Agilis Information Technologies International Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 1063/DEL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3620 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 8 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: I2
• Next Hearing Date: 10-07-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 01-03-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Business income; Transfer pricing; International transaction
• Section: 143(3)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: I-2 NEW DELHI BEFORE SHRI R. S. SYAL VICE PRESID ENT AND MS SUCHITRA KAMBLE, JUDI CIAL MEMBER ITA NO. 1063/DEL/201 6 ( A.Y 2011-12) AGILIS INFORMATION TECHNOLOGIES INTERNTIONAL PVT. LTD. (NOW KNOWN AS INFOGIX INTERNATIONAL PVT. LTD.) E-11, RAJOURI GARDEN NEW DELHI AAECA2786J (APPELLANT) VS ITO WARD-1(4) RANGE-1 NEW DELHI (RESPONDENT) APPELLANT BY SHRI. NEERAJ JAIN, ADV RESPONDENT BY SH. H. K. CHOUDHARY, CIT- DR ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ASSESSMENT ORDER DATED 27/01/2016 PASSED BY ITO, WARD-1(4), NEW DELH I U/S 143(3) READ WITH SECTION 144C OF INCOME TAX ACT, 1961 IN ASSESSMENT YEAR 2011-12. 2. AGILIS INFORMATION TECHNOLOGIES INTERNATIONAL (I ) LTD. IS ESTABLISHED IN INDIA TO UNDERTAKE SOFTWARE DEVELOPMENT AND INSTALL ATION OF COMPUTERIZED SYSTEMS, CONDUCT FEASIBILITY STUDIES, SYSTEMS ANALY SIS AND DESIGN AS WELL AS DESIGN OF SPECIAL SOFTWARE AND SYSTEM AND APPLICATI ON OF SOFTWARE. IT IS ALSO ENGAGED IN THE BUSINESS OF RENDERING TECHNICAL SERV ICES RELATED TO TABULATION, CODING AND SOFTWARE DEVELOPMENT. IT IS ESTABLISHED TO UNDERTAKE AND ENGAGED IN DATE OF HEARING 28.08.2017 DATE OF PRONOUNCEMENT 13.11.2017 2 EXPORT OF SOFTWARE, COMPUTER SKILLED MANPOWER AND O THER COMPUTER RELATED ACTIVITIES TO CARRY OUT DEVELOPMENT IN THE AREA OF INFORMATION TECHNOLOGY, COMPUTER SYSTEMS, SOFTWARE, APPLICATION SOFTWARE, I NTEGRATED TOLLS FOR COMPUTER SYSTEMS AND APPLICATION DEVELOPMENT, DATA COMMUNICA TION AND NETWORK. THE INTERNATIONAL TRANSACTION WAS SOFTWARE DEVELOPMENT AND SUPPORT SERVICES FOR RS. 14,31,12,709/-. THE ASSESSEE USED TNMM AS THE M ETHOD AND OP/TC AS THE PLI. THE ASSESSEE ARRIVED AT A SET OF 23 COMPAN IES WITH AN AVERAGE MARGIN OF 7.64%. THE ASSESSEE HAS USED MULTIPLE YEAR DATA. THE ASSESSEES OWN MARGIN IS WORKED OUT TO BE 7.99%. BASED ON THIS ANA LYSIS, THE ASSESSEE CONCLUDED THAT ITS INTERNATIONAL TRANSACTIONS ARE A T ARMS LENGTH. A SHOW CAUSE NOTICE DATED 05.12.2014 WAS ISSUED TO THE ASSESSEE. THE ASSESSEE MADE REPLY DATED 17.12.2014 IN RESPONSES TO THE SHOW CAUSE NOT ICE AND THE PERSONAL HEARING WAS CONDUCTED ON THE SAME DAY. THE TPO REJE CTED THE OBJECTIONS RAISED BY THE ASSESSEE BY REJECTING THE ECONOMIC AN ALYSIS OF THE ASSESSEE. FOREIGN EXCHANGE FLUCTUATION WAS ALSO TREATED AS NO N OPERATING INCOME OF THE TAXPAYER AND ALSO IN THE CASE OF COMPARABLES BY THE TPO. 3. THE TPO APPLIED THE FOLLOWING QUANTITATIVE AND Q UALITATIVE FILTERS FOR THE PURPOSE OF BENCHMARKING ANALYSIS. (I) USE OF CURRENT YEAR DATA (II) COMPANIES HAVING DIFFERENT FINANCIAL YEAR ENDING WERE REJECTED (III) COMPANIES HAVING SALES LESS THAN 5 CRORES WERE REJECTED (IV) COMPANIES UNDERTAKING SIGNIFICANTLY DIFFERENT FUNCTIONS COMPARED TO APPLICANT (V) INCOME FROM EXPORT SALES AT LEAST 75% OF T HE TOTAL SALES FROM SOFTWARE DEVELOPMENT SERVICES INCOME (VI) COMPANIES HAVING SERVICE INCOME AT-LEAST 7 5% TO TOTAL OPERATING INCOME (VII) COMPANIES HAVING EMPLOYEE COST TO OPERATIN G COST RATIO MORE THAN 25% WERE SELECTED (VIII) COMPANIES HAVING RPT MORE THAN 25% OF TOTA L SALES WERE REJECTED (IX) COMPANIES INCURRING PERSISTENT LOSSES FOR THE LAST THREE YEARS UPTO AND INCLUDING FY 2010-11 WERE REJECTED (X) COMPANIES THAT ARE AFFECTED BY SOME PECULIAR ECONOMIC CIRCUMSTANCES 3 ACCORDINGLY, THE TPO ARRIVED AT THE FOLLOWING COMP ARABLE COMPANIES WITH AN AVERAGE OPERATING PROFIT TO OPERATION COST RATIO OF 28.52%. S. NO. COMPANY NAME OP/OC% 1 PERSISTENT SYSTEMS AND SOLUTIONS LTD. 22.12 2 LARSEN & TURBO INFOTECH LTD. 18.40 3 PERSISTENT SYSTEMS LTD. 23.08 4 SASKEN COMMUNICATION TECHNOLOGIES LTD. 24.36 5 ZYLOG SYSTEMS LTD. 28.74 6 WIPRO TECHNOLOGIES LTD. (WIPRO TECHNOLOGIES SERVICES LTD.) 54.42 AVERAGE MARGIN 28.52 THE TPO MADE AN ADJUSTMENT OF RS.2,72,60,794/- ON A CCOUNT OF THE DIFFERENCE IN THE ARMS LENGTH PRICE OF THE INTERNATIONAL TRAN SACTION OF PROVISION OF SOFTWARE DEVELOPMENT SERVICES, AS UNDER:- OPERATION COST 1,32,565,751 ARMS LENGTH PRICE AT A MARGIN OF 28.52% 170,373,503 PRICE RECEIVED 143,112,709 105% OF THE PRICE RECEIVED 131,269,898 PROPOSED ADJUSTMENT U/S 92CA 27,260,794 THE ADJUSTMENT MADE BY THE TPO/A.O WAS UPHELD BY TH E DRP VIDE ORDER DATED 07/12/2015. 4. THE LD. AR SUBMITS THAT THE ASSESSEE IS PRAYING FOR EXCLUSION OF FOLLOWING COMPARABLES:- 4 (1) WIPRO TECHNOLOGIES LTD. (WIPRO TECHNOLOGIES SE RVICES LTD.) (2) ZYLOG SYSTEMS LTD. (3) PERSISTENT SYSTEMS AND SOLUTIONS LTD. (4) SASKEN COMMUNICATION TECHNOLOGIES LTD. (5) LARSEN & TURBO INFOTECH LTD. (6) PERSISTENT SYSTEMS LTD. 4.1 WIPRO TECHNOLOGIES LIMITED (WIPRO TECHNOLOGIES SERVICES LTD.) THE LD. AR SUBMITTED THAT THIS COMPARABLE IS NOT FU NCTIONALLY IDENTICAL WITH THE ASSESSEE COMPANY. COMPANY IS ENGAGED IN PROVIDI NG PROGRAM MANAGEMENT, THIRD PARTY DATA SECURITY, QUALITY ASSU RANCE AND BUSINESS PROCESS MANAGEMENT SERVICES. THE COMPANY IS A SOFT WARE PRODUCT COMPANY. COMPANY IN YEAR 2012 HAS LAUNCHED ITS PRODUCT IN TH E NAME OF FLOW FOR THE RETAIL SECTOR USERS. WIPRO TECHNOLOGY SERVICES LTD. , WHICH WAS EARLIER CITI TECHNOLOGY SERVICES LTD., WAS HELD BY CITI CORP. BA NKING CORPORATION, USA UPTO 20TH JANUARY, 2009. WIPRO LTD., PARENT COMPANY OF THE ASSESSEE, EXECUTED AN AGREEMENT WITH CITI GROUP INC., FOR ACQ UIRING CITI TECHNOLOGY SERVICES LTD., NOW CALLED WIPRO TECHNOLOGY SERVICES LTD. ON 21.1.2009, WIPRO LTD. SIGNED A MASTER AGREEMENT WITH CITI GROUP INC. , FOR THE DELIVERY OF TECHNOLOGY INFRASTRUCTURE SERVICES AND APPLICATION DEVELOPMENT AND MAINTENANCE SERVICES FOR THE PERIOD OF SIX YEARS, W HICH ALSO INCLUDES THE YEAR UNDER CONSIDERATION. THIS SHOWS THAT INCOME FROM SO FTWARE DEVELOPMENT SUPPORT AND MAINTENANCE SERVICES WAS EARNED BY WIPR O TECHNOLOGY SERVICES LTD., FROM CITI GROUP INC., BY MEANS OF MASTER SERV ICE AGREEMENT ENTERED INTO BETWEEN WIPRO LTD., ITS PARENT COMPANY AND CITI GRO UP INC., A THIRD PERSON. THE LD. AR RELIED ON THE DECISION OF HONBLE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF PITNEY BOWES SOFTWARE INDIA PVT. LTD. VS. I TO (ITA NO. 7066/DEL/14), WHEREIN IT WAS HELD AS UNDER: 5 14. SO FAR AS WIPRO TECHNOLOGY SERVICES LTD. IS CONCERNED, LEARNED TPO INCLUDED THIS COMPANY IN THE FINAL SET OF COMPARABL ES WITH AN OPENING PROFIT MARGIN OF 73.35%. THE OBJECTION OF THE ASSES SEE REMAINED THAT THE INFORMATION RELATED TO THE RELATED PARTIES TRANSACT IONS IS NOT AVAILABLE IN THE ANNUAL REPORT OF THE COMPANY AS AVAILABLE IN PU BLIC DOMAIN. ACCORDINGLY, THE FILTER OF RELATED PARTY TRANSACTIO NS AS PROPOSED BY THE LEARNED TPO CANNOT BE APPLIED. IT WAS FURTHER CONTENDED THAT AS PER THE INFORMATION AVAILABLE ON PUBLIC DOMAIN, THE COMPANY IS ENGAGED IN PROVIDING PROGRAM MANAGEMENT, THIRD PARTY DATA SECU RITY, QUALITY ASSURANCE AND BUSINESS PROCESS MANAGEMENT SERVICES. IT WAS SUBMITTED THAT SUBSTANTIAL BUSINESS OF THE COMPANY IS CONCENT RATED IN FINANCIAL AND BANKING SECTOR, ALSO BEING FORMERLY KNOWN AS CITI T ECHNOLOGIES SERVICES LTD. IT WAS CONTENDED FURTHER THAT IT HAS NO WHERE BEEN REPORTED THAT THE COMPANY IS ENGAGED IN PROVISIONS OF SOFTWARE DEVELO PMENT SERVICES. SEVERAL DECISIONS HAVE BEEN CITED BY THE LD. AR INC LUDING THE DECISION OF DELHI BENCH OF THE ITAT IN THE CASE OF SAPIENT CORP ORATION PVT. LTD. VS. DCIT (SUPRA), CINCON SYSTEM INDIA PVT. LTD VS. ACIT (SUPRA). TOLUNA INDIA PVT. LTD VS. ACIT (SUPRA) AND LEAR AUTOMOTIVE INDIA PVT. LTD VS. ACIT *(SUPRA) IN SUPPORT OF HIS CONTENTION THAT THE COMP ANIES ARE ENGAGED IN THE BUSINESS OF SELLING SOFTWARE PRODUCTS AND THUS IS N OT COMPARABLE FOR THE PURPOSE OF BENCHMARKING COMPANIES ENGAGED IN SOFTWA RE DEVELOPMENT SERVICES. RESPECTFULLY FOLLOWING THE DECISION OF C O-ORDINATE BENCHES OF THE ITAT, WE HOLD THAT WIPRO TECHNOLOGY SERVICES LTD. H AS BEEN WRONGLY INCLUDED BY THE ASSESSING OFFICER IN THE CASE OF T HE PRESENT ASSESSE AS COMPARABLES FOR THE PURPOSE OF BENCHMARKING THE INT ERNATIONAL TRANSACTION. 4.2. THE LD. DR SUBMITTED THAT THE COMPANY IS FUNC TIONALLY COMPARABLE AS SET OUT IN THE ORDER OF THE TPO. THE LD. DR SUBMITTED T HAT THE UPPER LIMIT TURNOVER FILTER IS NOT APPLICABLE IN THE CASE OF THE ASSESSE E. THIS COMPANY IS INVOLVED IN SOFTWARE DEVELOPMENT ACTIVITIES AND PASSES ALL THE FILTERS ALSO. 6 4.3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED TH E RECORDS. THIS COMPANY IS ENGAGED IN PROVIDING PROGRAM MANAGEMENT, THIRD PART Y DATA SECURITY, QUALITY ASSURANCE AND BUSINESS PROCESS MANAGEMENT SERVICES. THE COMPANY IS A SOFTWARE PRODUCT COMPANY. COMPANY IN YEAR 2012 HAS LAUNCHED ITS PRODUCT IN THE NAME OF FLOW FOR THE RETAIL SECTOR USERS. BUT THE ASSESSEE COMPANY IS NOT A SOFTWARE PRODUCT COMPANY, IT IS UNDERTAKING SOFTW ARE DEVELOPMENT AND INSTALLATION OF COMPUTERIZED SYSTEMS, CONDUCT STUDI ES, SYSTEMS ANALYSIS AND DESIGN AS WELL AS DESIGN OF SPECIAL SOFTWARE AND SY STEM AND APPLICATION OF SOFTWARE. THE ASSESSEE IS ALSO ENGAGED IN RENDERING TECHNICAL SERVICES RELATED TO TABULATION, CODING AND SOFTWARE DEVELOPMENT AS WELL AS EXPORT OF SOFTWARE AND OTHER COMPUTER RELATED ACTIVITIES TO CARRY OUT DEVE LOPMENT IN THE AREA OF INFORMATION TECHNOLOGY. THERE IS DIFFERENCE BETWEEN SOFTWARE PRODUCT AND UNDERTAKING SOFTWARE DEVELOPMENT. A PRODUCT IS OUTC OME OF RESEARCH AND DEVELOPMENT BUT A DEVELOPMENT IS ONE STAGE PRIOR TO PRODUCT. DEVELOPMENT MIGHT SOMETIME STOP AT THE RESEARCH STAGE TO OFFER SOLUTIONS TO INFORMATION TECHNOLOGY INDUSTRIES PROBLEMS. IN ASSESSEES CASE IT IS UNDERTAKING SOFTWARE DEVELOPMENT WHICH IS MORE OF AN EVENT CONSTITUTING A NEW STAGE IN A CHANGING SITUATION, THAN A COMPLETE PRODUCT. THEREFORE, WIPRO TECHNOLOG IES LTD. IS FUNCTIONALLY DIFFERENT FROM THE ASSESSEE COMPANY AN D SHOULD HAVE BEEN EXCLUDED BY THE TPO. WE THEREFORE, DIRECT TPO TO EX CLUDE THIS COMPARABLE. 4.4 ZYLOG SYSTEMS LTD. THE LD. AR SUBMITTED THAT EXTRA-ORDINARY EVENT OCCU RRED DURING THE YEAR AS THE COMPANY HAS ACQUIRED M/S. BRAINHUNTER INC, CANA DA. THE LD. AR RELIED ON THE FOLLOWING DECISIONS, WHEREIN THE VARIOUS BEN CHES OF TRIBUNAL HAVE CONSISTENTLY TAKEN A VIEW TO EXCLUDE COMPANIES HAVI NG EXTRA-ORDINARY EVENT DURING THE YEAR UNDER CONSIDERATION. THE LD. AR RE LIED ON THE FOLLOWING DECISIONS OF TRIBUNALS: COGNIZANT TECHNOLOGY SERVICES PVT. LTD. VS. ACIT (I TA NO. 2106 & 1864/HYD./2011) CAPITAL IQ INFORMATION SYSTEMS (INDIA) PVT. LTD. ( ITA NO.1961/HYD/2011) 7 STREAM INTERNATIONAL (ITA NO.8997/MUM/2010) CRM SERVICES ITA NO. 4068/DEL/2009 MARKET TOOLS RESEARCH PVT. LTD. VS. DCIT (ITA NO. 1811 /HYD/2012) INTOTO SOFTWARE INDIA PVT. LTD. VS. ACIT (ITA NO.1 196/HYD/2010) M/S NTT DATA INDIA ENTERPRISE VS. ACIT (ITA NO. 16 12/HYD/2010) CALIBRATED HEALTHCARE SYSTEMS INDIA PVT. LTD. VS. ACIT TOLUNA INDIA PVT. LTD. VS. ACIT (ITA NO.5645/DEL/2 011) LEAR AUTOMOTIVE INDIA P. LTD. VS. ACIT (ITA NO. 56 12/DEL/2011) AND GLOBAL LOGIC INDIA PVT. LTD. VS. ACIT (ITA NO. 580 9/DEL/2011) THE LD. AR FURTHER SUBMITTED THAT THE SEGMENTAL DAT A WAS NOT AVAILABLE FOR THE ASSESSMENT YEAR UNDER QUESTION. THE COMPANY IS EARNING REVENUE FROM TWO BUSINESS SEGMENTS, NAMELY, SOFTWARE SERVICES AN D SOFTWARE PRODUCTS. HOWEVER, SEGMENTAL DATA WITH RESPECT TO THE AFORESA ID TWO SEGMENTS IS NOT AVAILABLE IN THE FINANCIAL STATEMENT. THE LD. AR RE LIED UPON THE FOLLOWING DECISIONS, WHEREIN, THE TRIBUNAL DIRECTED TO EXCLUD E A COMPANY ON ACCOUNT OF NON-AVAILABILITY OF SEGMENTAL DATA: I. VODAFONE INDIA SERVICES VS. DCIT ((ITA NO. 7140 & 7 097/MUM/2012) II. MACQUARIE GLOBAL SERVICES (P.) LTD (ITA 6803/DELHI/2013) 4.5. THE LD. DR SUBMITTED THAT THE COMPANY IS FUNCT IONALLY COMPARABLE AS SET OUT IN THE ORDER OF THE TPO. THE LD. DR SUBMITT ED THAT THE UPPER LIMIT TURNOVER FILTER IS NOT APPLICABLE IN THE CASE OF TH E ASSESSEE. THIS COMPANY IS INVOLVED IN SOFTWARE DEVELOPMENT ACTIVITIES AND PAS SES ALL THE FILTERS ALSO. 4.6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS. THE SEGMENTAL DATA WAS NOT AVAILABLE FOR THE ASSESSMENT YEAR UNDER QUESTION OF THIS COMPANY. THE COMPANY IS EARNING REVENUE FROM TWO BU SINESS SEGMENTS, NAMELY, SOFTWARE SERVICES AND SOFTWARE PRODUCTS. HO WEVER, SEPARATE SEGMENTAL DATA WITH RESPECT TO THE AFORESAID TWO SE GMENTS IS NOT AVAILABLE IN THE FINANCIAL STATEMENT. THE ASSESSEE COMPANY CANNO T BE COMPARE WITH THIS COMPANY AS THERE IS NOT SEGMENTAL DATA AVAILABLE. BESIDES, THIS THERE WAS EXTRA-ORDINARY EVENTS OCCURRED DURING THE YEAR AS T HE COMPANY HAS ACQUIRED M/S. BRAINHUNTER INC., CANADA. THUS, AS HELD BY TH IS TRIBUNAL IN VARIOUS DECISIONS COMPANIES HAVING EXTRA-ORDINARY EVENT HAS TO BE EXCLUDED. 8 THEREFORE, WE DIRECT TPO TO EXCLUDE THIS COMPANY FR OM COMPARABLES. 4.7 PERSISTENT SYSTEMS & SOLUTIONS LTD. THE LD. AR SUBMITTED THAT THE COMPANY IS 'FUNCTIONALLY NOT COMPARABLE BECAUSE OF THE INCOMPARABLE FINANCIAL RESULTS ARISI NG OUT OF THE EXCEPTIONAL CIRCUMSTANCES IN THE FINANCIAL YEAR ENDING ON 31ST MARCH, 2011. THE LD. AR SUBMITTED THAT THE COMPANY IS EARNING ABNORMAL PROF ITS DURING THE FINANCIAL YEAR 2010-11 ON THE BASIS OF BELOW FACTS: YEAR 2009 2010 2011 NET PROFIT 83,58,124 70,40,403 2,44,02,141 SALES (IN CRORES) 3.52 6.70 19 DURING THE YEAR ENDING 2011, THE TURNOVER OF THE CO MPANY INCREASED BY 184%, I.E. FROM RS. 6,67,28,828 TO RS. 18,94,90,457 FROM THE PRECEDING YEAR. FURTHER, THE NET PROFIT OF THE COMPANY INCREASED BY 247%, I. E., FROM RS. 70,40,403 TO RS. 2,44,02,141. THE LD. AR RELIED UPON THE RECENT DECISION OF DELHI BENCH OF THE TRIBUNAL IN THE CASE OF ACIT VS. TRANSCENT MT S ERVICES PVT. LTD. (ITA NO. 2148/DEL/2013), WHEREIN, THE TRIBUNAL DIRECTED TO EXCLUDE A COMPANY ON ACCOUNT OF ABNORMAL YEAR OF OPERATION: 12. WE HAVE PERUSED ALL THE RECORDS AND TAKEN INTO CONSIDERATION THE CONTENTIONS OF THE PARTIES AS RELATES TO REVENUES APPEAL THE SAME IS ONLY ON THE ISSUE THAT EXCLUSION OF MOLD-TEK TECHNOLOGIE S LTD AS COMPARABLE BY THE CIT(A) IS NOT JUST AND PROPER BUT WHEN WE TAKE INTO ACCOUNT, THE SPECIAL BENCH JUDGMENT IN CASE OF MOLD-TEK GLOBAL CENTRE IN DIA PVT. LTD IT CAN CLEARLY BE TAKEN INTO ACCOUNT THAT THE COMPANY GREW WITH A COMPOUNDED ANNUAL GROWTH RATE (CAGR) OF 147% FOR 3 YEARS WHICH IS EVIDENT FROM THE CHART GIVEN IN THE IMPUGNED ORDER OF THE LD.CIT(A) AND ON THE BASIS OF THE SAID CHART, CIT(A) HAS RIGHTLY REJECTED MOLD-TEK AS COMPARABLE COMPANY DUE TO THE CONSISTENTLY ABNORMAL PROFITS EARNED BY THE COMPANY. THE CIT(A) BY DECIDING THIS ISSUE HAS STUDIED ANNUAL REPORT OF THE COMPANY AND FOUND THAT THERE WERE SEVERAL IRREGULARITIES IN THE FINAN CIAL STATEMENTS. WHEN WE LOOK INTO ALL THESE ASPECT, WE FIND THAT THE CIT(A) WAS CORRECT IN EXCLUDING MOLD-TEK TECHNOLOGIES LTD. AS COMPARABLE AND HENCE THE REVENUE IS NOT 9 PROPER IN HARPING THAT MOLD-TEK HAS TO BE TAKEN INT O ACCOUNT AS A COMPARABLE IN TP STUDY. AS REGARDS TO THE CROSS-OBJ ECTION OF THE ASSESSEE IS CONCERNED THE LD. A.R DURING THE COURSE OF HEARING STATED THAT THE SAME MAY BE TREATED AS NOT PRESSED IF THE APPEAL OF THE DEPARTMENT IS DISMISSED. SINCE IN THE FORMER PART OF THE ORDER, WE HAVE DISM ISSED THE APPEAL OF THE DEPARTMETN, THE CROSS OBJECTION OF THE ASSESSEE WHI CH MAINLY SUPPORTS THE IMPUGNED ORDER OF THE CIT(A) IS DISMISSED AS NOT PR ESSED. THE LD. AR ALSO RELIED ON THE FOLLOWING DECISIONS O F VARIOUS BENCHES OF THE TRIBUNAL WHEREIN COMPANY HAVING HIGH PROFITS DUE TO ABNORMAL REASONS WAS DIRECTED TO BE EXCLUDED FROM THE FINAL SET OF COMPARABLE COMPANIES:- MAERSK GLOBAL CENTRE INDIA PVT. LTD. VS. ACIT (ITA NO. 7466/MUM/2012) BIND VIEW INDIA PVT. LTD. VS. DCIT : ITA NO. 1501/P N/2011 SAP LABS INDIA PVT LTD VS ACIT (ITA NO 418/BANG/200 8) ADOBE SOFTWARE INDIA PVT LTD VS ADDL. CIT (ITA NO 4 061/DEL/2010) QUARK SYSTEM VS. DCIT - ITA NO.100/CHD/2009 FROST AND SULLIVAN INDIA PVT. LTD. - ITA NO.2073/MU M/2010 MENTOR GRAPHICS (NOIDA) PVT LTD VS DCIT (ITA NO 196 9/D/2006) SAPIENT CORPORATION PVT LTD VS DCIT (ITA NO 5263/DE L/2010) ACIT VS. NIT LIMITED (ITA NO. 1844/DEL/2009 SYMANTEC SOFTWARE SOLUTIONS PVT. LTD VS. ACIT 4.8. THE LD. DR RELIED UPON THE ORDER OF THE TPO AN D THE DRP. 4.9. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS. THE COMPANY IS FUNCTIONALLY NOT COMPARABLE BECAUSE OF THE INCOM PARABLE FINANCIAL RESULTS ARISING OUT OF THE EXCEPTIONAL CIRCUMSTANCES IN THE FINANCIAL YEAR ENDING ON 31ST MARCH, 2011 AS POINTED OUT BY THE LD. AR. THE LD. DR COULD NOT REFUTE THE SUBMISSIONS OF THE LD. AR AS THE DOCUMENTS/TP S TUDY REVEALS THE SAME ON RECORD. IN FACT, THE COMPANY IS EARNING ABNORMAL PR OFITS DURING THE FINANCIAL YEAR 2010-11. THEREFORE, THIS COMPANY IS NOT COMPAR ABLE WITH THE ASSESSEE COMPANY. THUS, WE DIRECT TPO TO EXCLUDE THIS COMPAN Y AS COMPARABLE. 4.10 SASKEN COMMUNICATION TECHNOLOGIES LTD. 10 THE LD. AR SUBMITTED THAT AS REGARDS THIS COMPANY T HERE IS NON-AVAILABILITY OF DATA WISE INFORMATION OF SEGMENTS WITH RESPECT TO S OFTWARE DEVELOPMENT SERVICES IN THE ANNUAL REPORT. THE LD. AR RELIED UP ON THE CASE OF SAXO INDIA PVT. LTD VS. ACIT (ITA NO. 6148/DEL/2015) WHEREBY TRIBUNAL DIRECTED TO EXCLUDE THE AFORESAID COMPANY ON ACCOUNT OF UNAVAIL ABILITY OF SEGMENTAL DATA WITH RESPECT TO SOFTWARE DEVELOPMENT SEGMENT, AS UN DER:- 15.2 CONSIDERING THE RIVAL SUBMISSIONS, WE FIND FR OM PAGE 58 OF THE TPOS ORDER THAT HE HAS RECOGNIZED SALE OF SOFTWARE PRODU CTS TO THE TUNE OF RS. 37 CRORE AND ODD. THOUGH THE BREAK-UP OF REVENUE FROM SOFTWARE SERVICES PRODUCTS IS AVAILABLE, BUT, THE BREAK-UP OF OPERATI NG COSTS AND REVENUES FROM THESE TWO SEGMENTS HAVE NOT BEEN GIVEN. IT IS FURTHER OBSERVED THAT THE TPO HAS TAKEN ENTITY LEVEL FIGURES FOR THE PURP OSES OF MAKING COMPARISON. SINCE SUCH ENTITY LEVEL FIGURES CONTAIN REVENUE FROM BOTH SOFTWARE SERVICES AND SOFTWARE PRODUCTS, AS AGAINST THE ASSESSEE ONLY PROVIDING SOFTWARE SERVICES, WE ARE DISINCLINED TO TREAT THIS COMPANY AS COMPARABLE. THE ASSESSEES CONTENTION IS ACCEPTED ON THIS ISSUE. THE LD. AR ALSO RELIED UPON THE DECISION OF DELHI B ENCH OF THE TRIBUNAL IN THE CASE OF MOTOROLA SOLUTIONS INDIA PRIVATE LIMITED VS . ACIT (ITA 5637/DEL/2011), WHEREIN, THE COMPANY WAS REJECTED O N ACCOUNT OF SIGNIFICANT INTANGIBLES IN THE FORM OF SASKEN BRANDED PRODUCTS AND EXCEPTIONAL YEAR OF OPERATION, THE RELEVANT EXTRACT OF WHICH IS REPRODU CED AS UNDER: WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAVE PERUSED THE RECORD OF THE CASE. THE TPO HAS COMPLETELY IGNORED THE EXTRAORDINARY BU SINESS CIRCUMSTANCES POINTED OUT BY ASSESSEE FOR WHICH NECESSARY ADJUSTM ENT WAS REQUIRED TO BE MADE IN ACCORDANCE WITH RULE 10B(3) OF INCOME TA X RULES. HOWEVER, SINCE THIS ADJUSTMENT WAS NOT POSSIBLE, THEREFORE, THIS COMPANY SHOULD NOT HAVE BEEN INCLUDED IN THE LIST OF COMPARABLES. FURT HER, WE FIND THAT THE COMPANY OWNS IPR AND HAS BRANDED PRODUCTS WHICH ALS O DISTINGUISHES IT FROM THE ASSESSEE AND, THEREFORE, KEEPING IN VIEW T HE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF AGNITY INDIA TECHNO LOGIES PVT. LTD. (SUPRA), 11 WE DIRECT THE ID. TPO TO EXCLUDE THIS COMPARABLE FR OM THE LIST OF COMPARABLES. 4.11. THE LD. DR RELIED UPON THE ORDER OF THE TPO A ND THE DRP. 4.12. WE HAVE HEARD BOTH THE PARTIES AND PERUSED TH E RECORDS. THE FINDINGS AND REASONING GIVEN IN TRIBUNALS ORDERS IN CASE OF SAXO INDIA PVT. LTD VS. ACIT (ITA NO. 6148/DEL/2015) AND MOTOROLA SOLUTIONS INDIA PRIVATE LIMITED VS. ACIT (ITA 5637/DEL/2011) ARE APPLICABLE TO ASSESSEES CA SE. THIS COMPANY IS HAVING EXTRA-ORDINARY BUSINESS CIRCUMSTANCES DURING THE YE AR AS WELL AS THERE IS NO SEGMENTAL BIFURCATION AS RELATES TO SOFTWARE SERVIC ES AND SOFTWARE PRODUCT AVAILABLE. THEREFORE, THIS COMPANY SHOULD BE EXCLU DED FROM THE COMPARABLES. THUS, WE DIRECT THE TPO TO EXCLUDE THIS COMPARABLE. 4.13 LARSESN & TURBO INFOTECH LTD. THE LD. AR SUBMITTED THAT THIS COMPANY IS ENGAGED I N TWO BUSINESS SEGMENTS, NAMELY, SOFTWARE DEVELOPMENT SERVICES AND SOFTWARE PRODUCTS. HOWEVER, SEGMENTAL DATA WITH RESPECT TO BUSINESS SEGMENT IS NOT AVAILABLE IN THE ANNUAL REPORT OF THE COMPANY. FROM THE AUDITED FINANCIAL STATEMENT AND WEBSITE, IT IS EVIDENT THAT THE COMPANY IS EARNING REVENUE FROM TW O BUSINESS SEGMENTS, VIZ., SOFTWARE DEVELOPMENT AND SOFTWARE PRODUCT. THE LD . AR RELIED UPON THE DECISION OF DELHI BENCH OF THE TRIBUNAL IN THE CASE OF SAXO INDIA PVT. LTD. VS. ACIT (ITA NO. 6148/DEL/2015), WHEREIN, L&T INFOTECH LTD. WAS DIRECTED TO BE EXCLUDED HOLDING THAT THE COMPANY IS ALSO ENGAGED I N BUSINESS OF SOFTWARE PRODUCT AND SEGMENTAL INFORMATION IS NOT AVAILABLE. RELEVANT EXTRACT OF THE ORDER IS REPRODUCED AS UNDER: 12.2. HAVING REGARD TO THE RIVAL SUBMISSIONS AND P ERUSAL OF THE RELEVANT MATERIAL ON RECORD, WE FIND FROM THE ANNUAL REPORT OF THIS COMPANY, WHICH IS AVAILABLE IN THE THIRD PAPER BOOK THAT ITS PROFIT A ND LOSS ACCOUNT SHOWS REVENUE - REVENUE SOFTWARE DEVELOPMENT SERVICES AND PRODUCTS . PROFIT AND LOSS ACCOUNT OF THIS COMPANY HAVING A LIST OF S OFTWARE DEVELOPMENT 12 EXPENSES CONTAINS AN ITEM 'COST OF BOUGHT-OUT ITEMS FOR RE-SALE WITH A VALUE OF RS. 25.55 CRORE. APART FROM THAT, THE BALANCE-SH EET OF THIS COMPANY SHOWS CERTAIN 'SOFTWARE IN ITS SCHEDULE OF FIXED ASSETS UNDER THE HEAD 'INTANGIBLE ASSETS. THE ABOVE FACTS CONCLUSIVELY PROVE THAT TH IS COMPANY IS ALSO ENGAGED IN THE SALE OF PRODUCTS APART FROM RENDERIN G SOFTWARE DEVELOPMENT SERVICES. ADOPTING THE SAME REASONS AS GIVEN FOR TH E EXCLUSION OF EINFOCHIPS LTD., WE ORDER FOR THE EXCLUSION OF THIS COMPANY AS WELL. 4.14. THE LD. DR RELIED UPON THE ORDERS OF THE TPO AND DRP 4.15. WE HAVE HEARD BOTH THE PARTIES AND PERUSED TH E MATERIAL AVAILABLE ON RECORD. THIS COMPANY IS ENGAGED IN TWO BUSINESS SEGMENTS, NAMELY, SOFTWARE DEVELOPMENT SERVICES AND SOFTWARE PRODUCTS. HOWEVER , SEGMENTAL DATA WITH RESPECT TO BUSINESS SEGMENT IS NOT AVAILABLE IN THE ANNUAL REPORT OF THE COMPANY. FROM THE AUDITED FINANCIAL STATEMENT AND WEBSITE, I T IS EVIDENT THAT THE COMPANY IS EARNING REVENUE FROM TWO BUSINESS SEGMENTS, VIZ. , SOFTWARE DEVELOPMENT AND SOFTWARE PRODUCT. THEREFORE, THIS COMPANY SHOULD BE EXCLUDED FROM THE COMPARABLES. THUS, WE DIRECT THE TPO TO EXCLUDE THI S COMPARABLE. 4.16. PERSISTENT SYSTEMS LTD. THE LD. AR SUBMITTED THAT THE COMPANY IS ENGAGED IN THE BUSINESS OF SOFTWARE PRODUCTS SUCH AS PAXPROJ. THUS THIS COMPANY IS NOT COMPARABLE. THE LD. AR RELIED ON THE VARIOUS DECISIONS SAXO INDIA PVT. LTD . VS. ACIT (ITA NO. 6148/DEI/2015) AS WELL AS THE TRIBUNAL SPECIFICAL LY HELD THAT PERSISTENT SYSTEMS LIMITED IS ENGAGED IN PRODUCT DEVELOPMENT, PRODUCT DESIGN AND ANALYSIS SERVICE IS FUNCTIONALLY DIFFERENT FROM A P URE SOFTWARE SERVICE PROVIDER AND THEREFORE OUGHT TO BE EXCLUDED: 14.2 AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERUSING THE RELEVANT MATERIAL ON RECORD, WE FIND FROM PROFIT & LOSS ACCO UNT OF THIS COMPANY, A COPY OF WHICH IS PLACED AT PAGE 1534 OF THE PAPER B OOK, THAT ITS INCOME FROM SALE OF SOFTWARE SERVICES AND PRODUCTS IS AM OUNTING TO RS.6101.27 MILLIONS. THE TPO HAS HIMSELF OBSERVED THAT THIS CO MPANY DOES HAVE SOME 13 PRODUCTS, BUT, PRODUCT REVENUE IS ONLY 7.2% AND, HE NCE, THIS COMPANY IS PREDOMINANTLY A SOFTWARE SERVICE PROVIDER. THIS DIS CUSSION IS CONTAINED IN PARA 21.67 OF THE TPOS ORDER. EVEN SCHEDULE-11 TO THE PROFIT & LOSS ACCOUNT ALSO SHOWS SALE OF SOFTWARE SERVICES AND P RODUCTS. THIS SHOWS THAT THIS COMPANY IS ENGAGED IN BOTH RENDERING SOFT WARE DEVELOPMENT SERVICES AS WELL AS SALE OF SOFTWARE PRODUCTS. ALBE IT THE PERCENTAGE OF SOFTWARE PRODUCTS IN THE TOTAL REVENUE IS LESS, AS HAS BEEN NOTED BY THE TPO, YET, WE ARE INCLINED TO TAKE IT AS NON-COMPARA BLE BECAUSE THERE IS NO PRECISE INFORMATION ABOUT THE CONTRIBUTION MADE BY SUCH SMALL SALE OF SOFTWARE PRODUCTS TO THE TOTAL PROFIT OF THE COMPAN Y. AS NO SEGMENTAL INFORMATION IS AVAILABLE IN RESPECT OF THIS COMPANY AND THE FIGURES HAVE BEEN ADOPTED BY THE TPO AT ENTITY LEVEL, WE, THEREF ORE, ORDER FOR THE EXCLUSION OF THIS COMPANY FROM THE LIST OF COMPARAB LES. 4.17. THE LD. DR RELIED UPON THE ORDER OF THE TPO A ND DRP 4.18. WE HAVE HEARD BOTH THE PARTIES AND PERUSED TH E MATERIAL AVAILABLE ON RECORD. PERSISTENT SYSTEMS LIMITED IS ENGAGED IN PRODUCT DEVELOPMENT, PRODUCT DESIGN AND ANALYSIS SERVICE IS FUNCTIONALLY DIFFERE NT FROM A PURE SOFTWARE SERVICE PROVIDER AND THEREFORE OUGHT TO BE EXCLUDED . THUS, THIS COMPANY IS FUNCTIONALLY DIFFERENT FROM THAT OF ASSESSEE COMPAN Y. THEREFORE, THIS COMPANY SHOULD BE EXCLUDED FROM THE COMPARABLES. THUS, WE D IRECT THE TPO TO EXCLUDE THIS COMPARABLE. 5. THE LD. AR SUBMITTED THAT CAT TECHNOLOGIES LTD., CG-VAK SOFTWAE & EXPORTS LTD. AND CHAKKILAM INFOTECH LTD. SHOULD HA VE BEEN INCLUDED AS COMPARABLE WHICH WAS REJECTED BY THE TPO AS THESE C OMPANIES ARE FUNCTIONALLY COMPARABLE WITH THE ASSESSEE COMPANY. AFTER UNDERTA KING THE AFORESAID ANALYSIS, THE AVERAGE OPERATING PROFIT TO COST RATI O OF THE REMAINING COMPANIES WORKS OUT TO 2.25%, AS UNDER:- 14 S. NO. COMPANY NAME OP/OC (%) 1 CAT TECHNOLOGIES LTD. 1.90% 2 CG - VAK SOFTWARE & EXPORTS LTD. - 2.28% 3 CHAKKILAM INFOTECH LTD. 7.13% AVERAGE 2.25% SINCE, THE OPERATING PROFIT MARGIN OF THE ASSESSEE COMPANY AT 7.99% IS HIGHER THAN THE AVERAGE OPERATING PROFIT MARGIN OF THE FIN AL COMPARABLE COMPANIES AT 2.25%, THEREFORE, THE INTERNATIONAL TRANSACTION OF PROVISION OF SOFTWARE DEVELOPMENT SERVICES UNDERTAKEN BY THE ASSESSEE OUG HT TO BE CONSIDERED TO BE AT ARMS LENGTH PRICE. 5.1 CAT TECHNOLOGIES LTD. THE LD. AR SUBMITTED THAT AS PER THE WEBSITE 'S' AN D ANNUAL REPORT, THE COMPANY IS ENGAGED IN THE BUSINESS OF PROVIDING SOF TWARE DEVELOPMENT SERVICES TO ITS CUSTOMER. THE TPO WRONGLY REJECTED THE COMPA NY IN THE SHOW CAUSE NOTICE HOLDING THAT IT IS ENGAGED IN ITES BUSINESS. 5.2 THE LD. DR SUBMITTED THAT THE TPO HAS RIGHTLY R EJECTED THIS COMPARABLE AS THE FUNCTIONAL PROFILE OF THE COMPANY IS DIFFERE NT FROM THAT OF THE ASSESSEE COMPANY. 5.3 WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS. FROM THE ANNUAL REPORT OF THIS COMPANY IT IS CLEARLY OFFERIN G TECHNOLOGY PRODUCTS AND SERVICES WHICH IS SET OUT IN OUTLOOK OF THE COMPANY . THE RECORDS DO NOT GIVE THE SEGMENTAL BREAKUPS OF THE SOFTWARE SERVICE AND SOFT WARE PRODUCTS. THEREFORE, THIS COMPANY IS NOT FULFILLING THE CRITERIA OF THE COMPARABLE FOR ARMS LENGTH PRICE. THUS, WE REJECT THIS COMPANY AS COMPARABLE. 5.4. CG-VAK SOFTWARE & EXPORTS LIMITED THE LD. AR SUBMITTED THAT THE COMPANY IS ENGAGED IN BUSINESS SEGMENTS, 15 NAMELY, SOFTWARE SERVICES AND BPO SERVICES. SEGMENT AL DETAILS WITH RESPECT TO THESE TWO SEGMENTS ARE ALSO AVAILABLE IN THE AUDITE D FINANCIAL STATEMENT. THE COMPANYS EMPLOYEE COST TO TOTAL COST RATIO DURING THE RELEVANT PREVIOUS YEAR WORKS OUT TO 69.45% WHICH SATISFIES EMPLOYEE COST F ILTER. 5.5. THE LD. DR SUBMITTED THAT THE DRP HELD THAT TH ERE IS DECLINE IN THE PROFITABILITY OF THE COMPANY. THE COMPANY IS NOT SH OWING EMPLOYEE COST AS SEPARATE HEAD OF EXPENSES AND IS INCLUDED IN COST O F SERVICES. 5.6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS. THE ANNUAL REPORT OF THE COMPANY CLEARLY SETS THAT THIS COMPAN Y IS DEALING WITH SOFTWARE DEVELOPMENT, PRODUCT & SERVICES AND THERE IS NO SEG MENTAL DATA AVAILABLE FOR SOFTWARE DEVELOPMENT, PRODUCT AND SERVICES. THUS, T HE COMPANY IS NOT ONLY FUNCTIONALLY DIFFERENT BUT ALSO SEGMENTAL DATA IS N OT AVAILABLE. THEREFORE, THIS COMPANY IS NOT FULFILLING THE CRITERIA OF THE COMPA RABLE FOR ARMS LENGTH PRICE. THUS, WE REJECT THIS COMPANY AS COMPARABLE. 5.7 CHAKKILAM INFOTECH LIMITED THE LD. AR SUBMITTED THAT THE COMPANY IS ENGAGED IN THE BUSINESS OF PROVIDING SOFTWARE DEVELOPMENT SERVICES AND ACCORDINGLY, FUNC TIONALLY COMPARABLE TO THE ASSESSEE COMPANY. THERE IS AUDITED FINANCIAL STATEM ENT IS ALSO AVAILABLE FOR THIS COMPANY. 5.8. THE LD. DR SUBMITTED THAT THE TPO RIGHTLY REJE CTED THIS AS COMPARABLE BECAUSE THERE IS NON-AVAILABILITY OF THE DATA. 5.9 WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS. THE ANNUAL REPORT OF THE COMPANY CLEARLY SETS THAT THIS COMPAN Y IS DEALING WITH SOFTWARE TESTING, SOFTWARE DEVELOPMENT SERVICES AND HEALTHCA RE SERVICES AND THERE IS NO SEPARATE SEGMENTAL DATA AVAILABLE FOR SOFTWARE DEVE LOPMENT SERVICES. THUS, THE COMPANY IS NOT ONLY FUNCTIONALLY DIFFERENT BUT ALSO SEGMENTAL DATA IS NOT AVAILABLE. THEREFORE, THIS COMPANY IS NOT FULFILLIN G THE CRITERIA OF THE COMPARABLE 16 FOR ARMS LENGTH PRICE. THUS, WE REJECT THIS COMPAN Y AS COMPARABLE. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. GROUND NO. 1 IS GENERAL THEREFORE, THE SAM E IS NOT ADJUDICATED. GROUND NO. 2, 2.1, 2.2, 2.3, 2.4 AND 2.5 ARE RELATI NG TO EXCLUSION AND INCLUSIONS OF THE COMPARABLES BY THE TPO. THE EXCLU SION AND INCLUSIONS OF THE COMPARABLES GIVEN BY THE LD. AR ARE FUNCTIONALLY DI FFERENT THAN ASSESSEE COMPANY, IN SOME CASES THERE IS NO SEGMENTAL DATA A VAILABLE FOR SOFTWARE DEVELOPMENT SERVICES AS WELL AS THERE ARE CERTAIN E XTRA-ORDINARY EVENTS OCCURRED DURING THE YEAR IN SOME OF THE COMPARABLES . THE REASONS FOR EACH COMPARABLES ARE GIVEN HEREINABOVE PARAS. THUS, ALL THE COMPARABLES ARE EXCLUDED BY US. THEREFORE, THERE REMAINS NO COMPARA BLE FOR TP STUDY. HENCE, THE MATTER IS REMANDED BACK TO ASSESSING OFFICER /T PO TO DECIDE AFRESH BY GIVING NEW SET OF COMPARABLES WHICH ARE FUNCTIONALL Y SIMILAR TO THE ASSESSEE COMPANY AND THE SEGMENTAL DATA INCLUDING OTHER FILT ERS OF THE TPO ARE MET WITH. NEEDLESS TO SAY, THE ASSESSEE WILL PROVIDE TH E NEW SET OF COMPARABLES WHICH WILL BE VERIFIED BY THE TPO AND THEREAFTER AD JUDICATE THE ISSUES AT LENGTH. THUS, GROUND NO. 2, 2.1, 2.2, 2.3, 2.4 AND 2.5 ARE PARTLY ALLOWED FOR STATISTICAL PURPOSE. AS RELATES GROUND NO. 3, THE SAME IS CONSE QUENTIAL, SINCE THE MATTER IS REMANDED BACK TO THE FILE OF TPO/AO, THE SAME DO NOT REQUIRE ADJUDICATION AND BE DECIDED BY THE TPO/AO. 17 7. IN RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH NOVEMBER, 2017 . SD/ - SD/- (R. S. SYAL) (SUCHITRA KAMBLE) VICE PRESIDNET JUD ICIAL MEMBER DATED: 13/11/2017 R. NAHEED * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE 1. DRAFT DICTATED ON 28/08/2017 PS 2. DRAFT PLACED BEFORE AUTHOR 28/08/2017 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER .2017 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE PS/PS 18 SR.PS/PS 1 3 .11.2017 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 1 3 .11.2017 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.