect of all the individual items of operating expenses and incomes culminates into the overall operating profit margin. That is why, the legislature has provided for comparing the ratio of 'operating profit margin' to a similar base of the assessee with that of its comparables, thereby dispensing with the need for making any adjustment on account of higher or lower amount of individual items of expenses or incomes. Merely because the amount of depreciation of one enterprise is more or less than the other, can never be a ground for seeking adjustment. Such higher amount of depreciation may be due to large scale of the company and host of other factors. By considering percentage of operating profit margin under the TNMM of the assessee as well as comparables, the higher or lower volume of two companies becomes immaterial and so is the quantum of depreciation. The nitty-gritty of the matter is that no adjustment can be allowed simply for the reason that one company has charged higher amount of depreciation vis-a-vis its comparable companies. Not only no adjustment on this score is permissible, the assessee cannot also seek an exclusion or inclusion of a company on the ground that the ratio of its depreciation to total expenses or sales etc. is more or less in comparison with comparables. It is so for the reason that such higher percentage of depreciation to total expenses is marginalized by the lower percentage of repairs and other incidental costs of the assets and vice versa. Thus the contention of the Id. AR in this regard, being devoid from any substance, is liable to be and is hereby jettisoned. 12. However, the position may be different when there is a difference in the rates of depreciation charged by two companies on similar category of assets. One company may adopt the policy of charging depreciation on its assets in conformity with the rates prescribed in Schedule XIV of the Companies Act and other company may adopt a policy of charging depreciation at the higher rates than those prescribed under Schedule XIV. In such a situation, although both the companies use similar type of assets and everything else is also equal, but their respective operating profit percentages undergo change due to higher or lower rate of depreciation, thereby distorting their comparability. It is this difference in the amounts of ITA Nos. 539 & 540/Ahd/2022 with C.O. Nos. 02&03/A/2023 DCIT vs. INA Bearing India Pvt. Ltd. Asst. Years –2013-14 & 2014-15 - 12 - depreciation due to different rates of depreciation and not due to different quantums of depreciation simplicitor, which calls for bringing both the companies at par. It is an agreed proposition on behalf of the assessee that the TPO himself allowed adjustment on account of excess rate of depreciation claimed by the assessee in its accounts. We, therefore, uphold the impugned order in sofaras the numerator of PBIT in the TNMM is concerned, that is, inclusion of depreciation in the operating costs; and also in not allowing any further adjustment on account of higher amount of depreciation (other than higher rates for which suitable adjustment was granted by the TPO). The grounds taken by the assessee in this regard, therefore, fail.” 17. Accordingly, in the interest of justice, the TPO is directed to re-compute the adjustment in accordance with the direction given by Hon’ble Pune ITAT in assessee’s own case for A.Y. 2009-10 in ITA No. 148/Pun/2017 and ITA No. 281/Pun/2017. 18. In the result, Ground Nos. v to viii of the Department’s appeal are allowed for statistical purposes. 19. Before us, the Counsel for the assessee submitted that the Cross Objection is merely supporting the finding given by the Ld. CIT(A) in the appellate order. Accordingly, the Cross Objection filed by the assessee is also disposed of accordingly. Now we shall come up to the Department’s appeal for A.Y. 2014-15 20. We observe that Ground Nos. i to iv of the Department’s appeal are similar to Department’s Grounds i to iv for A.Y. 2013-14. Accordingly, in light of our observations made for A.Y. 2013-14, Grounds i to iv of the Department’s appeal for A.Y. 2014-15 are dismissed. 21. We observe that Ground Nos. v to viii of the Department’s appeal for A.Y. 2014-15 are similar to Grounds v to viii of Department’s appeal for A.Y. 2013-14. ITA Nos. 539 & 540/Ahd/2022 with C.O. Nos. 02&03/A/2023 DCIT vs. INA Bearing India Pvt. Ltd. Asst. Years –2013-14 & 2014-15 - 13 - 22. In light of our observations with respect to similar grounds of appeal for A.Y. 2013-14, Grounds v to viii of Department’s appeal are restored to the file of TPO for carrying out the necessary adjustments as per directions given in assessee’s own case by Hon’ble ITAT Pune Bench for A.Y. 2009-10. 23. In the result, Ground Nos. v to viii of the Department’s appeal are allowed for statistical purposes. 24. Before us, the Counsel for the assessee submitted that the Cross Objection filed by the assessee for A.Y. 2014-15 are only supporting the order passed by Ld. CIT(A). Accordingly, the Cross Objections are also disposed in light of our observation made in the preceding paragraphs. 25. In the combined result, the appeal filed by the Department is partly allowed for statistical purposes and the Cross Objection filed by the assessee are allowed. This Order pronounced in Open Court on 12/01/2024 Sd/- Sd/- (WASEEM AHMED) (SIDDHARTHA NAUTIYAL) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad; Dated 12/01/2024 TANMAY, Sr. PS TRUE COPY आदेश क त ल प अ े षत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. यथ / The Respondent. 3. संबं धत आयकर आय ु त / Concerned CIT 4. आयकर आय ु त(अपील) / The CIT(A)- 5. वभागीय त न ध, आयकर अपील!य अ धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड' फाईल / Guard file. आदेशान ु सार/ BY ORDER, उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील य अ धकरण, अहमदाबाद / ITAT, Ahmedabad
