M/s Sarens Heavy Lift India (P) Ltd, New Delhi V. ACIT, New Delhi

CO 286/DEL/2015

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 3701 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 5 month(s) 3 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 02-04-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: I
• Assessment Year: 2010-2011
• Appeal Filed On: 29-10-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Business income; Depreciation; Transfer pricing; International transaction; Fair market value; Valuation report; Arm length price
• Section: 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH I-2 NEW DLEHI BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI K. NARASIMHA CHARY, JUDICIAL MEMBER I.T.A. NO.1027/DEL/2015 ASSESSMENT YEAR: 2010-11 ACIT, CENTRAL CIRCLE 22(1), VS M/S SARENS HEAVY LIFT (I) P. LTD., NEW DELHI F-90/25, OKHLA INDUSTRIA L AREA, PHASE-1, NEW DELHI. (PAN: AAMCS9036P) CROSS OBJECTION NO.286/DEL/2015 (IN I.T.A. NO.1027/DEL/2015) ASSESSMENT YEAR: 2010-11 M/S SARENS HEAVY LIFT (I) P. LTD., VS ACIT, CENTRAL CIRCLE 22(1), F-90/25, OKHLA INDUSTRIAL AREA, NEW DELHI. PHASE-1, NEW DELHI. (PAN: AAMCS9036P) (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI HARI OM JINDAL DEPARTMENT BY: SHRI H.K. CHOUDHARY, CIT-DR SHRI SANJAY KUMAR YADAV, SR. DR DATE OF HEARING: 13.03.2018 DATE OF PRONOUNCEMENT: 02 .04.2018 ORDER PER K.NARASIMHA CHARY, JM AGGRIEVED BY THE DIRECTIONS DATED 10.11.2014 OF THE DISPUTED RESOLUTION PANEL-III, NEW DELHI (DRP), IN OBJECTION NO 34, R EVENUE PREFERRED THIS APPEAL. 2 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A WHOLLY-OWNED SUBSIDIARY OF SARENS NV, BELGIUM AND IS IN THE BUSINESS OF HIRING AND LEASING HEAVY CRANES. SARENS GROUP IS STATED TO BE ONE OF THE GLOBAL LEAD ERS IN TRANSPORT AND HANDLING OF HEAVY EQUIPMENTS. APART FROM TRANSPORT AND HANDLING, SARENS GROUP IS ALSO ENGAGED IN RETAIL AND THE OPERATION OF CRANES AND T HE PROBLEM SOLVING LINKED WITH THE CRANE WORK, RENDERING SERVICES WITH HEAVY CRANES AND EQUIPMENTS FOR ERECTION JOBS IN BIG INDUSTRIAL AND THE CIVIL PROJE CTS IN THE FIELD OF PETROCHEMICALS, STEEL PLANTS AND MAJOR CIVIL WORKS. 3. THE ASSESSEE FILED THEIR RETURN OF INCOME ON 15/ 10/2010 DECLARING AN INCOME OF RS.2,67,60,419/-. DURING THE SCRUTINY, LD. AO FOUND THAT IN THE RELEVANT PREVIOUS YEAR, THE ASSESSEE PURCHASED NINE USED CRAN ES FROM ITS AES FOR RS.34,32,73,475/-AND CUSTOM AUTHORITIES ASSESSED T HE VALUE OF CRANES FOR CUSTOM PURPOSE AT RS.35,50,93,450/-. ASSESSEE ALSO GOT TO SUCH CRANES VALUED BY INDEPENDENT A VALUE AS WHO INSPECTED THE CRANES BEF ORE IMPORT OF THE SAME. 4. ASSESSEE BENCHMARKED THIS INTERNATIONAL TRANSACT ION USING THE TNMM. UNDER TNMM THE ASSESSEE HAD CONDUCTED EXTERNAL COMP ARISON OF THE RATIO OF OPERATING PROFIT IN RELATION TO TOTAL SALES WITH TH E ARITHMETIC MEAN OF OPERATING PROFIT MARGIN OF COMPARABLE COMPANIES. OPERATING PR OFIT MARGIN OF ASSESSEE FOR THE FINANCIAL YEAR 2009-10 WAS 5.94% AS COMPARED TO 4.82% OF COMPARABLE COMPANIES, AND THEREFORE INTERNATIONAL TRANSACTIONS OF ASSESSEE WAS HELD IN ACCORDANCE WITH ARMS LENGTH STANDARD REQUIRED UND ER THE INDIAN REGULATIONS. HOWEVER, LD. TPO REJECTED THE METHOD ADOPTED BY THE ASSESSEE FOR THE PURPOSE OF BENCHMARKING OF INTERNATIONAL TRANSACTIONS RELAT ED TO PURCHASE OF CRANES AND APPLIED CUP METHOD AND HAD TAKEN THE WRITTEN DOWN V ALUE OF THE CRANES IN THE 3 BOOKS OF ASSOCIATED ENTERPRISE AS ALP UNDER CUP MET HOD AND MADE AN ADJUSTMENT OF RS. 18,46,04,600/-. LD. TPO ALSO MAD E ADJUSTMENT OF RS.15,94,752/-AS PROPORTIONATE DISALLOWANCE OF INTE REST PAID IN RELATION TO PURCHASE OF CRANES FROM AES. 5. ASSESSEE FILED OBJECTIONS BEFORE THE LEARNED DRP AND ARGUED THAT THE LD. TPO HAS ERRED IN COMPUTING ARM LENGTH PRICE AS WRIT TEN DOWN VALUE OF CRANES IN THE BOOKS OF AES AS ARMS-LENGTH PRICE UNDER CUP ME THOD, WHICH IS AGAINST THE PROVISIONS OF LAW. IT WAS FURTHER ARGUED BY THE ASSE SSEE THAT THE TPO HAS ERRED IN COMPUTING ARMS-LENGTH PRICE AS WRITTEN DOWN VALUE OF CRANES IN THE BOOKS OF AE WITHOUT COMPARING THE PURCHASE PRICE OF CRANES WITH FAIR MARKET VALUE WHICH CAN BE MEASURED BY CAPITALIZING THE RENT EARNED FROM THI RD PARTIES IN RESPECT OF SUCH CRANES IN THE ABSENCE OF IDENTICAL INTERNATIONAL TR ANSACTIONS. IT WAS FURTHER ARGUED THAT LD. TPO HAS ERRED IN REJECTING THE VALUATION REPORT OF INDEPENDENT VALUER IN RESPECT OF CRANES PURCHASED FROM AE WITHOUT POINTIN G OUT ANY DEFECT IN SUCH REPORT. 6. ASSESSEE FURTHER POINTED OUT THAT INSTEAD OF TAK ING THE DIFFERENCE BETWEEN THE ARMS-LENGTH PRICE AND THE PURCHASE PRICE OF CR ANES, TPO ERRED IN MAKING THE ADJUSTMENT, BEING THE DIFFERENCE BETWEEN THE ARMS- LENGTH PRICE AND VALUE TAKEN BY THE CUSTOM AUTHORITIES. 7. BEFORE THE DRP ASSESSEE FURNISHED THE DETAILS UN DER THE DCF METHOD. THEY HAVE ALSO SUBMITTED THE CHART DEPICTING THE VALUE O F CRANES AS PER INVOICE AND ALSO AS COMPUTED BY THE CUSTOMS AUTHORITIES AND THE CHARTERED ENGINEERS. FURTHER, ASSESSEE PLACED RELIANCE ON A DECISION OF THE HYDERABAD BENCH OF THE 4 TRIBUNAL IN TECUMSEH PRODUCTS INDIA (P) LTD VERSUS ACIT (2014) 41 TAXMANN.COM 385 (HYDERABAD-TRIB). 8. DRP CONSIDERED THE CONTENTIONS OF THE ASSESSEE I N THE LIGHT OF THE MATERIAL AVAILABLE WITH THEM AND OBSERVED THAT AS AGAINST TH E VALUATION REPORT FURNISHED BY THE ASSESSEE, TPO HAS NOT CARRIED OUT ANY EXERCIS E FOR THE VALUATION OF THE MACHINERY BY ANY APPROVED VALUER/CHARTERED ENGINEER. DRP FURTHER OBSERVED THAT OUT OF 9 CRANES, ONE CRANE WAS OF THE YEAR 1987, ANO THER OF 1992 AND ALL OTHER OF 2007 WITH THE RESIDUAL LIFE EXPECTANCY OF AT LEAST 1 0 YEARS. 9. BASING ON THESE FACTS DRP OBSERVED THAT THE WRIT TEN DOWN VALUE OF CRANES IN THE BOOKS OF THE AE CANNOT BE CONSIDERED AS ALP AS IT IS NOT DERIVED FROM THE TRANSACTIONS BETWEEN ENTERPRISES OTHER THAN ASSOCIA TED ENTERPRISES. THEY HAVE ALSO CONSIDERED THE SUBMISSION OF THE ASSESSEE THAT ALP WILL BE BASED ON VALUATION DONE BY CHARTERED ENGINEER OR ACCEPTED BY C USTOM AUTHORITIES OR DONE BY DCF METHOD, SOME OF THE RECOGNIZED METHODS WHICH ARE ACCEPTED BY VARIOUS BENCHES OF THE TRIBUNAL AND MORE PARTICULARLY IN TEC UMSEH PRODUCTS INDIA PRIVATE LIMITED CASE (SUPRA) WHEREIN IT WAS HELD THAT THE A SSESSEE JUSTIFIED THE PRICE PAID BY WAY OF A CERTIFICATE WHICH CAN BE CONSIDERED AS EX TERNAL CUP AND SINCE THE TPO/DRP DID NOT RELY ON ANY OTHER CERTIFICATE AND IN THE ABSENCE OF ANY CONTRARY INFORMATION, PRICE PAID BY ASSESSEE, WHICH WAS LESS THAN THE VALUE MENTIONED IN THE CERTIFICATE CAN BE ACCEPTED AS SUCH. 10. HAVING CONSIDERED ALL THESE ASPECTS LD. DRP DIR ECTED THE TPO TO ACCEPT THE VALUATION REPORT OF THE ASSESSEE COMPANY AND TO DELE TE THE EDITION MADE ON ACCOUNT OF THE ALP OF CRANES. CONSEQUENTLY DRP ALSO DIRECTED THE DELETION OF THE ADJUSTMENT ON ACCOUNT OF PAYMENT OF INTEREST AMOUNT ALSO. HENCE, THE REVENUE IS 5 IN THIS APPEAL BEFORE US CHALLENGING SUCH DELETIONS . AT THE SAME TIME, ASSESSEE ALSO PREFERRED A CROSS OBJECTIONS IN SUPPORT OF THE DRPS DIRECTIONS. 11. AT THE OUTSET, IT IS THE SUBMISSION OF LD. AR T HAT THE APPEAL PREFERRED BY THE REVENUE HAD TO BE QUASHED, INASMUCH AS THE FINANCE ACT 2012 W. E. F. 1ST DAY OF JULY, 2012 PROVIDES THAT THE AO MAY ALSO FILE AN APPE AL BEFORE THE ITAT AGAINST AN ORDER PASSED IN PURSUANCE OF DIRECTIONS OF THE DRP, BUT THE GOVERNMENT HAS AMENDED THE ACT OMITTING SUB-SECTIONS (2A) AND (3A) OF SECTION 253 BY WAY OF FINANCE ACT, 2016. SINCE SUB-SECTIONS (2A) OF SECTI ON 253 STOOD OMITTED FROM ACT WITHOUT ANY SAVING CLAUSE WOULD MEAN THAT THE PROVIS IONS WERE NEVER IN EXISTENCE, THEREFORE, APPEAL PREFERRED BY THE APPELL ANT HAD TO BE QUASHED. 12. WE HAVE GONE THROUGH THE DECISIONS CITED ON BEH ALF OF THE ASSESSEE. THE DECISION IN GENERAL FINANCE COMPANY (SUPRA) IS IN RE SPECT OF THE EFFECT OF SECTION 6 OF GENERAL CLAUSES ACT OF 1897 AND HELD THAT THE PRINCIPLE UNDERLYING SECTION 6 OF GENERAL CLAUSES ACT AN SAVING RIGHT TO INITIATE PROCEEDINGS FOR LIABILITIES INCURRED DURING CURRENCY OF ACT WOULD NOT APPLY TO OM ISSION OF A PROVISION IN AN ACT BUT ONLY TO REPEAL, OMISSION BEING DIFFERENT FRO M REPEAL. 13. INSOFAR AS MERITS ARE CONCERNED, IT IS THE ARGU MENT OF THE LD. DR THAT THE ASSESSING OFFICER WAS JUSTIFIED IN TAKING THE ARMS -LENGTH PRICE OF THE CRANES AT THE WRITTEN DOWN VALUE OF THE CRANES IN THE BOOKS OF TH E ASSOCIATED ENTERPRISE, INASMUCH AS SUCH WRITTEN DOWN VALUE COULD BE TAKEN AS INTERNAL CUP. HE SUBMITS THAT LD. DRP COMMITTED AN ERROR IN NOT CONSIDERING THIS ASPECT AND BY PROCEEDING WITH AN EXEMPTION THAT CUP ALWAYS REQUIRES THE COMPA RISON OF TRANSACTIONS BETWEEN UNRELATED PARTIES. HE SUBMITS THAT CONSEQUE NTLY THE ADDITION MADE BY THE LD. AO HAS TO BE SUSTAINED. 6 14. PER CONTRA, IT IS THE ARGUMENT OF THE LD. AUTHO RISED REPRESENTATIVE THAT THE WRITTEN DOWN VALUE OF CRANES IN THE BOOKS OF THE AS SOCIATED ENTERPRISE OF THE ASSESSEE CANNOT BE CONSIDERED AS ALP AS IT IS NOT D ERIVED FROM THE TRANSACTION BETWEEN ENTERPRISES OTHER THAN ASSOCIATED ENTERPRIS ES. BASING ON THE DECISIONS REPORTED IN CIT V. AJAX PRODUCTS LIMITED [1965] 55 ITR 741 (SUPREME COURT), DCIT, CIRCLE 3(1), NEW DELHI V. C-DOT ALCATEL-LUCENT RESE ARCH CENTRE (P.) LTD, 66 TAXMANN.COM 281 ( DELHI-TRIB.) [2016], SOCIAL MEDI A INDIA LTD. VS. ASSTT. CIT [2013] 40 TAXMANN.COM 37 (HYDERABAD -; TRIB.)/[2013] 28 ITR(T) 212 (HYDERABAD - TRIB.)/[2014] 148 ITD 222 (HYDERABAD - TRIB.), INTE L ASIA ELECTRONICS INC., INDIA, BRANCH OFFICE V. ASSTT. DIT [2011] 9 TAXMANN.COM 19 7 (BANG. - IT AT), ACIT V. KOCH CHEMICAL TECHNOLOGY GROUP (INDIA) LTD. [2015] 64 TAX MANN.COM 464 (MUMBAI- TRIB) , AND PERMA PIPE INDIA (P.) LTD. V. DY. DIT [2 016] 65 TAXMANN.COM 319 (MUMBAI - TRIB.) HE SUBMITS THAT YOU WILL BE BASED O N VALUATION DONE BY THE CHARTERED ENGINEER COULD BE ACCEPTED. 15. HE FURTHER SUBMITTED THAT IN VIEW OF THE DECISI ONS IN GKN SINTER METALS (P.) LTD. V. ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-9,PUNE 71 TAXMANN.COM 297 [2016], COASTAL ENERGY (P.) LTD V. ASSISTANT COM MISSIONER OF INCOME TAX, COMPANY CIRCLE- 1(3) CHENNAI IT AT, APOLLO TYRES LTD V. COMMISSIONER OF INCOME TAX (2002) (255 ITR 273) & M/S VADILAL CHEMICALS LT D V. THE STATE OF ANDHRA PRADESH & ORS.MOVAT V BETTS MOTORS LTD [1958] 3 ALL ER 402, THE DECISION WHICH IS CITED IN MOBILECOMMUNICATION INDIA P LTD V DCIT [2011] 7 ITR (TRIB) 219 (DEL), MG ABROL, ADDITIONAL COLLECTOR OF CUSTOMS V SHANTI LAI CHHOTALAL & CO AIR 1966 SC 197, AND AMBO AGRO PRODUCTS LTD. V. DY CIT [ 2014] 46 TAXMANN.COM 105 (KOLKATA - TRIB.) THE VALUATION ACCEPTED BY THE CUS TOMS AUTHORITIES COULD ALSO BE TAKEN AS ALP OF THE CRANES. LASTLY SUBMITS THAT IN ASCENDAS (INDIA) P. LTD. VS 7 DCIT (2013) 33 TAXMANN,.COM 295, THE DCF METHOD WAS ACCEPTED TO DETERMINE THE ALP. 16. IN RESPECT OF DETERMINABILITY OF THE FAIR MARKET VALUE OF THE CRANES BY USING DISCOUNTED CASH FLOW METHOD, BY PLACING RELIAN CE ON RELIANCE ON THE DECISIONS IN VISTEON ASIA HOLDINGS INC. V. DCIT, I NTERNATIONAL TAXATION-II (1), CHENNAI 73 TAXMANN.COM 33 (CHENNAI-TRIB), VIHI, LLC V. ADDITIONAL DIRECTOR OF INCOME TAX, INTERNATIONAL TAXATION, CHENNAI 42 TAXM ANN.COM 304 (CHENNAI-TRIB), ASCENDAS (INDIA) (P. )LTD. V. DY. CIT [2013] 33 TAXM ANN.COM 295 (CHENNAI - TRIB.) AND TALLY SOLUTIONS (P.) LTD. V. DY. CIT [2011] 48 SO T 110/14 TAXMANN.COM 19 (BANG.)HE SUBMITTED THAT PRESENT VALUE BY DCF METHOD OF 9 CRANES IS RS.43,92,65,295.78 WHILE INVOICE VALUE OF SUCH CRAN ES AS PER INVOICE VALUE IS RS.34,32,73,475. DCF METHOD IS SCIENTIFIC METHOD TO CALCULATE THE VALUE OF CRANES BY DISCOUNTING THE RENTAL INCOME. 17. LASTLY HIS CONTENTION IS THAT S IS HELD IN CIENA INDIA (P.) LTD. V. ITO [2015] 59 TAXMANN.COM 92 (DELHI - TRIB.) SINCE THE TRANSACTIO N OF PURCHASE OF FIXED ASSETS IS A CAPITAL TRANSACTION, THIS, IN ITSELF, DOES NOT AF FECT THE TOTAL INCOME OF THE ASSESSEE. IT IS ONLY THE OFF-SHOOT OF SUCH TRANSACTI ON IN THE CAPITAL FIELD, BEING DEPRECIATION ALLOWANCE ON SUCH ALP OF THE TRANSACTI ON, WHICH AFFECTS THE TOTAL INCOME. 18. WE HAVE CONSIDERED THESE SUBMISSIONS ON EITHER SIDE IN THE LIGHT OF THE RECORD. THERE IS NO DISPUTE THAT THE ACTUAL PRICE P AID BY THE ASSESSEE FOR 9 CRANES IS RS.34,32,73,475/-. THE CRANES WERE VALUED BY AN I NDEPENDENT CHARTERED ENGINEER ACCORDING TO WHOM THE PRICE WOULD BE RS.34 ,15,84,450/-, WHEREAS THE 8 VALUATION AS PER CUSTOM AUTHORITIES WAS RS.34,46,69 ,670/-. THE FAIR MARKET VALUE BY FOLLOWING THE DCF METHOD COMES TO RS.43,92,65,295 /-. ALL THE RELEVANT DETAILS WERE MADE AVAILABLE TO THE AUTHORITIES BELOW AND CO NSIDERED BY THEM. 19. HOWEVER, THE ASSESSING OFFICER IGNORED THIS MAT ERIAL AVAILABLE ON RECORD AND PROCEEDED TO DETERMINE THE ALP BASING ON THE WR ITTEN DOWN VALUE OF THE CRANES AS RECORDED IN THE BOOKS OF THE SELLER BY APP LYING THE CUP METHOD. LD.DRP ACCEPTED THE CONTENTION OF THE ASSESSEE THAT THE WR ITTEN DOWN VALUE OF CRANES IN THE BOOKS OF THE ASSOCIATED ENTERPRISE OF THE ASSES SEE CANNOT BE CONSIDERED AS ALP AND IS NOT DERIVED FROM THE TRANSACTION BETWEEN ENTERPRISES OTHER THAN ASSOCIATED ENTERPRISES. FURTHER LD. DRP OBSERVED T HAT IT IS NOBODYS CASE THAT AN OLD ASSET CANNOT BE SOLD AT A PRICE EXCEEDING NET B OOK VALUE. HAVING CONSIDERED THE DECISIONS RELIED UPON BY THE ASSESSEE IN SUPPORT OF THEIR CONTENTION THAT EITHER THE VALUATION DONE BY THE CHARTERED ENGINEER, OR THE VALUE ACCEPTED BY THE CUSTOM AUTHORITIES, OR THE VALUE DERIVED BY DCF METH OD COULD BE CONSIDERED FOR A DETERMINATION OF THE ALP. LD. DRP CONSIDERED THE D ETAILS FURNISHED BY THE ASSESSEE AS PER THESE 3 VALUATIONS NAMELY, AS VALUED BY THE CHARTERED ENGINEER, ARE AS VALUED BY THE CUSTOMS AUTHORITIES, OR AS VAL UED BY FOLLOWING THE DCF METHOD AND HAVING DONE ALL THIS EXERCISE DRP REACH THE CONCLUSION THAT THE METHOD ADOPTED BY THE ASSESSING OFFICER IS NOT AN AC CEPTABLE ONE. 20. WE HAVE GONE THROUGH THE DECISIONS RELIED UPON BY THE ASSESSEE. AS A MATTER OF FACT DRP EXTRACTED THE RELEVANT PORTIONS OF THE DECISION REPORTED IN TECUMSEH (SUPRA) IN SUPPORT OF THEIR REASONING AND CONCLUSION. IN THE CIRCUMSTANCES, WE ARE IN AGREEMENT WITH THE DRP THA T THE ASSESSEE JUSTIFIED THE PRICE PAID BY THEM WITH THE VALUATION DONE BY THE IND EPENDENT CHARTERED 9 ENGINEERS, OR THE CUSTOMS AUTHORITIES OR DETERMINED UNDER DCF METHOD. THE REASONING GIVEN BY THE DRP TO REACH THE CONCLUSION T HAT THE ADDITIONS CANNOT BE SUSTAINED IS IMPECCABLE AND WE FIND IT DIFFICULT TO TAKE A DIFFERENT VIEW IN VIEW OF THE SAID LEGAL POSITION. 21. WE, THEREFORE, ARE OF THE OPINION THAT THE IMPU GNED DIRECTIONS GIVEN BY THE LD. DRP DO NOT SUFFER AN ILLEGAL INFIRMITY SO AS TO INVITE THE INTERFERENCE OF THIS TRIBUNAL IN THIS APPEAL. WITH THIS VIEW OF THE MATT ER WE FIND THE GROUNDS OF APPEAL ARE DEVOID OF MERITS AND THE APPEAL IS LIABLE TO BE DISMISSED. CONSEQUENTLY WHILE UPHOLDING THE DIRECTIONS GIVEN BY THE LD. DRP, WE DI SMISS THE APPEAL OF THE REVENUE. IN VIEW OF THE DISMISSAL OF THE APPEAL, CR OSS OBJECTION PREFERRED BY THE ASSESSEE BECOMES INFRUCTUOUS AND THEREFORE, THE CRO SS OBJECTION IS ALSO DISMISSED. 22. IN THE RESULT, BOTH THE APPEAL OF THE REVENUE A ND THE CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 2 ND APRIL, 2018. SD/- SD/- (R.K. PANDA) (K. NARASIMHA CHARY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 2 ND APRIL, 2018 VJ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) BY ORDER 5. DR, ITAT ASSTT. REGISTRA R, ITAT