Nokia Solutions and Networks India (P) Ltd, Gurgaon V. Addl. Commissioner of Income-tax, New Delhi

ITA 1013/DEL/2015

• Counselvise Citation: [2019] 113 COUNSELVISE.COM (IT) 6413 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 9 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-11-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: I2
• Next Hearing Date: 24-07-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 19-02-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SANJAY I BARA
• Keywords: Depreciation; Transfer pricing; Business expenditure; Opportunity of being heard; International transaction; TDS; Set aside
• Section: 143(3); 201; 32

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI I-1 B ENCH, NEW DELHI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER, AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO. 1013/DEL/2015 [A.Y 2010-11] NOKIA SOLUTIONS AND NETWORKS INDIA PVT LTD VS. TH E ADDL.CIT. 7 TH FLOOR, BUILDING NO. 9A RANGE 18 DLF CYBER CITY, SECTOR 25A NEW DELHI GURGAON - HARYANA PAN NO: AACCN 3871 F [APPELLANT] [RESPONDENT] DATE OF HEARING : 19.11.2019 DATE OF PRONOUNCEMENT : 21 .11.2019 ASSESSEE BY : SHRI DEEPAK CHOPRA, ADV SHRI AMIT SRIVASTAVA, ADV SHRI ANKUL GOYAL, ADV REVENUE BY : SHRI SANJAY I BARA, CIT-DR ORDER PER N.K. BILLAIYA, AM:- THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER DATED 29.01.2015 FRAMED U/S 143(3) R.W.S 144C(13) OF THE INCOME-TAX ACT, 2 1961 [HEREINAFTER REFERRED TO AS 'THE ACT' FOR SHOR T] PERTAINING TO ASSESSMENT YEAR 2010-11. BUSINESS PROFILE OF THE APPELLANT COMPANY 2. THE APPELLANT COMPANY ENGAGED IN THE BUSINESS OF MANUFACTURING AND TRADING OF TELECOMMUNICATION NETWORK EQUIPMENT AND PROVISION OF RELATED SERVICES SUCH AS NETWORK DESIGN, INSTALLATI ON AND COMMISSIONING. THE COMPANY ALSO PROVIDED SUPPORT SE RVICES TO MAJOR TELECOM OPERATORS AND IP SERVICE PROVIDERS IN INDIA AND TO CUSTOMERS OF ITS ASSOCIATED ENTERPRISES (AES). 3. THE APPELLANT COMPANY ALSO PROVIDES SOFTWARE DEV ELOPMENT AND CERTAIN NETWORK MANAGEMENT SUPPORT SERVICES. FURTHE R, NSN INDIA RENDERED CERTAIN MARKETING SUPPORT SERVICES TO ITS AES. WITH THIS BACKGROUND OF THE APPELLANTS BUSINESS PROFILE, LET US NOW CONSIDER THE GRIEVANCES OF THE ASSESSEE. 4. GROUND NO. 1 IS GENERAL IN NATURE AND NEEDS NO A DJUDICATION. 5. GROUND NO. 2 RELATES TO THE ADDITION ON ACCOUNT OF UNEARNED REVENUE AMOUNTING TO RS. 1,02,88,91,000/-. 3 6. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ON PERUSAL OF SCHEDULE 11 OF THE BALANCE SHEET, THE ASSESSING OFF ICER NOTICED THAT THE ASSESSEE HAS SHOWN AN AMOUNT OF RS. 1,02,88,91, 000/- AS UNEARNED REVENUE. THE ASSESSEE WAS ASKED TO GIVE DETAILS OF THE SAME AND THE TREATMENT GIVEN TO IT IN THE COMPUTATION OF INCOME. 7. IN ITS REPLY, THE ASSESSEE STATED THAT SINCE IT IS ENGAGED IN THE BUSINESS OF INSTALLATION AND COMMISSIONING OF TELEC OM EQUIPMENT, IT HAS TO MAINTAIN ITS ACCOUNTS AS PER ACCOUNTING STAN DARD-7 WHICH MANDATES THAT FOR THE PURPOSES OF RECOGNITION OF RE VENUE, THE ASSESSEE HAS TO FOLLOW PERCENTAGE OF COMPLETION METHOD. THE ASSESSEE FURTHER EXPLAINED THAT EVEN IF THE BILLING MILESTONE HAS BE EN REACHED AS PER THE CUSTOMER AGREEMENTS BUT REVENUE CANNOT BE RECOG NIZED AS PER AS - 7. IT WAS EXPLAINED THAT THE UNEARNED REVENUE REPR ESENTS THE AMOUNT INVOICED TO THE CUSTOMERS AS PER THE TERMS OF AGREE MENT BUT THE SAME HAS NOT ACCRUED IN THE BOOKS OF ACCOUNT OF THE ASSE SSEE. UNEARNED REVENUE IS ACCRUED IN THE FINANCIALS IN SUCCEEDING YEARS AS PER THE METHOD OF ACCOUNTING FOLLOWED BY THE APPELLANT AND THE SAME HAS BEEN OFFERED TO TAX IN THE YEAR IN WHICH IT IS ACCR UED. 8. REPLY OF THE ASSESSEE DID NOT FIND ANY FAVOUR WI TH THE ASSESSING OFFICER WHO WAS OF THE FIRM BELIEF THAT ACCOUNTING STANDARD CANNOT 4 OVERRIDE THE PROVISIONS OF INCOME TAX ACT AND SINCE THE INCOME IS DUE TO ACCRUE TO THE ASSESSEE AS PER THE PROVISIONS OF SECTION 5 OF THE ACT, ONCE THE INVOICES HAVE BEEN RAISED, THE SAME HAVE T O BE ACCOUNTED FOR AS INCOME IN THE YEAR IN WHICH THE INVOICES HAVE BE EN RAISED. ACCORDINGLY, DRAWING SUPPORT FROM THE DECISION OF T HE HON'BLE APEX COURT IN THE CASE OF TUTICORN ALKALI CHEMICALS & FE RTILIZERS LTD 227 ITR 172, THE ASSESSING OFFICER MADE AN ADDITION OF RS. 1,02,88,91,000/-. 9. THE ASSESSEE RAISED OBJECTIONS BEFORE THE DRP BU T WITHOUT ANY SUCCESS. 10. WHILE CONFIRMING THE ADDITIONS MADE BY THE ASSE SSING OFFICER, THE DRP OBSERVED THAT INCOME IS LIABLE TO BE TAXED ON THE BASIS OF ITS ACCRUING OR ARISING TO THE ASSESSEE OR ITS RECEIPTS BY THE ASSESSEE DURING THE RELEVANT PREVIOUS YEAR. THE DRP FURTHER OBSERVED THAT ACCRUAL OR ARISING OF INCOME IS GENERALLY DEPENDENT ON THE METHOD OF ACCOUNTING EMPLOYED BY THE ASSESSEE AND SINCE THE A SSESSEE IS FOLLOWING THE MERCANTILE SYSTEM OF ACCOUNTING, THE ASSESSING OFFICER WAS RIGHT IN TAXING THE RECEIPT DURING THE YEAR UND ER CONSIDERATION. 11. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE VEH EMENTLY STATED THAT THE DETERMINATIVE FACTOR FOR ACCRUAL OF INCOME IS N OT RAISING INVOICE, RATHER RENDERING OF SERVICES FOR WHICH THE INVOICE HAS BEEN RAISED. IT IS 5 THE SAY OF THE LD. COUNSEL FOR THE ASSESSEE THAT IS IS ONLY WHEN THE CORRESPONDING SERVICES HAVE BEEN RENDERED THAT A RI GHT ACCRUES TO THE ASSESSEE AND INCOME IS OFFERED TO TAX IN THE YEAR O F RENDERING OF SERVICES. THE LD. COUNSEL FOR THE ASSESSEE FURTHER STATED THAT PROPORTIONATE REVENUE IS RECOGNIZED DURING THE YEAR IN WHICH THE INVOICE IS RAISED AND THE BALANCE IS RECOGNIZED AS AND WHEN THE SERVICES ARE RENDERED BY THE ASSESSEE. 12. IN SUPPORT OF HIS CONTENTION, THE LD. COUNSEL F OR THE ASSESSEE PLACED RELIANCE ON THE DECISION OF THE HON'BLE SUPR EME COURT IN THE CASE OF KESHAV MILLS 23 ITR 230 AND SASSON & CO. 26 ITR 27 AND THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CAS E OF DINESH KUMAR GOYAL 331 ITR 10. 13. PER CONTRA, THE LD. DR STRONGLY SUPPORTED THE F INDINGS OF THE ASSESSING OFFICER AND READ THE RELEVANT PORTION OF THE ASSESSMENT ORDER AND ALSO THAT OF THE ORDER OF THE DRP. 14. WE HAVE GIVEN THOUGHTFUL CONSIDERATION TO THE O RDERS OF THE AUTHORITIES BELOW AND HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS. IT IS TRUE THAT UNDER THE HEAD CURRENT LIABILITIES , THE ASSESSEE HAS SHOWN UNEARNED REVENUE OF RS. 10,28,891/-. IT IS A LSO TRUE THAT AS ON 31.03.2009, THE IMMEDIATELY PRECEDING F.Y., UNEARNE D REVENUE HAS 6 BEEN SHOWN AT RS. 10,42,151/- . CUSTOMER WISE DETA ILS OF UNEARNED REVENUE WHICH IS EXHIBITED AT PAGE 437 OF THE ASSES SEES PAPER BOOK AND THE SAME READ AS UNDER: CUSTOMER NAME UNEARNED REVENUE RECOGNIZED IN FINANCIAL STATEMENTS AS ON MARCH 31, 2010 (AMOUNT IN I NR), DETAILS OF REVENUE DEFERMENT BHARTI AIRTEL LIMITED 8,55,37,789 TATA 51,04,09,155 REFER APPENDIX I VODAFONE 10,48,30,713 REFER APPENDIX II IDEA 3,63,91,093 REFER APPENDIX III BHARAT SANCHAR 27,85,70,650 OTHER 1,31,51,655 GRAND TOTAL 1,02,88,91,055 15. A FURTHER BREAK-UP OF UNEARNED REVENUE F.Y. WI SE FOR THE MAJOR CELLULAR OPERATORS ARE PLACED AT PAGES 438 TO 441 O F THE PAPER BOOK AND THE SAME ARE AS UNDER: 7 8 9 10 16. THIS IS SUPPORTED BY THE CONTRACTS WITH THE CEL LULAR OPERATORS WHICH HAVE SAME TERMS AND CONDITIONS AND FOR THE SA KE OF CONVENIENCE, CONTRACT WITH TTSL HAS BEEN CONSIDERED WHICH IS PLACED AT PAGES 490 TO 505 OF THE PAPER BOOK. THIS CONTRA CT IS FOR THE MANAGED SERVICES AND THE MANAGED SERVICES ENCOMPASS THE FOLLOWING: A) START UP FEES B) ACCEPTANCE SUPPORT FEES C) PROGRAM MANAGEMENT FEES D) MANAGED SERVICES FEES 17. IT HAS BEEN PROVIDED THAT TTSL SHALL PAY 100% O F THE ACCEPTANCE SUPPORT FEES FOR EACH TELECOM CIRCLE AND PROGRAM MA NAGEMENT FEES SHALL BE COMPUTED AS UNDER: MONTH RANG E % DISCOUNT 0 3 0% 4 6 12% 7 9 19% 10 12 26% 13 15 33% 16 18 40% 19 21 48% 11 22 24 55% 25 27 62% 28 30 69% 31 33 76% 34 36 83% 37 39 90% 40 42 98% 18. UNDER THE ADDITIONAL TERMS, IT HAS BEEN AGREED THAT OFFER PRICES ARE BASED ON THE ASSUMPTION THAT MANAGED SERVICES W ILL BE PURCHASED BY TTSL FOR 14 QUARTERS [42 MONTHS] CONSECUTIVE FRO M MS START DATE I.E. 1 ST JUNE 2009 FOR FIRST OF ANY 9 TELECOM CIRCLES, AGRE ED GEOGRAPHY FOR FIXED BOM. ON THESE AGREE CONDITIONS, THE APPE LLANT HAS RECOGNISED REVENUE ON THE PERCENTAGE COMPLETION MET HOD AND WHEN THE MANAGED SERVICES HAVE ACHIEVED ITS PERCENTAGE C OMPLETION. THE SAME IS EXHIBITED ELSEWHERE IN THE FORM OF CHARTS. 19. IN LIGHT OF THE CONTRACTUAL TERMS AND CONDITION S, ON PERUSAL OF THE SUMMARY OF UNEARTHED REVENUE, AS MENTIONED ELSEWHER E, CLEARLY SHOWS THE F.YS IN WHICH REVENUE HAS BEEN RECOGNISED. THI S IS IN CONSONANCE WITH THE WELL RECOGNISED ACCOUNTING STANDARD 7 IS SUED BY THE INSTITUTE OF CHARTERED ACCOUNTANTS, WHICH IS THE HI GHEST ACCOUNTING 12 BODY CREATED BY AN ACT OF THE PARLIAMENT AND THE SA ME CANNOT BE BRUSHED ASIDE LIGHTLY. 20. IN OUR CONSIDERED OPINION, AS MANAGED SERVICES ARE TO BE RENDERED FOR 42 MONTHS, INCOME THEREOF IS SPREAD OV ER FOUR YEARS SINCE SERVICES ARE RENDERED FOR 10 MONTHS IN THE F.Y. UND ER CONSIDERATION COMMENSURATE AMOUNT IS BOOKED IN THE CURRENT YEAR A ND THE BALANCE IS TREATED AS UNEARNED REVENUE AT THE YEAR-END AS THES E SERVICES ARE PROVIDED BY INDETERMINATE NUMBER OF ACTS OVER A SPE CIFIED PERIOD OF TIME. REVENUE IS, THEREFORE, RECOGNISED ON STRAIGH T-LINE BASIS OVER A PERIOD FOR WHICH SERVICES ARE TO BE RENDERED. 21. NEEDLESS TO MENTION HER THAT SAME ACCOUNTING PR INCIPLE HAS BEEN ACCEPTED IN EARLIER A.Y. IT IS ALSO PERTINENT TO N OTE THAT THE ASSESSEE HAS OFFERED TAX IN SUBSEQUENT YEARS AMOUNT AS AND W HEN SERVICES ARE RENDERED AND, THEREFORE, BY ANY STRETCH OF IMAGINAT ION, IT CANNOT BE SAID THAT THERE IS SOME REVENUE LEAKAGE. FOR THIS PROPOSITION, WE DERIVE SUPPORT FROM THE DECISION OF THE HON'BLE SUP REME COURT IN THE CASE OF EXCEL INDUSTRIES 358 ITR 295. 22. THE HON'BLE DELHI HIGH COURT IN THE CASE OF DIN ESH KUMAR GOYAL [SUPRA] WAS SEIZED WITH THE FOLLOWING QUESTION: 13 WHETHER THE ENTIRE TUITION FEES OF THE COURSE, WHI CH MAY BE OF TWO YEARS DURATION, COLLECTED BY THE ASSESSEE RUNN ING A COACHING INSTITUTE FROM THE STUDENTS AT THE TIME OF ADMISSION, CAN BE TAXED IN THE YEAR OF RECEIPT? 23. THE HON'BLE HIGH COURT HELD AS UNDER: IT IS IMPORTANT THAT RECEIPT OF A PARTICULAR AMOUNT IN TH E RELEVANT YEAR SHOULD BE AN 'INCOME' UNDER THE PROVI SION OF S. 5. WHAT IS THE RELEVANT YARDSTICK IS THE TIME OF ACCRU AL OR ARISAL FOR THE PURPOSE OF ITS TAXATION, VIZ., IN ORDER TO BE CHARGEABLE, THE INCOME SHOULD ACCRUE OR ARISE TO THE ASSESSEE D URING THE PREVIOUS YEAR. IF INCOME HAS ACCRUED OR ARISEN, EVE N IF ACTUAL RECEIPT OF THE AMOUNT IS NOT THERE, IT WOULD BE CHA RGEABLE TO TAX IN THE SAID YEAR. THOUGH THE AMOUNT MAY BE RECE IVED LATER IN THE SUCCEEDING YEAR, THE INCOME WOULD BE SAID TO ACCRUE OR ARISE IF THERE IS A DEBT OWED TO THE ASSESSEE BY SO MEBODY AT THAT MOMENT. FROM THIS, IT FOLLOWS THAT THERE MUST BE THE 'RIGHT TO RECEIVE THE INCOME ON A PARTICULAR DATE, SO AS TO BRING ABOUT A CREDITOR AND DEBTOR RELATIONSHIP ON THE REL EVANT DATE'.E.D. SASSOON & CO. LTD. & ORS. VS. CIT (1954 ) 26 ITR 27 (SC) FOLLOWED. AT THE TIME OF ADMISSION, THE STUDENTS ARE REQUIRED TO DEPOSIT THE WHOLE FEE OF THE ENTIRE COURSE, BUT THA T WOULD ONLY REMAIN A 'DEPOSIT' OR 'ADVANCE' AND IT CANNOT BE SAID THAT THIS FEE HAD BECOME 'DUE' AT THE TIME OF DEPOSIT. F EE IS 14 CHARGED IN ADVANCE FOR THE ENTIRE COURSE, PRESUMABL Y BECAUSE OF THE REASON THAT THERE SHOULD NOT BE ANY DEFAULT IN MAKING THE SAID FEE BY THE STUDENTS DURING THE PERIOD OF C OURSE. INTERESTINGLY, THE AO IN HIS ASSESSMENT ORDER HAS H IMSELF STATED THAT 'STUDENTS WERE REQUIRED TO DEPOSIT THE FEE FOR THE WHOLE MODULE OF COURSE AT THE TIME OF REGISTRAT ION ITSELF'. THE AO HAS USED THE EXPRESSION 'DEPOSIT'. IN THE VE RY NEXT BREADTH, HE DRAWS THE CONCLUSION THAT THIS WOULD ME AN THAT THE FEE HAD BECOME 'DUE'. THUS, THE AO KNEW THE SIG NIFICANCE OF THE EXPRESSION 'DEPOSIT' VIS-A-VIS 'DUE', THOUGH HE COMMITTED THE MISTAKE IN TREATING THE SAID DEPOSIT AS THE FEE BECOMING DUE. IT BECOMES APPARENT THAT THE FEE WAS NOT DUE AT THE TIME OF DEPOSIT. THE SERVICES IN RESPECT OF FINANCIAL YEAR 1997-98, FOR WHICH ALSO THE PAYMENT WAS TAKEN IN ADVANCE WERE YET TO BE RENDERED. THEREFORE, THIS CO ULD ONLY BE TREATED AS ADVANCE OTHERWISE IT WOULD LEAD TO AN ANOMALOUS SITUATION, HIGHLY DEROGATORY TO THE ASSESSEE, WHICH IS NOT INTENDED IN LAW, VIZ., EVEN WHEN THE VERY AMOUNT RE CEIVED, EXPENSES ARE TO BE DEDUCTED TO ARRIVE AT THE NET IN COME AND THOSE EXPENSES ARE YET TO BE INCURRED (WHICH MAY BE INCURRED IN THE NEXT FINANCIAL YEAR), THE ENTIRE RECEIPTS BE COME INCOME WHICH WOULD BE EXIGIBLE TO MUCH TAX.E.D. SASSOON & CO. LTD. & ORS. VS. CIT (1954) 26 ITR 27 (SC), 24. THE HON'BLE HIGH COURT FURTHER OBSERVED AS UNDE R: 15 THE TERM 'ACCRUAL' RELATES TO REVENUES EARNED OR C OST INCURRED. TWO THINGS FOLLOW FROM THIS, VIZ., UNLESS THE REVENUE IS EARNED, IT IS NOT ACCRUED. LIKEWISE, THE EXPENSE S UNLESS ARE INCURRED, COST IN RESPECT THEREOF CANNOT BE TREATED AS ACCRUED. SECONDLY, IT RECOGNIZES THE MATCHING CONCE PT, VIZ., RECEIPTS ARE TO BE MATCHED EXPENDITURE TO ARRIVE AT THE NET INCOME, WHICH WOULD THEN BE EXIGIBLE TO TAX. READIN G OF THE AS-9 ISSUED BY ICAI MAKES IT CLEAR THAT REVENUE IS RECOGNIZED ONLY WHEN THE SERVICES ARE ACTUALLY REND ERED. IF THE SERVICES ARE RENDERED PARTIALLY, REVENUE IS TO BE SHOWN PROPORTIONATE WITH THE DEGREE OF COMPLETION OF THE SERVICES. THIS REALLY CLINCHES THE ISSUE IN FAVOUR OF THE ASS ESSEE. THE RECEIPTS RELATE TO THE UNEXECUTED PACKAGES, WHICH A RE NOT SHOWN IN THE INSTANT YEAR WOULD BE SHOWN IN THE SUC CEEDING YEAR. RATE OF TAX IN RESPECT OF COMPANIES REMAINS T HE SAME IN ALL THESE YEARS. THEREFORE, THE REVENUE DOES NOT LO SE ANYTHING, AS IT WOULD RECEIVE THE TAX ON THIS INCOM E IN THE SUCCEEDING YEAR. STILL ISSUES ARE RAISED AND MUCH O UTCRY IS MADE FOR NOTHING. ALL THESE APPEALS ARE DISMISSED W ITH COSTS QUANTIFIED AT RS. 10,000 IN EACH APPEAL. THE ENTIRE COST SHALL BE PAID WITHIN A PERIOD OF TWO WEEKS TO THE LIBRARY FUND OF THE DELHI HIGH COURT BAR ASSOCIATION.CIT VS. WOODW ARD GOVERNOR INDIA (P) LTD. (2009) 223 CTR (SC) 1 : (20 09) 21 DTR (SC) 106 :(2009) 312 ITR 254 (SC) AND CIT VS. B ILAHARI INVESTMENT (P) LTD. (2008) 215 CTR (SC) 201 :(2008) 3 DTR (SC) 329 :(2008) 299 ITR 1 (SC) APPLIED. 16 25. CONSIDERING THE FACTS OF THE CASE IN TOTALITY, IN THE LIGHT OF CONTRACTUAL TERMS AND CONDITIONS AND CONSIDERING TH E FACT THAT THE UNEARNED REVENUE HAS BEEN OFFERED FOR TAX IN THE SU BSEQUENT YEARS AS EXHIBITED IN CHART ELSEWHERE, WE ARE OF THE CONSIDE RED OPINION THAT HT ADDITION OF RS. 1,02,88,91,000/- IS UNCALLED FOR AN D DESERVES TO BE DELETED. THUS, GROUND NO. 2 IS ALLOWED. 26. GROUND NO. 3 RELATES TO THE DISALLOWANCE OF PRO VISION FOR LIQUIDATED DAMAGES AMOUNTING TO RS. 57,93,45,721/-. DURING THE COURSE OF THE SCRUTINY ASSESSMENT PROCEEDINGS, THE AO ASKED THE ASSESSEE TO EXPLAIN HOW PROVISION OF LIQUIDATED DAM AGES WAS WORKED AND TO GIVE DETAILS OF ACTUAL CLAIMS VIZ-A-VIZ PROV ISION FOR LAST THREE YEARS. VIDE REPLY DATED 10.03.2014 THE ASSESSEE EX PLAINED IN DETAIL THE NATURE OF THE PROVISION AND HOW IT HAS BEEN DEA LT IN ITS ACCOUNTS. THE DETAILED REPLY OF THE ASSESSEE IS EXHIBITED AT PAGES 6 TO 10 OF THE ASSESSMENT ORDER. 27. THE DETAILED REPLY OF THE ASSESSEE DID NOT FIND ANY FAVOUR WITH THE AO WHO WAS OF THE OPINION THAT PART OF THE PROV ISION OF LIQUIDATED DAMAGES WAS ON UNSCIENTIFIC BASIS AND ON THE BASIS OF THE DETAILS FILED BY THE ASSESSEE IT IS NOT POSSIBLE TO DETERMINE HOW MUCH WAS ON 17 SCIENTIFIC BASIS AND HOW MUCH WAS ON NON-SCIENTIFIC BASIS. ACCORDINGLY, THE CLAIM OF ASSESSEE WAS REJECTED AND ADDITION OF RS. 57,93,45,721/- WAS MADE WHICH WAS CONFIRMED BY THE DRP. BEFORE US , COUNSEL FOR THE ASSESSEE OUT RIGHTLY STATED THAT A SIMILAR ISSUE WA S CONSIDERED BY THE TRIBUNAL IN ASSESSEES OWN CASE IN AY 2004-05 AND H AS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE AND AGAINST THE REV ENUE. 28. PER CONTRA, THE DR STRONGLY SUPPORTED THE FINDI NGS OF THE AO/DRP BUT COULD NOT BRING ANY DISTINGUISH ADDITION IN FAV OUR OF THE REVENUE. 29. WE HAVE GIVEN A CAREFUL CONSIDERATION TO THE OR DERS OF THE AUTHORITIES BELOW AND HAVE ALSO PERUSED THE ORDER O F THE COORDINATE BENCH IN ITA NO. 3202/DEL/2014 FOR AY 2004-05. WE FIND FORCE IN THE CONTENTION OF THE LD. COUNSEL. AN IDENTICAL ISSUE WAS CONSIDERED AND DECIDED BY THE COORDINATE BENCH. THE RELEVANT FIND INGS READ AS UNDER: 4.4.1 GROUND NO. 5 OF APPEAL IS DIRECT AGAINST DISALLOWANCE OF A SUM OF RS. 17,61,99,671/- TOWARDS PROVISION FOR LIQUIDATED DAMAGES. DURING THE YEAR, THE ASSESSEE HAS CLAIMED PROVISION FOR LIQUIDATED DAMAG ES TO THE TUNE OF RS. 17,61,99,671/-. THE ASSESSEE ST ATED THAT IN TERMS OF THE PURCHASE ORDER RECEIVED FROM CUSTOMERS, LIQUIDATED DAMAGES @ 0.5% PER WEEK SUBJECT TO A MAXIMUM OF 0.7% OR SUCH OTHER RATE AS PER THE RELEVANT CONTRACT WOULD BE IMPOSED FOR THE LATE DELIVERY OF EQUIPMENT. THE STIPULATION IN THE 18 PURCHASE ORDER CLEARLY SHOWS THAT THE LIABILITY FOR LIQUIDATED DAMAGES IS CERTAIN, ACCRUED AND IS NOT DEPENDENT UPON THE HAPPENING OF ANY EVENT OTHER THAN DELAY IN DELIVERIES. AS THE COMPANY DEFAULTED IN THE DELIVERY TERMS, THE LIQUIDATED DAMAGES HAVE BEE N RIGHTLY CONSIDERED AS BUSINESS EXPENDITURE. THE COMPANY IS FOLLOWING THE METHOD ON A CONSISTENT BAS IS. WHEN THE PAYMENT WAS ACTUALLY MADE THE ACCOUNTS WERE ADJUSTED WITH REFERENCE TO ANY REMISSION OR WAIVER THAT THE COMPANY MAY GET IN RESPECT OF DAMAGES PAYABLE FOR THE LATE DELIVERY AND THE SAME WAS BROUGHT TO TAX U/S 41(1) OF THE IT ACT, 1961 BY CREDITING THE LIQUIDATED DAMAGES ACCOUNT. THE AO HELD THAT THE PROVISION MADE FOR LIQUIDITY DAMAGES AMOUNTING TO RS. 17,61,99,671/- IS UNASCERTAINED LIABILITY IN THE NATURE OF CONTINGENT LIABILITIES A ND, THEREFORE, ADDED THE SAME. IN TERMS OF THE PURCHAS E ORDER, LIQUIDATED DAMAGES @ 0.5% PER WEEK SUBJECT T O A MAXIMUM OF 0.7% WOULD BE IMPOSED. THE COMPANY DEFAULTED IN THE DELIVERY TERMS, THEREFORE, THE ABO VE LIABILITY IS AS DEFINITE LIABILITY. FURTHER, AS TH E LIABILITY IS DETERMINABLE 0.05% PER WEEK SUBJECT TO A MAXIMUM OF 0.7%, THEREFORE, THE LIABILITY IS ALSO A N ASCERTAINED LIABILITY. THE LIABILITY TO PAY LIQUID ATED DAMAGES AROSE NO SOONER THAN THERE WAS A BREACH. THE COMPANY HAD PROVIDED FOR THE LIQUIDATED DAMAGES PERTAINING TO THE PERIOD OF DELAY FALLING WITHIN TH E PREVIOUS YEAR IN ORDER TO ARRIVE AT THE TRUE INCOME OF 19 THAT YEAR BASED ON THE ACCRUAL METHOD OF ACCOUNT. THE COMPANY IS FOLLOWING THE METHOD ON A CONSISTENT BASIS. 4.4.2 HONBLE SUPREME COURT IN THE CASE OF BHARAT EARTH MOVERS LTD. VS. CIT (245 ITR 428) HELD THAT I F A BUSINESS LIABILITY HAS DEFINITELY ARISEN IN THE ACCOUNTING YEAR, THE DEDUCTION SHOULD BE ALLOWED ALTHOUGH THE LIABILITY MAY HAVE TO BE QUANTIFIED AN D DISCHARGED AT A FUTURE DATE. WHAT SHOULD BE CERTAIN IS THE INCURRING OF THE LIABILITY. IT SHOULD ALSO BE CAPABLE FOR BEING ESTIMATED WITH REASONABLE CERTAINTY THOUG H THE ACTUAL QUANTIFICATION MAY NOT BE POSSIBLE. IF THESE REQUIREMENTS ARE SATISFIED THE LIABILITY IS NOT A CONTINGENT ONE. SIMILAR DISALLOWANCE WAS DELETED B Y LD. CIT(A) IN AY 2005-06 FOLLOWING THE DISALLOWANCE OF HONBLE ITAT IN THE CASE OF THERMAX BABCOCK AND WILCOX LTD. VS. ADDL. CIT 304 ITR 130 (AT). IN VIE W OF THE ABOVE FACTUAL AND LEGAL POSITION, THE ADDITION OF RS. 17,61,99,671/- TOWARDS PROVISION FOR LIQUIDATED DAMAGES MADE BY THE AO IS LEGALLY NOT SUSTAINABLE. THEREFORE, THE SAME IS DELETED. THE APPEAL IS ALLO WED IN THIS GROUND. 8. IN THE PRESENT CASE FROM PAGE NO. 136 OF THE ASS ESSEES PAPER BOOK, IT IS NOTICED THAT TOTAL PROVISION FOR LIQUIDATED DAMAGES WAS OF RS. 19,66,51,910/- OUT OF WHICH RS. 2,04,52,238/- WERE UTILIZED AND CREDITED/WRITTEN BA CK, THE REMAINING AMOUNT OF RS. 17,61,99,672/- WAS THE ACTU AL AMOUNT OF THE DAMAGES WHICH WERE ACCOUNTED FOR IN T HE 20 PROFIT AND LOSS ACCOUNT. IN THE INSTANT CASE, THE LD. CIT(A) CATEGORICALLY STATED THAT WHEN THE PAYMENTS WERE AC TUALLY MADE, THE ACCOUNTS WERE ADJUSTED WITH REFERENCE TO ANY REMISSION OR WAIVER THAT THE COMPANY MAY GET IN RES PECT OF DAMAGES PAYABLE FOR THE LATE DELIVERY AND THE SAME WAS BROUGHT TO TAX U/S 41(1) OF THE ACT BY CREDITING TH E LIQUIDATED DAMAGES ACCOUNTS. THEREFORE, THE IMPUGNED AMOUNT W AS NOT ONLY THE PROVISION BUT THE ACTUAL AMOUNT OF THE LIQ UIDATED DAMAGES PERTAINING TO THE PERIOD OF DELAY FALLING W ITHIN THE PREVIOUS YEAR RELATING TO THE ASSESSMENT YEAR UNDER CONSIDERATION. THE LD. CIT(A) CATEGORICALLY STATED THAT THE ASSESSEE WAS FOLLOWING THIS METHOD CONSISTENTLY. W E, THEREFORE, DO NOT SEE ANY VALID GROUND TO INTERFERE WITH THE FACTUAL FINDINGS GIVEN BY THE LD. CIT(A) AND ACCORD INGLY DO NOT SEE ANY MERIT IN THE GROUND RAISED BY THE DEPAR TMENT. 30. RESPECTFULLY FOLLOWING THE FINDINGS OF THE COOR DINATE BENCH, WE DIRECT FOR THE DELETION OF THE ADDITION OF RS. 57,9 3,45,721/-. THE GROUND NO. 3 IS ACCORDINGLY ALLOWED. 31. GROUND NO. 4 RELATES TO THE DISALLOWANCE OF EXP ENDITURE INCURRED IN FOREIGN CURRENCY. WHILE SCRUTINIZING THE RETURN OF INCOME AND ON PERUSAL OF FORM 15CA THE AO NOTICED THAT THE ASSESS EE HAS MADE CERTAIN PAYMENTS IN FOREIGN CURRENCY WITHOUT DEDUCT ING TAX AT SOURCE. THE ASSESSEE WAS ASKED TO FURNISH THE DETAILS AND O N PERUSAL OF THE DETAILS THE AO FOUND THAT THE ASSESSEE HAS PAID AN AMOUNT OF RS. 21 9,70,103/- AS SCHOOL FEE TO VARIOUS SCHOOLS. THE A O WAS OF THE FIRM BELIEF THAT THIS IS NOT ALLOWABLE BUSINESS EXPENDIT URE AND, ACCORDINGLY, MADE THE ADDITION OF RS. 9,70,103/- WHICH WAS UPHEL D BY THE DRP. BEFORE US, THE COUNSEL FOR THE ASSESSEE STATED THAT THE EXPENDITURE HAS BEEN INCURRED FOR THE WELFARE OF THE EMPLOYEES AND HENCE SHOULD BE ALLOWED AS BUSINESS EXPENDITURE. THE COUNSEL FURTH ER STATED THAT THE SAID SCHOOL FEE HAS BEEN TREATED AS PERQUISITES IN THE HANDS OF THE EMPLOYEES AND, THEREFORE, THE SAME PART TAKES THE C HARACTER OF SALARIES. THE DR STRONGLY SUPPORTED THE FINDINGS O F THE AO. IT IS THE SAY OF DR THAT A NEW PLEA HAS BEEN TAKEN BY THE COU NSEL FOR THE FIRST TIME BEFORE THE TRIBUNAL WHICH NEEDS VERIFICATION. 32. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTI ONS. IT IS NOT IN DISPUTE THAT SCHOOL FEES OF THE CHILDREN OF THE EMP LOYEES HAVE BEEN PAID BY THE ASSESSEE COMPANY. WE ARE OF THE CONSID ERED VIEW THAT IF THE SAME IS TREATED AS PERQUISITES IN THE HANDS OF THE EMPLOYEES THEN THE SAME TAKES THE COLOUR OF THE SALARIES. WE, ACC ORDINGLY, RESTORE THIS ISSUE TO THE FILES OF THE AO. THE ASSESSEE IS DIRECTED TO DEMONSTRATE THAT THE SCHOOL FEES HAS BEEN TREATED A S PERQUISITES IN THE HANDS OF THE EMPLOYEES AND THE AO IS DIRECTED TO EX AMINE THE SAME AND DECIDE THE ISSUE AFRESH AFTER GIVING A REASONAB LE OPPORTUNITY OF 22 BEING HEARD TO THE ASSESSEE. GROUND NO. 4 IS TREAT ED AS ALLOWED FOR STATISTICAL PURPOSES. 33. GROUND NO. 5 RELATES TO THE DISALLOWANCE OUT OF TECHNICAL TRAINING EXPENDITURE. AS MENTIONED ELSEWHERE DURING THE COU RSE OF THE ASSESSMENT PROCEEDINGS THE ASSESSEE WAS ASKED TO GI VE DETAILS OF FOREIGN CURRENCY PAYMENTS WITH NATURE AND TDS. ASS ESSEE FILED THE DETAILS OF EXPENDITURE IN FOREIGN CURRENCY AND THE SAME IS AS UNDER: NAME OF VENDOR AMOUNT IN INR SIEMENS AG OSTERREICH 8,97,807 TELEMANAGEMENT FORUM 9,17,375 HIGHDEAL SA 19,07,362 IMOLA INFORMATICA SRL 5,92,193 DIGITAL ROUTE AB 4,75,393 CONTRA 18,94,84,993 NOKIA SIEMENS NETWORKS GMBH & CO. KG BMC SOFTWARE ASIA PACIFIC PTE LTD 53,10,206 2,62,523 TOTAL 19,98,47,851 34. FROM THE ABOVE TABLE, THE AO FOUND THAT A SUM O F RS. 18.94 CRORES WAS NOT PAID TO ANYONE. WHEN THE ASSESSEE W AS ASKED TO JUSTIFY THE SAME, THE ASSESSEE FILED A CERTIFICATE OF A CHA RTERED ACCOUNTANT STATING THEREIN THAT THE SAID AMOUNT HAS BEEN WRONG LY INCLUDED IN THE FIGURES OF FOREIGN EXCHANGE OUTFLOW. THE ASSESSEE ALSO FILED RELEVANT LEDGER ACCOUNT TO SHOW THAT IT IS MERELY A CONTRA E NTRY AND NO SUCH EXPENDITURE HAS BEEN CHARGED TO THE PROFIT AND LOSS ACCOUNT. 23 35. THE REPLY OF THE ASSESSEE DID NOT FIND ANY FAVO UR WITH THE AO WHO WAS OF THE OPINION THAT THE CERTIFICATE OF THE CHAR TERED ACCOUNTANT IS NOT FROM THE CHARTERED ACCOUNTANT WHO HAS AUDITED T HE ACCOUNTS. THE AO, ACCORDINGLY, ADDED THE SUM OF RS. 18,94,84,993/ - WHICH WAS UPHELD BY THE DRP. BEFORE US, THE COUNSEL FOR THE ASSESSEE REITERATED THAT THE SAID ENTRY WAS A CONTRA ENTRY AND INADVERT ENTLY THE SAME HAS BEEN SHOWN UNDER THE DETAILS OF EXPENDITURE IN A FO REIGN CURRENCY. IT IS THE SAY OF THE COUNSEL THAT COMPLETE LEDGER ACCO UNTS WERE FILED BEFORE THE AO AND THE DRP BUT NONE OF THEM EXAMINED THE LEDGER ACCOUNTS. THE DR STRONGLY SUPPORTED THE FINDINGS O F THE AO/DRP. 36. WE HAVE CAREFULLY CONSIDERED THE ORDERS OF THE AUTHORITIES BELOW. IT IS TRUE THAT AMOUNT OF RS. 18.94 CRORES IS PART OF THE DETAILS OF THE EXPENDITURE IN FOREIGN CURRENCY AS MENTIONED ELSE W HERE. IT IS EQUALLY TRUE THAT THE CHARTERED ACCOUNTANT CERTIFICATE CLEA RLY SHOWS THAT IT IS A CONTRA ENTRY INADVERTENTLY SHOWN UNDER THE HEAD DETAILS OF EXPENDITURE IN FOREIGN CURRENCY. WE FIND THAT COM PLETE LEDGER ACCOUNTS WERE GIVEN TO THE LOWER AUTHORITIES WHICH WERE NOT EXAMINED BY THEM. IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE RESTORE THIS ISSUE TO THE FILES OF THE AO. THE AO IS DIRECTED TO EXAM INE THE LEDGER ACCOUNTS AND VERIFY WHETHER IT IS CONTRA ENTRIES AN D AFTER VERIFYING THE SAME AND IF FOUND CORRECT DELETE THE ADDITION, AFTE R GIVING A 24 REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. GROUND NO. 5 IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 37. GROUND NO. 6 RELATES TO THE DISALLOWANCE OF DEP RECIATION ON GOODWILL. AT THE VERY OUTSET, THE COUNSEL OF THE A SSESSEE STATED THAT THIS ISSUE IS NOW WELL SETTLED IN FAVOUR OF THE ASS ESSEE AND AGAINST THE REVENUE BY THE ORDER OF THE TRIBUNAL FOR AY 2008-09 . THE COUNSEL POINTED OUT THAT THE TRIBUNAL HAS SET ASIDE THE ISS UE FOR VERIFICATION AND THE AO HAS ALLOWED DEPRECIATION GIVING EFFECT T O THE ORDER OF THE TRIBUNAL. THE DR STRONGLY OBJECTED TO THE CLAIM OF DEPRECIATION ON GOODWILL AND POINTED OUT THAT SECTION 32 IS SILENT OF DEPRECIATION ON GOODWILL AND SINCE THERE IS NO SPECIFIC PROVISION F OR THE CLAIM OF DEPRECIATION ON GOODWILL THE SAME SHOULD NOT BE ALL OWED. 38. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTI ONS. IN SO FAR AS THE CLAIM OF DEPRECIATION ON GOODWILL IS CONCERNED THE ISSUE IS NOW WELL SETTLED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE BY THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F SMIFS SECURITIES LTD. 348 ITR 302. SO FAR AS THE CLAIM OF DEPRECIAT ION IS CONCERNED, WE FIND THAT THE ASSESSING OFFICER HIMSELF HAS ALLOWED THE CLAIM OF DEPRECIATION WHILE GIVING EFFECT TO THE ORDER OF TH E COORDINATE BENCH IN ITA NO. 332/DEL/2013 FOR AY 2008-09. SINCE THE DEPRECIATION HAS ALREADY BEEN ALLOWED FOR AY 2008-09 BY THE COORDINA TE BENCH (SUPRA). 25 WE, ACCORDINGLY, DIRECT THE AO TO ALLOW THE DEPRECI ATION ON GOODWILL AS PER THE PROVISIONS OF LAW. GROUND NO. 6 IS ACCORDI NGLY ALLOWED. 39. GROUND NO. 7 RELATES TO THE TRANSFER PRICING AD JUSTMENTS AMOUNTING TO RS. 1,17,24,04,607/-. THE ADJUSTMENTS HAVE BEEN MADE IN RESPECT OF THE INTERNATIONAL TRANSACTION UNDER T AKEN BY THE APPELLANT NAMELY PROVISION OF MARKETING SUPPORT SER VICES AND PROVISION OF WARRANTY SUPPORT SERVICES. WE FIND THAT A SIMIL AR TRANSFER PRICING ADJUSTMENT WAS MADE IN AY 2009-10 IN RESPECT OF MAR KET SUPPORT SERVICE SEGMENT AND THE MATTER TRAVELLED UPTO THE T RIBUNAL AND THE COORDINATE BENCH IN ITA NO. 2810/DEL/2014 HAS DECID ED THIS ISSUE AS UNDER: 44. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE G IVEN THOUGHTFUL CONSIDERATION TO THE ORDERS OF THE AUTHO RITIES BELOW. IT IS AN UNDISPUTED FACT THAT THE ASSESSEE HAS RECHARGED THE TOTAL COST OF MARKETING TEAM ALONG WI TH MARK UP OF 3% FROM THE AE, WHICH MEANS THAT THE AE NOT O NLY COMPENSATED THE COST OF MARKETING, TEAM ATTRIBUTABL E TOWARDS THE PROVISION OF MARKETING SUPPORT SERVICES TO AE BY THE ASSESSEE BUT ALSO COMPENSATED THE COST OF MARKE TING TEAM ATTRIBUTABLE TO THE SUPPORT PROVIDED BY THE MA RKETING TEAM TO THE ASSESSEE ITSELF. THIS IS NOT WARRANTED AS PER THE INTER COMPANY AGREEMENT. IN OUR CONSIDERED OPINION , CONSIDERING THE ATTRIBUTION TO THE SERVICES PROVIDE D TO THE AE, VIS A VIS ACTUAL REVENUE REALISED FROM THE AE, MARGIN OF 26 THE ASSESSEE FROM THE PROVISION OF MARKETING SUPPOR T SERVICES HAS TO BE HIGHER THAN 3%. WE FIND THAT NOW THE ASS ESSEE HAS OBTAINED CERTAIN DOCUMENTARY EVIDENCE AND, ACCORDIN GLY, WISHES TO SUBMIT THE SAME IN RESPECT OF THE CLAIM. 45. IN VIEW OF THE ABOVE, WE ARE OF THE CONSIDERED OPINION THAT COST OF MARKETING TEAM SHOULD BE BIFURCATED BA SED ON REVENUE OF AE FROM ITS OPERATIONS IN INDIA VIS A VI S REVENUE GENERATED BY THE ASSESSEE FROM ITS SALES TO THIRD P ARTY VENDORS. WE, ACCORDINGLY, RESTORE THIS ISSUE TO TH E FILE OF THE ASSESSING OFFICER/TPO. THE ASSESSEE IS DIRECTED TO SUBMIT THE INDIA SPECIFIC PROFIT AND LOSS ACCOUNT, NETWORK EQU IPMENT SALES TO INDIAN TELECOM OPERATORS OF THE AE DULY CE RTIFIED BY AN AUTHORISED PUBLIC ACCOUNTANT OF FINLAND. THE TP O IS DIRECTED TO EXAMINE THE SAME AND DECIDE THE ISSUE A FRESH AFTER GIVING REASONABLE AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 40. RESPECTFULLY FOLLOWING THE FINDINGS OF THE COOR DINATE BENCH ON FINDING PARITY OF THE FACTS WITH THE CASE IN HAND, WE DIRECT THE AO/TPO ACCORDINGLY. 41. THE SECOND ADJUSTMENT IS IN RESPECT OF WARRANTY SUPPORT SERVICES. THIS WAS ALSO DISPUTED IN AY 2009-10 AND THE COORDINATE BENCH IN THE SAME ORDER IN ITA NO. 2810/DEL/2014 HA S DECIDED THIS ISSUE AS UNDER: 53. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE G IVEN THOUGHTFUL CONSIDERATION TO THE ORDERS OF THE AUTHO RITIES 27 BELOW. WE HAVE ALSO ACCORDINGLY PERUSED THE ADVANC E PRICING AGREEMENT U/S 92CC OF THE ACT BETWEEN THE CBDT AND THE ASSESSEE WHICH IS EXHIBITED AT PAGES 18 TO 76 OF TH E PAPER BOOK. IT IS TRUE THAT THE AGREEMENT IS APPLICABLE TO 4 CONSECUTIVE ROLLBACK YEARS COMMENCING FROM THE PREV IOUS YEAR 2009-10 TO PREVIOUS YEAR 2012-13. HOWEVER, WE FIND THAT THE FAR ANALYSIS OF THE YEAR UNDER APA APPLICA BLE FROM ASSESSMENT YEAR 2010-11 TO BE READ AS (2014-15) CAN ALSO BE USED FOR THE YEAR UNDER CONSIDERATION SINCE THE TP ADJUSTMENT IS OF A VERY SMALL AMOUNT BEING 1.01 CRO RES. CONSIDERING THE FACTS IN TOTALITY, WE DIRECT THE TP O TO ACCEPT THE TSS SEGMENT AS PART OF NETWORK DIVISION FOR BEN CH MARKING THE INTERNATIONAL TRANSACTION WHICH MEANS T HAT THIS SEGMENT SHOULD BE TAKEN WITH THE MAIN NETWORK DIVIS ION OF AGGREGATED APPROACH FOR BENCH MARKING. 42. SINCE, THE FACTS OF THE CASE IN HAND ARE IDENTI CAL TO THE FACTS OF AY 2009-10. RESPECTFULLY FOLLOWING THE FINDINGS OF THE COORDINATE BENCH (SUPRA), WE DIRECT ACCORDINGLY. GROUND NO. 7 IS ALLOWED. 43. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED IN PART FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 21.11. 2019. SD/- SD/- [ KULDIP SINGH] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER 28 DATED: 21 ST NOVEMBER, 2019 VL/ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR ITAT, NEW DELHI