M/s Infinera India Private Limited, Bangalore V. ITO, Bangalore

ITA 1008/BANG/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0224 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 05-05-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 30-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P K PRASAD SHRI UMASHA NKAR CA
• Keywords: Transfer pricing; International transaction; Bad and doubtful debts

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE B BENCH, BANGALORE BEFORE SHRI A.K.GARODIA, ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO, JUDICIAL MEMBER IT(TP)A NO.1008(BNG.)/2014 (ASSESSMENT YEAR : 2009-10) M/S INFINERA INDIA PVT.LTD., UNIT NO.401, LEVEL-4, PRESTIGE SOLITAIRE, 6, BRUNTON ROAD, BANGALORE-560 025 PAN NO.AABCI1411R APPELLANT VS THE INCOME TAX OFFICER, WARD-11(2), BANGALORE RESPONDENT AND IT(TP)A NO.977(BNG)/2014 (ASSESSMENT YEAR : 2009-10) (BY REVENUE) ASSESSEE BY : SHRI P.K.PRASAD,& SHRI UMASHA NKAR, CA REVENUE BY : DR. SHANKAR PRASAD, JCIT DATE OF HEARING : 05-05-2016 DATE OF PRONOUNCEMENT : 30-06-2016 O R D E R PER SHRI A.K GARODIA, AM THESE ARE CROSS APPEALS FILED BY THE ASSESSEE AND T HE REVENUE WHICH ARE DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-IV, BA NGALORE DATED 29-05-2014 FOR THE ASSESSMENT YEAR : 2009-10. 2. THE GROUNDS RAISED BY THE ASSESSEE IN ITS APPEAL ARE AS UNDER; 2. T H E G ROUNDS M E NTI O N E D H E R E IN TAK E N BY TH E A PP E LLANT AR E WITH O UT PR E JUD ICE T O O N E AN O TH E R . 2 IT(TP)A NOS.1008 & 977(B)/14 1. TH A T THE ORD E R PA S S E D B Y TH E LEAR N ED COMMISSION E R OF INCOME T A X (APP EA L S ) - IV , B A N G ALOR E [ ' CIT (A)] , TO THE EXTENT PR E JUDICI A L TO THE APPELLANT , I S BAD IN L AW AND LIABL E TO B E QUA S H E D . TRA N S F E R P RICI N G RE L A T ED 3. THAT TH E L EA RN E D CIT(A) E RR E D BOTH IN F A CT S A ND LA W IN C ONFIRMIN G TH E AC T IO N OF TH E L EA RN E D TR A N SFER PRI C ING OFFICER 'S ( ' TPO ' ) /L E ARNED ASSESSIN G OFFI CER ( 'A O ') O F MAKIN G A N A D J U S TM E NT TO TH E TR A N SFE R P R I CE OF TH E A PPELL A NT IN RES PECT OF CONTR A CT S O FT WARE D EVE LOPM E NT SE RVI CES PR OV ID E D T O IT S ASSOC I A T E D E NT E RPRIS E S HOLDIN G TH A T TH E INT E RN A TIONAL T RA N SAC TION S D O N O T S A TI S F Y TH E AR M 'S LE N G TH PRINCIPL E E N VISAGE D UND E R THE IN C OM E T AX A C T , 1961 (TH E ' ACT ' ) 4. TH A T TH E LEARN E D CITCA) ERRED IN UPHOLDIN G TH E L EA RN E D TPO A PPR OAC H OF REJECTI N G TH E TR A N SFER PR IC IN G ( ' TP ' ) DOCUM E NT A TI O N M A INT A INED B Y TH E APP E LL A NT. 5. TH AT TH E L EA RN E D CIT(A) E RR E D IN UPHOLDIN G IN C LU S I O N OF CO MP A NI ES IN TH E CO M PA R A BIL I T Y A N ALYS I S, W H IC H A R E DI FF E RENT FR O M APP E LL A NT IN FUNCTION S, ASSE T S A ND R I SK P RO FIL E A ND REJEC T ION OF T H E CO MP A NI ES TH A T ARE S IMIL A R TO THE APP E LL A NT , W HIL E PERFORMIN G C O MP A R A B I LIT Y A N A L YS I S B Y TH E L EA RN E D TPO A ND I N D O IN G SO A L SO E RR E D IN I G NORIN G TH E LIMITED RI S K N A TUR E O F TH E SO FT WA R E D EVE L O PM E NT SE R V I CES PRO V ID E D B Y TH E A PP E LLANT A ND N O T PRO V IDING ADJUSTM E NT O N ACCO UNT O F RI S K DIFF E R E NTI A L W ITH ENTR E PR E N E URI A L COMPARABLES , AS R E QUIR E D WHILE DE T ERMINING TH E ARM 'S L E N G TH PRIC E O F TH E INT ER N A TION A L TRANS A CTI O N S OF TH E APPEL L ANT . 6. TH A T TH E L EA RN E D CITCA) E RRED IN UPHOLDING APPLI C ATION O F DIFF E R E NT QU A NTIT A TI VE A ND QU A LITATI VE FILT E R S B Y TH E L E ARN E D TPO AND IN DOING S O GROSSL Y E RR E D IN: A. U PH O LDIN G TH E L EA RN E D TPO ' S A PPR OAC H O F R E JEC TIN G CE RT A IN CO MP A R A BL E CO MP A NI ES ID E NTIFI ED BY TH E A PP E LL A NT B Y A PPL Y IN G E MPLO Y EE C O S T G RE A TER TH A N 25 % O F T O T A L REVE NU E AS A CO MP A RABILIT Y C RIT E RI O N ; B. U PHOLDIN G TH E L EAR N E D TPO ' S A PPRO AC H O F R EJ ECTIN G CER T A IN C O MP ARA BL E CO MP A NIE S ID E NTIFI ED B Y TH E A PP E LL A NT B Y A PPL Y IN G EX P OR T EA RNIN GS G R EA T ER TH A N 7 5 % O F S AL ES AS A CO MP A R A BILIT Y C RIT ER ION ; C. U PH O LDIN G TH E L EA RN E D TPO ' S A PPR OAC H O F R EJEC TIN G CE RT A IN CO MP A R A BL E CO MP A NI ES ID E NTIFI ED BY TH E A P P E LL A NT F O R H AV IN G DIFF E R E NT AC CO UNTIN G YEAR ( I . E. CO MP A N IES H AV IN G ACCO UNT ING YEAR O TH E R TH A N MA R C H 3 1 OR CO M PA NI ES W H O S E FIN A NCI A L S T A T E M E NT S WE R E FO R A P E RI O D O TH ER TH A N 12 M ON TH S); D. U PH O LDING TH E L EA RN E D TPO 'S A PP R O AC H OF A PPL YI N G TH E TURNO VE R < 1 C R O R E FOR REJEC TI O N OF CO MP A R AB L E C OMP A N IE S ; 6. TH A T TH E L EA RN E D CI T C A) E R RE D IN UPHOLDIN G R EJEC TI O N O F TH E QUANTIT A TI VE 3 IT(TP)A NOS.1008 & 977(B)/14 A ND QU A L I T A T IVE FILT E R S A PPLI E D BY TH E APP E LLANT A ND IN D O IN G SO G R OSS L Y E R RED IN : A. R E J E CTIN G CE RT A IN CO MPAR A BL E COMP A NI ES ID E NTIFI E D B Y TH E APP E LL A NT B Y A PPL Y ING EXP O RT EA RNIN GS G R E ATER THAN 2 5 % O F SA L E S AS A COMP A R A BILIT Y CR IT ER I O N ; B. ACCEPTIN G CE RT A IN CO MP A R A BLE COMP A NI ES R E J EC T E D B Y TH E APP E LLANT B Y APP L Y IN G E X CE PTIONAL YEA R( S ) O F OP E RATI O NS AS A CO MP A R A BILIT Y CRIT ER ION . 7. THAT THE LEARNED CIT(A) E R R ED IN UPHOLDING T HE LEARNED TPO 'S APPRO AC H O F NOT APPL Y ING MULTIPLE Y E A R / PRIOR YEA R DAT A FOR COMP A RABL E C OMPANI ES W HIL E D E T E RMININ G TH E A RM 'S L E N G TH PRI CE A ND IN DOING S O ALS O E RR E D IN USING THE DATA AS A T TH E TIM E OF A SSES S M E NT P ROCEE D I N G S , IN S T EA D O F THAT AVA ILABL E DURIN G IT 2008-09 , WH E REIN THE APP E LLANT WAS R E QUIR E D TO PR E P A R E A ND MAINT A IN TH E TP DO C UM E NT A TION . S. TH A T THE L E ARNED CIT(A) ERRED IN E RRED IN UPHOLD I NG THE REJ EC TION OF 2 CO MP A R A BLE COMPANIES , THINKSOFT GLOBAL SER V IC E S LIMIT E D AND F C S SOFTWAR E SOLUTION S LIMIT E D , B Y TH E L EA RN E D TPO B Y STATING THAT TH E WORKIN G CAPIT A L ADJU S TMENT RE S ULTED IN R E DUCTION O F PROFIT M A R G IN S B Y MOR E THAN 4 % . 9. THAT THE LEARNED CIT(A) E RR E D IN UPHOLDIN G TH E CO MPUT A TI O N OF WORKIN G CAPITAL ADJUSTM E NT B Y CONSIDERING THE INCORR E CT OP E RATIN G C OSTS , R ECE IV A BLE S A ND P AYA BL E S A MOUNT OF CERTAIN COMP A RAB L E COMPANIES. 10. THAT THE L E ARNED CIT(A) ERRED IN UPHOLDING TH E A CTION OF THE L E ARN E D AO / L E ARNED TPO I N LIMITIN G THE WORKING CAPITAL ADJUSTMENT WHILE D E TERMINING THE A RM ' S L E N G TH PRIC E . 11. THAT THE LEARNED CIT(A) ERRED IN UPHOLDING THE ACTI ON OF THE LEARNED TPO IN I N C LUSION OF COMPANIES WITH HUGE T URNOVER AS COMP A RABLE TO THE APPELLANT . 12. THAT THE APPELLANT PRA Y S TO ALLOW TH E BENEFIT OF RANGE OF + / -5 % AS PRO V ID E D IN PROVISO TO SECTION 92C(2) OF THE ACT, WHILE DET E RMINING THE ARM ' S LENGTH PRIC E . 13. THAT THE APPEL L A NT PRAYS TO COMPUTE THE A RM ' S L ENGTH PRI CE B Y CONSID E RIN G CORRE C T OP E RATING M A R G INS OF SOM E OF TH E COMPARABLE COMPANIES. 4 IT(TP)A NOS.1008 & 977(B)/14 THAT TH E APP E LLANT CR A VES LE AV E TO A DD TO A ND / OR TO A LT E R , A M E ND , RE SCIND , M O DIF Y TH E GROUNDS HER E IN A BO VE O R PRODUCE FURTHER DOCUMENTS BEFORE OR A T TH E TIME OF HE A RIN G O F THIS APPE A L . 3. THE ASSESSEE HAS ALSO RAISED TWO ADDITIONAL GROU NDS WHICH ARE AS UNDER: 14. THAT THE LD. ITO, WARD-1(2), BANGALORE (AO) AN D THE LD. CIT(A) ERRED IN CONFIRMING THE ACTION OF THE LD. DCIT, TP-V, BANGAL ORE OF ACCEPTING PERSISTENT SYSTEMS LTD/ WHICH FAILS THE TEST OF COMPARABILITY AND THUS NOT COMPARABLE TO THE APPELLANT IN RESPECT OF ITS SOFTWARE DEVELOPME NT SERVICES. 15. THAT THE LD. AO AND THE LD CIT(A) ERRED IN CONF IRMING THE ACTION OF THE LD. TPO OF ERRONEOUSLY COMPUTING THE OPERATING PROFIT M ARGIN OF CERTAIN COMPANIES (SASKEN COMMUNICATION TECHNOLOGIES LTD, PERSISTENT SYSTEMS LTD., AND LARSEN & TOUBRO INFOTECH LTD., THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR WIT HDRAW ALL OR ANY OF THE GROUNDS OF APPEAL AND TO SUBMIT SUCH STATEMENTS, DOCUMENTS AND PAPERS AS MAY BE CONSIDERED NECESSARY EITHER AT OR BEFORE THE APPEAL HE ARING. 4. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER 1. THE ORDER OF THE CIT (APPEALS), REVENUE, IS OPPOSED TO LAW AND THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE CIT(A) ERRED IN FOLLOWING THE RATIO LAI D DOWN BY THE HON'BLE HIGH COURT IN THE CASE OF TATA ELXSI LIMITED 349 ITR 98 AND IN DI RECTING THE AO TO EXCLUDE INTERNET CHARGES OF RS . L6,03,232 / - AND TRAVEL EXPENSES INCURRED IN FOREIGN CURRENCY OF RS.35,20,042 / - FROM THE TOTAL TURNOVER ALSO WHILE COMPUTING THE DEDUCTION U/S. 10A OF THE I . T. ACT AS THE DECISION OF THE HIGH COURT IS BINDING , WITHOUT APPRECIATING THE FACT THAT THERE IS NO PROV ISION IN SECTION 1OA THAT SUCH EXPENSES SHOULD BE REDUCED FROM THE TOTAL TURNOVER ALSO , AS CLAUSE (IV) OF THE EXPLANATION TO SECTION 10A PROVIDES THAT SUCH EXPEN SES ARE TO BE REDUCED ONLY 5 IT(TP)A NOS.1008 & 977(B)/14 FROM THE EXPORT TURNOVER. 3. THE CIT(A) ERRED IN NOT APPRECIATING THE FACT THAT THE JURISDICTIONAL HIGH COURT'S DECISION IN THE CASE OF TATA ELXSI LIMITED 349 ITR 98 HAS NOT BEEN ACCEPTED BY THE DEPARTMENT AND AN APPEAL HAS BEEN FILED BEFORE THE HON'BLE SUPREME COURT. 4. THE CIT(A) ERRED IN HOLDING THAT THE TPO SHA LL VERIFY THE CLAIM OF THE ASSESSEE THAT SOME OF THE ASSESSEE'S COMPARABLES SATISF Y THE RPT AND EXPORT EARNINGS FILTERS BUT NEVERTHELESS WERE NOT EXCLUDED FROM THE FINAL SET OF COM PARABLES WITH A FURTHER DIRECTION TO INCLUDE THE COM PARABLE S SATISFYING HIS VERY OWN FILTERS WITHOUT APPRECIATING THAT THE DIRECTIONS OF THE CIT (A) CANNOT BE GIVEN EFFECT TO WITHOUT GIVING AN OPPORTUNITY TO THE ASSESSEE AND W ITHOUT RE - EXAMINING ALL THE COMPARABLES AND THE DIRECTIONS OF THE CIT(A) ARE BE YOND THE POWERS OF THE CIT(A) SUBSEQUENT TO THE AMENDMENT TO THE PROVISION S OF SECTION 251(1)(A) , WITHDRAWING THE POWERS OF SETTING ASIDE. 5. THE CIT(A) ERRED IN DIRECTING THE A O TO COMPUTE THE MARGIN OF BOTH THE ASSESSEE AS WELL AS THE COMPARABLE COMPANIES BY INCLUDING THE FOREIGN EXCHANGE GAINS OR LOSS WITHOUT APPRECIATING THE FACT THAT THE FOREI GN EXCHANGE LOSS OR GAIN THOUGH ATTRIBUTABLE TO OPERATING ACTIVIT Y IS NOT DERIVED B Y THE OPERATING ACTIVIT Y. 6. THE CIT(A) ERRED IN DIRECTING THE AO TO COMPUTE THE MARGIN OF BOTH THE ASSESSEE AS WELL AS THE COMPARABLE COMPANIES BY INCLUDING THE F OREIGN EXCHANGE GAINS OR LOSS WITHOUT APPRECIATING THE FACT THAT OPERATIONAL EXPE NSES ARE THOSE EXPENSES WHICH ARE INCUR R ED TO EARN THAT INCOME AND THAT FOREIGN EXCHANGE LO SS OR GAIN CANNOT BE SAID TO BE ONE DERIVED FROM INTERNATIONAL TRANSACTION THOUGH T HE Y MA Y BE ATTR I BUTABLE TO THE INTERNATIONAL TRANSACTIONS AND THEREFORE THE Y SHOULD BE EXCLUDED WHILE DETERMINING THE OPERATING COST . 6 IT(TP)A NOS.1008 & 977(B)/14 7 . THE CI T (A) ERRED IN NOT APPRECIATING THE FACT THAT IF AN Y FILTER O R C R I TERIA APPLIED B Y THE ASSESSEE IS ACCEPTED OR IF AN Y FILTER OR CRITERIA APPLIED B Y THE TPO IS RELAXED , THE ENTIRE ACCEPT / REJECT MATRIX CHANGES RESULTING IN A NE W SET OF COMPARABLES INCLUDING THOSE COMPARABLES WHICH ARE N EITHER TAKEN B Y THE ASSESSEE OR THE TPO AND WHICH DO NOT FIND A PLACE I N THE ORDER UNDER SECTION 92CA. 8. THE CIT(A) ERRED IN DIRECTING THE AO TO VE RIFY WHETHER THE ASSESSEE / COMPARABLE HAVE BEEN CLAIMING BAD DEBTS OVER THE PAST THREE YE ARS AND THEREAFTER APPLY THE PRINCIPLES EMERGING FROM THE ORDERS OF THE DELHI BE NCH OF THE HON ' BLE TRIBUNAL IN HAWORTH (INDIA) PVT . LTD. V DEPUTY COMMISSIONER OF INCOME-TAX (1 1 ITR (TRIB) 757) AND THE BANGALORE BENCH OF THE HON ' BLE TRIBUNAL IN TRILOG Y E- BUSINESS SOFTWARE V DEPUT Y COMMISSIONER OF INCOME-TAX (23 ITR(TRIB) 464) WITHOUT APPRECIATING THE FACT THAT THE DIRECTIONS I SSUED ARE BE Y OND THE MANDATE OF THE PROVISIONS OF S ~ ION 251 ( 1 )( A ) OF THE L T . ACT WHICH DOES NOT EMPOWER THE CIT(A) TO SET ASIDE E IS SUE. 9 . FOR THESE AND SUCH OTHER GROUNDS THAT MA Y BE URGED AT THE TIME OF HEARING , IT IS HUMBL Y PRAYED THAT THE ORDER OF THE CIT(A) BE REVERSED AND THAT OF THE ASSESSING OFFICER BE RESTORED . 10.THE APPELLANT CRA V ES LEAVE TO ADD , TO ALTER , TO AMEND OR DELETE AN Y OF THE GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING OF THE APPEAL. . 5. FIRST WE TAKE UP THE REVENUES APPEAL. REGARDING GROUND NO.1,2 & 3, IT WAS AGREED BY BOTH SIDES THAT THESE ISSUES ARE C OVERED IN FAVOUR OF THE ASSESSEE BY THE JUDGMENT OF THE HONBLE KARNATAKA H IGH COURT RENDERED IN THE CASE OF M/S TATA ELXI LTD., 349 ITR 98(KAR.). IN THIS CASE, IT WAS HELD BY THE HONBLE KARNATAKA HIGH COURT THAT THE TOTAL TURNOVER IS SUM TOTAL OF 7 IT(TP)A NOS.1008 & 977(B)/14 EXPORT TURNOVER AND DOMESTIC TURNOVER AND THEREFORE , IF ANY AMOUNT IS REDUCED FROM THE EXPORT TURNOVER, THE TOTAL TURNOV ER IS ALSO TO BE REDUCED BY THE SAME AMOUNT AS A CONSEQUENCE THEREOF. UNDER TH ESE FACTS, WE FIND NO REASON TO INTERFERE IN THE ORDER OF THE LD. CIT(A) ON THIS ISSUE. 6. GROUND NO.1 TO 3 OF THE REVENUE ARE REJECTED. 7. REGARDING GROUND NO. 4 TO 8 OF THE REVENUES APP EAL, IT WAS SUBMITTED BY THE LD. DR OF THE REVENUE THAT HE LD.C IT(A) HAS NO POWER TO RESTORE THE MATTER BACK TO THE FILE OF THE AO AND T HEREFORE, THE ORDER OF THE LD. CIT(A) IS NOT SUSTAINABLE. AS AGAINST THIS, IT WAS SUBMITTED BY THE LD.AR OF THE ASSESSEE THAT IF CONSIDERED PROPER, THESE IS SUES MAY BE RESTORED BACK TO THE FILE OF THE AO BY THE TRIBUNAL. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND FORCE IN THE SUBMISSIONS OF THE LD. DR OF THE REVENUE THAT THE L D. CIT(A) HAS NO POWER TO RESTORE THE MATTER BACK TO THE FILE OF THE AO AND I NSTEAD OF RESTORING THE MATTER BACK TO THE FILE OF THE AO, HE SHOULD HAVE D ECIDED THE ISSUE HIMSELF AFTER OBTAINING REMAND REPORT FROM THE AO IF REQUIR ED. BUT CONSIDERING THIS FACT THAT MORE THAN TWO YEARS HAVE ALREADY LAPSED B Y THIS TIME AND THE AO MIGHT HAVE GIVEN EFFECT TO THE ORDER OF THE LD. CIT (A), WE FEEL IT PROPER THAT 8 IT(TP)A NOS.1008 & 977(B)/14 INSTEAD OF RESTORING THIS MATTER BACK TO THE FILE O F LD. CIT(A) FOR DECIDING THE ISSUES AFRESH AFTER OBTAINING REMAND REPORT FROM TH E AO, IT IS BETTER TO RESTORE THIS MATTER BACK TO THE FILE OF THE AO FOR FRESH DECISION AFTER PROVIDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. WE ORDER ACCORDINGLY. 9. GROUND NO.4 TO 8 ARE ALLOWED FOR STATISTICAL PUR POSES. 10. GROUND NO.9 & 10 ARE GENERAL AND THEY DO NOT REQUIRE ANY SPECIFIC ADJUDICATION. 11. REGARDING ASSESSEES APPEAL, IT WAS SUBM ITTED BY THE LD.AR OF THE ASSESSEE THAT GROUND NO.1 IS GENERAL AND IN RESPECT OF GROUND NO.2 TO 13, IT WAS SUBMITTED BY HIM THAT THESE ARE IN RESPECT OF T RANSFER PRICING (TP) ISSUES. HE SUBMITTED A CHART AS PER WHICH THE ASSE SSEE IS REQUESTING FOR EXCLUSION OF CERTAIN COMPARABLES AS NOTED HEREUNDER ; SL. NO . NAME OF THE CO . PLI %AGE BASIS FOR SEEKING EXCLUSION. 1 M/S KALS INFORMATION SYSTEMS LTD., 13.89 FUNCTIONAL DISSIMILARITY 2. M/S BODHTREE CONSULTING LTD., 62.27 3. M/ TATA ELXSI LTD., 20.28 4. M/S PERSISTENT SYSTEMS LTD., 41.40 5. M/S INFOSYS TECH. LTD., 45.61 9 IT(TP)A NOS.1008 & 977(B)/14 IN ADDITION TO THIS, THE ASSESSEE HAS ALSO REQUEST ED IN THE CHART FOR CONSIDERATION OF CORRECT OPERATING MARGIN IN THE CA SE OF M/S SAKAEN COMMUNICATION TECH LTD., AND M/S LARSEN & TOUBRO IN FOTECH LTD. 12. REGARDING THE FIRST ASPECT I.E. EXCLUSION OF S OME COMPARABLES ON THE BASIS OF FUNCTIONAL DISSIMILARITY WE DEAL THIS ISSUE COMPANY WISE AS UNDER; 1) M/S KALS INFORMATION SYSTEMS LTD. , FOR EXCLUSION OF THIS COMPANY, RELIANCE HAS BEEN PLACED ON THE TRIBUNAL O RDER RENDERED IN THE CASE OF M/S ONWARD TECHNOLOGIES LTD., VS DCIT AS R EPORTED IN 26 ITR (TRIB) 734(ITAT, MUM.). IT WAS POINTED OUT THAT COPY OF TH E JUDGMENT IS AVAILABLE ON PAGES 1 TO 19 OF THE CASE LAW COMPENDIUM AND OUR ATTENTION WAS DRAWN TO PARA NO.23 OF THIS TRIBUNAL ORDER. LD. DR OF THE REVENUE SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. 13. WE HAVE CONSIDERED RIVAL SUBMISSIONS. WE FIND T HAT IN PARA-23 OF THIS TRIBUNAL ORDER, CITED BY THE LD.AR OF THE ASSE SSEE I.E. IN THE CASE M/S ONWARD TECHNOLOGIES LTD., VS DCIT (SUPRA), IT IS NO TED BY THE TRIBUNAL THAT THIS COMPANY I.E. M/S KALS INFORMATION SYSTEMS LTD. , FUNCTIONS IN THE FIELD OF CONSULTANCY, INFORMATION PROVIDER AND GENERAL IN SURANCE SECTOR. IN THE PRESENT CASE, THE ASSESSEE COMPANY IS PROVIDING SOF TWARE DEVELOPMENT 10 IT(TP)A NOS.1008 & 977(B)/14 SERVICES TO ITS AE WHO IS ENGAGED IN BUSINESS OF SO FTWARE PRODUCTS AS WELL AS OF OPTICAL NET WORKING EQUIPMENT TO TELECOMMUNICATI ON PROVIDER AND THEREFORE, IT HAS TO BE ACCEPTED THAT THERE IS FUNC TIONAL DISSIMILARITY BECAUSE, THE ASSESSEE IS NOT ENGAGED IN GENERAL INSURANCE SE CTOR AS KALS INFORMATION SYSTEM. IN THE SAME CHART, THE ASSESSEE ALSO PLACE D RELIANCE ON THE TRIBUNAL ORDER RENDERED IN THE CASE OF M/S CISCO SYSTEMS (IN D.) PVT.LTD., IN IT(TP)A NO.271(BANG/2014. COPY OF THE ORDER IS AVAILABLE ON PAGES 82 TO 142 OF CASE LAW COMPENDIUM. IN PARTICULAR, OUR ATTENTION WAS DRAWN TO PARA-26.3 OF THE ORDER ON PAGES 101 TO 103. IN THIS CASE, TH E TRIBUNAL HAS FOLLOWED ANOTHER TRIBUNAL ORDER RENDERED IN THE CASE OF M/S TRILOGY E-BUSINESS SOFTWARE INDIA PVT. LTD., I ITA NO.1054(BANG)/2011. COPY AVAILABLE ON PAGES 20 TO 81 OF THE PAPER BOOK. 14. THE LD. DR OF THE REVENUE COULD NOT POINT OUT A NY DIFFERENCE IN FACTS IN THE PRESENT CASE AND IN THESE CASES OF THE TRIBUNAL ORDERS AND THEREFORE, RESPECTFULLY FOLLOWING THESE TRIBUNAL OR DERS, WE DIRECT THE AO/TPO TO EXCLUDE THESE COMPANIES FROM THE FINAL LIST OF C OMPARABLES. 2) M/S BODHTREE CONSULTING LTD. , FOR EXCLUSION OF THIS COMPANY ALSO, RELIANCE HAS BEEN PLACED ON THE SAME TRIBUNAL ORDER RENDERED IN THE CASE OF M/S CISCO SYSTEMS (IND.) PVT.LTD.,(SUPRA) AND IN PA RTICULAR, OUR ATTENTION 11 IT(TP)A NOS.1008 & 977(B)/14 WAS DRAWN TO PARA-26.1 AVAILABLE ON PAGE NO.98 TO 9 9 OF CASE LAW COMPENDIUM. IN THIS CASE, IT IS NOTED BY THE TRIBU NAL THAT THIS COMPANY IS IN THE BUSINESS OF SOFTWARE PRODUCT AND WAS ENGAGED IN PROVIDING OPEN AND END TO END WEB SOLUTIONS SOFTWARE CONSULTANCY AND D ESIGN AND DEVELOPMENT OF SOFTWARE USING LATEST TECHNOLOGY AND THEREFORE, THE SAME CANNOT BE CONSIDERED AS A COMPARABLE IN THE CASE OF COMPANIES RENDERING SOFTWARE DEVELOPMENT SERVICES, AS IN THE PRESENT CASE. THERE FORE, BY RESPECTFULLY FOLLOWING THIS TRIBUNAL ORDER, WE HOLD THAT THIS CO MPANY IS ALSO EXCLUDED FROM THE LIST OF FINAL COMPARABLES. 3. M/S TATA ELXSI LTD. , FOR EXCLUSION OF THIS COMPANY ALSO, RELIANCE HAS BEEN PLACED ON THE SAME TRIBUNAL ORDER RENDERED IN THE CASE OF M/S CISCO SYSTEMS (IND.) PVT.LTD.,(SUPRA) AND OUR ATTEN TION WAS DRAWN TO PARA- 26.4 TO 26.5 OF THE ORDER AVAILABLE ON PAGES 103 TO 105 OF THE CASE LAW COMPENDIUM. FOR THE SAKE OF READY REFERENCE THESE PARAS ARE REPRODUCED HEREUNDER; 26.4 TATA ELXSI LTD. :- AS FAR AS THIS COMPANY IS CONCERNED, IT IS NOT IN DISPUTE BEFORE US THAT IN ASSESSEES OWN CAS E FOR THE A.Y. 2007-08, THIS COMPANY WAS NOT REGARDED AS A COMPARABLE IN IT S SOFTWARE DEVELOPMENT SERVICES SEGMENT IN ITA NO.1076/BANG/2011, ORDER DATED 29.3.2013 . FOLLOWING WERE THE RELEVANT OBSERVATIONS OF THE TRI BUNAL:- II. UNREASONABLE COMPARABILITY CRITERIA : 12 IT(TP)A NOS.1008 & 977(B)/14 19. THE LEARNED CHARTERED ACCOUNTANT PLEADED THAT O UT OF THE SIX COMPARABLES SHORTLISTED ABOVE AS COMPARABLES BASED ON THE TURNOVER FILTER, THE FOLLOWING TWO COMPANIES, NAMELY (I) TAT A ELXSI LTD; AND (II) M/S. FLEXTRONICS SOFTWARE SYSTEMS LTD., DESERVE TO BE ELIMINATED FOR THE FOLLOWING REASONS : (I) TATA ELXSI LTD., : THE COMPANY OPERATES IN THE SEGMENTS OF SOFTWARE DEVELOPMENT SERVICES WHICH COMPRISES OF EMBEDDED PR ODUCT DESIGN SERVICES, INDUSTRIAL DESIGN AND ENGINEERING SERVICE S AND VISUAL COMPUTING LABS AND SYSTEM INTEGRATION SERVICES SEGMENT. THERE IS NO SUB-SERVICES BREAK UP/INFORMATION PROVIDED IN THE ANNUAL REPORT OR THE DATABASES BASED ON WHICH THE MARGIN FROM SOFTWARE SERVICES AC TIVITY ONLY COULD BE COMPUTED. THE COMPANY HAS ALSO IN ITS RESPONSE TO T HE NOTICE U/S.133(6) STATED THAT IT CANNOT BE CONSIDERED AS COMPARABLE T O ANY OTHER SOFTWARE SERVICES COMPANY BECAUSE OF ITS COMPLEX NATURE. HEN CE, TATA ELXSI LTD., IS TO BE EXCLUDED FROM THE LIST OF COMPARABLES. (II) FLEXTRONICS SOFTWARE SYSTEMS LTD. : THE LEARN ED TPO HAS CONSIDERED THIS COMPANY AS A COMPARABLE BASED ON 13 3(6) REPLY WHEREIN THIS COMPANY REFLECTED ITS SOFTWARE DEVELOPMENT SER VICES REVENUES TO BE MORE THAN 75% OF THE 'SOFTWARE PRODUCTS AND SERVICE S' SEGMENT REVENUES. FLEXTRONICS HAS A HYBRID REVENUE MODEL AND HENCE SH OULD BE REJECTED AS FUNCTIONALLY DIFFERENT. BASED ON THE INFORMATION PR OVIDED UNDER 'REVENUE RECOGNITION' IN ITS ANNUAL REPORT, IT CAN BE INFERR ED THAT THE SOFTWARE SERVICES REVENUES ARE EARNED ON A HYBRID REVENUE MO DEL, AND THE SAME IS NOT SIMILAR TO THE REGULAR MODELS ADOPTED BY OTHER SOFTWARE SERVICE 13 IT(TP)A NOS.1008 & 977(B)/14 PROVIDERS. THE LEARNED REPRESENTATIVE PLEADED THAT A REGULAR SOFTWARE SERVICES PROVIDER COULD NOT BE COMPARED TO A COMPAN Y HAVING SUCH A UNIQUE REVENUE MODEL, WHEREIN THE REVENUES OF THE C OMPANY FROM SOFTWARE/PRODUCT DEVELOPMENT SERVICES DEPENDS ON TH E SUCCESS OF THE PRODUCTS SOLD BY ITS CLIENTS IN THE MARKETPLACE. HE NCE, IT WOULD BE INAPPROPRIATE TO COMPARE THE BUSINESS OPERATIONS OF THE ASSESSEE WITH THAT OF A COMPANY FOLLOWING HYBRID BUSINESS MODEL COMPRI SING OF ROYALTY INCOME AS WELL AS REGULAR SOFTWARE SERVICES INCOME, FOR WHICH REVENUE BREAK-UP IS NOT AVAILABLE. HE FINALLY SUBMITTED THA T THIS WAS A GOOD REASON TO EXCLUDE THIS COMPANY ALSO FROM THE LIST OF COMPA RABLES. 20. ON THE OTHER HAND, THE LEARNED DR SUPPORTED THE ORDER OF THE LOWER AUTHORITIES REGARDING THE INCLUSION OF TATA E LXSI AND FLEXTRONICS SOFTWARE SYSTEMS LTD., IN THE LIST OF COMPARABLES. HE REITERATED THE CONTENTS OF PARA 14.2.25 OF THE TPO'S ORDER. HE ALS O READ OUT THE FOLLOWING PORTION FROM THE TPO'S ORDER : 'THUS AS STATED ABOVE BY THE COMPANY, THE FOLLOWING FACTS EMERGE : 1. THE COMPANY'S SOFTWARE DEVELOPMENT AND SERVICES SEGMENT CONSTITUTES THREE SUB-SEGMENTS I) PRODUCT DESIGN SE RVICES; II) ENGINEERING DESIGN SERVICES AND III) VISUAL COMPUTI NG LABS. 2. THE PRODUCT DESIGN SERVICES SUB-SEGMENT IS INTO EMBEDDED SOFTWARE DEVELOPMENT. THUS THIS SEGMENT IS INTO SOF TWARE DEVELOPMENT SERVICES. 14 IT(TP)A NOS.1008 & 977(B)/14 3. THE CONTRIBUTION OF THE EMBEDDED SERVICES SEGMEN T IS TO THE TUNE OF RS.230 CRORES IN THE TOTAL SEGMENT REVENUE OF RS.263 CRORES. EVEN IF WE CONSIDER THE OTHER TWO SUB-SEGMENTS PERT AIN TO IT ENABLED SERVICES, THE 87.45% (75%) OF THE SEGMENT' S REVENUES IS FROM SOFTWARE DEVELOPMENT SERVICES. 4. THIS SEGMENT QUALIFIES ALL THE FILTERS APPLIED B Y THE TPO.' REGARDING FLEXTRONICS SOFTWARE SYSTEMS, THE FOLLOWI NG EXTRACT FROM PAGE 143 OF TPO'S ORDER WAS READ OUT BY HIM AS HIS SUBMI SSIONS : 'IT IS VERY PERTINENT TO MENTION HERE THAT THE COMP ANY WAS CONSIDERED BY THE TAXPAYER AS A COMPARABLE FOR THE PRECEDING ASSESSMENT YEAR I.E., AY 2006-07. WHEN THE SAME WAS ACCEPTED BY THE TPO AS A COMPARABLE, THE SAME WAS NOT OBJECTED TO IT BY THE TAXPAYER. AS THE FACTS MENTIONED BY THE TAXPAYER AR E THE SAME AND THESE WERE THERE IN THE EARLIER FY 2005-06, THERE I S NO REASON WHY THE TAXPAYER IS OBJECTING TO IT. HOW THE COMPANY IS FUNCTIONALLY SIMILAR IN THE EARLIER FY 2005-06 BUT THE SAME IS N OT FUNCTIONALLY SIMILAR FOR THE SUBSEQUENT FY 2006-07 EVEN WHEN NO FACTS HAVE BEEN CHANGED FROM THE PRECEDING YEAR. THUS THE TAXPAYER IS ARGUING AGAINST THIS COMPARABLE AS THE COMPANY WAS NOT CONS IDERED AS A COMPARABLE BY THE TAXPAYER FOR THE PRESENT FY 2006- 07.' 21.WE HAVE HEARD THE RIVAL SUBMISSIONS AND CONSIDER ED THE FACTS AND MATERIALS ON RECORD. AFTER CONSIDERING THE SUBM ISSIONS, WE FIND THAT TATA ELXSI AND FLEXTRONICS ARE FUNCTIONALLY DIFFERE NT FROM THAT OF THE ASSESSEE AND HENCE THEY DESERVE TO BE DELETED FROM THE LIST OF SIX 15 IT(TP)A NOS.1008 & 977(B)/14 COMPARABLES AND HENCE THERE REMAINS ONLY FOUR COMPA NIES AS COMPARABLES, AS LISTED BELOW: 26.5. FOLLOWING THE AFORESAID DECISION OF THE TRIB UNAL, WE HOLD THAT M/S.TATA ELXSI LTD. SHOULD NOT BE REGARDED AS A COM PARABLE. 15. SINCE LD. DR OF THE REVENUE COULD NOT POINT OUT ANY DIFFERENCE IN FACTS, RESPECTFULLY FOLLOWING THESE TRIBUNAL ORDERS , WE DIRECT THE AO/TPO TO EXCLUDE THIS COMPANY ALSO FROM THE LIST OF FINAL CO MPARABLES. 4. PERSISTENT SYSTEMS LTD., FOR EXCLUSION OF THIS COMPANY, RELIANCE HAS BEEN PLACED ON THE TRIBUNAL ORDER RENDERED IN THE CASE OF M/S UNISYS INDIA PVT.LTD., IN IT(TP)A NO.67(BANG)/2015, COPY A VAILABLE ON PAGES 210 TO 246 OF CASE LAW COMPENDIUM AND IN PARTICULAR, OUR A TTENTION WAS DRAWN TO PARA 36 TO 37 OF THE TRIBUNAL ORDER. THESE PARAS AR E REPRODUCED AS UNDER:- 36. AS FAR AS PERSISTENT SYSTEMS LTD. A COMPARABL E BY THE ASSESSEE IN HIS TP STUDY BUT WAS OBJECTED BY THE AS SESSEE BEFORE THE TPO AS NOT COMPARABLE, THIS TRIBUNAL IN THE CASE OF IT(TP)A NO.108(BANG)/21014 ORDER DATED 12-12-2014 I N THE CASE OF YODLEE INFOTECH PVT. LTD. VS ITO HELD AS F OLLOWS: 5.12 THIS TRIBUNAL IN THE CASE OF 3DPLM SOFT WARE SOLUTIONS LTD., VS DCIT (IT(TP)A NO. 1303(BANG)/2012 DATED 2 8-11-2013) HAS ALSO HELD THAT PERSISTENT SYSTEMS PVT.LTD., WAS IN PRODUCT DE SIGNING SERVICES AND INTO 16 IT(TP)A NOS.1008 & 977(B)/14 SOFTWARE PRODUCT DEVELOPMENT. IN THE SAME DECISIO N IT WAS ALSO HELD THAT M/S INFOSYS TECHNOLOGIES LTD., HAD CONSIDERABLE INT ANGIBLES LIKE IPR, AND WAS ALSO INTO SOFTWARE PRODUCT DEVELOPMENT. IT WAS AL SO HELD THAT M/S TATA ELXSI LTD., WAS DEVELOPING NICHE PRODUCTS AND INTO PRODUC T DESIGNING SERVICES. HENCE, THESE COMPANIES WOULD IN ANY CASE HAVE TO BE EXCLUDED FROM THE COMPARABLES BEING FUNCTIONALLY DIFFERENT. 37. FOLLOWING THE SAID DECISION, WE DIRECT THAT PER SISTENT SYSTEMS LTD., BE EXCLUDED FROM THE FINAL LIST OF CO MPARABLE COMPANIES CHOSEN BY THE TPO. THE LD. DR OF THE REVENUE SUPPORTED THE ORDERS OF T HE AUTHORITIES BELOW; 16. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT IN THIS CASE, THE TRIBUNAL HAS FOLLOWE D ANOTHER TRIBUNAL ORDER RENDERED IN THE CASE OF M/S YODLEE INFOTECH LTD., V S ITO IN IT(TP)A NO.108(BANG)/2014. THE RELEVANT PORTION OF THAT TR IBUNAL ORDER IS RE- PRODUCED ABOVE AND AS PER THE SAME, THIS COMPANY I. E. M/S PERSISTENT SYSTEMS LTD., WAS IN PRODUCT DESIGNING SERVICES AND INTO SOFTWARE PRODUCT DEVELOPMENT. SINCE THE PRESENT ASSESSEE COMPANY IS ONLY PROVIDING SOFTWARE DEVELOPMENT SERVICES TO THE AE, THIS COMPANY CANNOT BE CONSIDERED AS A COMPARABLE IN THE PRESENT CASE. SINCE THE LD. DR OF THE REVENUE COULD NOT POINT OUT ANY DIFFERENCE IN FACTS, BY RESPECTFULLY FOLLOWING THIS TRIBUNAL ORDER, WE DIRECT THE AO/TPO FOR EXCLUSION OF THIS C OMPANY FROM THE FINAL LIST OF COMPARABLE. 17 IT(TP)A NOS.1008 & 977(B)/14 5. M/S INFOSYS TECHNOLOGIES LTD., FOR EXCLUSION OF THIS COMPANY, RELIANCE HAS BEEN PLACED ON THE JUDGMENT OF THE HON BLE DELHI HIGH COURT RENDERED IN THE CASE OF M/S AGINITY INDIA TECHNOLOG IES PVT.LTD., IN ITA NO.1204/2011 DATED 10-07-2013 AND IN PARTICULAR, OU R ATTENTION WAS DRAWN TO PARA-6 OF THE JUDGMENT AS AVAILABLE INPAGE-386 O F THE CASE LAW COMPENDIUM AND THE SAME IS REPRODUCED HEREUNDER:- 6. LEARNED COUNSEL FOR THE REVENUE HAS SUBMITTED THAT THE TRIBUNAL AFTER RECORDING THE AFORESAID TABLE HA S NOT AFFIRMED OR GIVEN ANY FINDING ON THE DIFFERENCES. T HIS IS PARTLY CORRECT AS THE TRIBUNAL HAS STATED HAT INFOS YS TECHNOLOGIES LTD., SHOULD BE EXCLUDE FROM THE LIST OF COMPARABLES FOR THE REASON LATTER WAS GIANT COMPANY IN THE AREA OF DEVELOPMENT OF SOFTWARE AND IT ASSUMED ALL RISKS LEADING TO HIGHER PROFITS, WHEREAS THE RESPONDENT A SSESSEE WAS A CAPTIVE UNIT OF THE PARENT COMPANY AND ASSUME D ONLY A LIMITED RISK. IT HAS ALSO STATED THAT INFOS YS TECHNOLOGIES LTD. CANNOT BE COMPARED WITH THE RESPO NDENT- ASSESSEE AS SEEN FROM THE FINANCIAL DATA ETC. TO TH E TWO COMPANIES MENTIONED EARLIER IN THE ORDER I.E. THE C HART. IN THE GROUNDS OF APPEAL THE REVENUE HAS NOT BEEN ABLE TO CONTROVERT OR DENY THE DATA AND DIFFERENCES MENTION ED IN THE TABULATED FORM. THE CHART HAS NOT BEEN CONTROV ERTED. 18 IT(TP)A NOS.1008 & 977(B)/14 17. FROM THE ABOVE PARA OF THE JUDGMENT OF THE HON BLE DELHI HIGH COURT, IT IS SEEN THAT THIS COMPANY IS A GIANT COMP ANY IN THE AREA OF SOFTWARE AND IT ASSUMED ALL RISKS LEADING TO HIGHER PROFITS, WHEREAS THE ASSESSEE COMPANY WAS A CAPTIVE UNIT OF THE PARENT C OMPANY AND ASSUMED ONLY A LIMITED RISK. IN THE PRESENT CASE ALSO, THE ASSESSEE COMPANY IS PROVIDING SERVICES TO THE PARENT COMPANY AND THEREF ORE, ASSUMING ONLY LIMITED RISK AND HENCE, RESPECTFULLY FOLLOWING THIS JUDGMENT OF THE HONBLE DELHI HIGH COURT, WE DIRECT THE AO/TPO TO EXCLUDE T HIS COMPANY ALSO FROM THE LIST OF FINAL COMPARABLES. AS PER THE TPOS OR DER ANNEXURE-B, 11 COMPANIES HAVE BEEN CONSIDERED AS FINAL COMPARABLES WITH ARMS LENGTH MEAN MARGIN OF 24.32%. AS PER THE ABOVE DISCUSSIO N, WE HAVE HELD THAT 5 COMPANIES SHOULD BE EXCLUDED FROM THE LIST OF FINAL COMPARABLES. I.E. 1 M/S KALS INFORMATION SYSTEMS LTD., 2. M/S BODHTREE CONSULTING LTD., 3. M/ TATA ELXSI LTD., 4. M/S PERSISTENT SYSTEMS LTD., 5. M/S INFOSYS TECH. LTD., 18. THE MEAN MARGIN OF THESE 5 COMPANIES IS 36.69. AFTER EXCLUSION OF THESE 5 COMPANIES, ARITHMETIC MEAN OF THE REMAIN ING 6 COMPANIES 19 IT(TP)A NOS.1008 & 977(B)/14 (COMPARABLES) WILL BE ONLY 14.02% AS AGAINST PLI OF THE TESTED PARTY I.E. THE ASSESSEE COMPANY 17.63% AND AS A RESULT NO, TP ADJU STMENT IS CALLED FOR AFTER EXCLUSION OF THESE 5 COMPARABLES AND THEREFOR E, WE DO NOT GO INTO THE CLAIM OF THE ASSESSEE REGARDING ADOPTION OF CORRECT OPERATING PROFIT OF TWO COMPANIES I.E. M/S SASKEN COMMUNICATION AND M/S LAR SEN & TOUBRO LTD., BECAUSE THE SAME IS OF ACADEMIC INTEREST ONLY. 19. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. 20. IN THE COMBINED RESULT, THE REVENUES APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSES WHEREAS THE APPEAL OF THE ASSE SSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. (VIJAYPAL RAO) (A.K.GARODIA) JUDICIAL MEMER ACCOUNTANT MEMBER BANGALORE: D A T E D : -06-2016 AM 20 IT(TP)A NOS.1008 & 977(B)/14 COPY TO : 1 APPELLANT 2 RESPONDENT 3. CIT(A), BANGALORE 4. CIT, BANGALORE 5. DR, ITAT, BANGALORE 6. GUARD FILE BY ORDER AR, ITAT, BANGALORE 1. DATE OF DICTATION .. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P. S. .. 4 DATE ON WHICH THE ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT .. 5. DATE ON WHICH THE ORDER COMES BACK TO THE SR. P.S. .. 6. DATE OF UPLOADING THE ORDER ON WEBSITE .. 7. IF NOT UPLOADED, FURNISH THE REASON FOR DOING SO . 8. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 9. DATE ON WHICH ORDER DOES FOR XEROX & ENDORSEMENT . 10. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK. 11 THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER. 12 THE DATE ON WHICH THE FILE GOES TO THE DISPATCH SEC TION FOR DISPATCH OF THE TRIBUNAL ORDER 13 DATE OF DISPATCH OF ORDER