Magma Design Automation India Private Limited, Bangalore V. ACIT, Bangalore

ITA 1214/BANG/2011

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9424 (ITAT-BANGALORE)
• Duration Of Justice: 4 year(s) 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-08-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 26-07-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 07-12-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Transfer pricing; Opportunity of being heard; International transaction
• Section: 92C; 143(3); 234B; 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRI BUNAL BANGALORE BENCH B, BANGALORE BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER ITA NO.1214(BANG) 2011 (ASSESSMENT YEAR : 2007-08) M/S MAGMA DESIGN AUTOMATION INDIA PVT. LTD., JUPITER (2A) BLOK, 2 ND FLOOR, PRESTIGE TECH PARK, SARAJAPUR, MARATHAHALLI RING ROAD, KADABEESANAHALLI VILLAGE, MANGALORE-560 103 PAN NO.AADCM4542M APPELLANT VS THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-12(1),, MANGALORE RE SPONDENT ASSESSEE BY : SHRI NAGESHWAR RAO, ADVOCATE REVENUE BY : MISS. NEERA MALHOTRA, CIT-DR DATE OF HEARING : 26-07-2016 DATE OF PRONOUNCEMENT : 2 9-08-2016 O R D E R PER SHRI A.K.GARODIA, AM THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE ASSESSMENT ORDER DATED 23-09-2011 PASSED BY THE AO U/S 143(3) R.W.S. 144C OF THE IT ACT, 1961 AS PER THE DIRECTIONS OF THE DRP. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS; BASED ON THE FACTS AND CIRCUMSTANCES OF THE CASE A ND IN LAW , MAGMA DESIGN AUTOMATION INDIA P R I VATE LIMITED ('MAG M A INDIA' OR THE ' COMPANY' OR THE 'APPE L LANT ' ) R ESPECTFUL L Y CRAVES LEAVE TO PREFER AN A PP EAL U N D ER SECTION 253 OF THE INCOME-TAX ACT , 1961 ( ' ACT ' ) AGAINST THE ORDER PASSED BY ASSISTA N T COMMISSIONER OF INCOME-TAX-12(I) ('AO ' ) IN PURSUANCE OF THE DIRECTIONS ISSUED BY D I SPUTE RESO L UTION PANE L ( ' DRP ' ) , BANGALORE DATED 22 ITA NO. 1214(BANG)2011 2 AUGUST 2011 ION THE FOLLOWING GROUNDS: G E N E R A L 1. T H E ORDER OF THE LEARNED AO AND DIRECTION S OF THE HON'BLE DRP ARE BASED ON INCORRECT INTERPRETATION OF LAW AND THEREF ORE ARE BAD IN LAW. 2. O N T H E FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW AND BASED ON THE DIRECTIONS OF DRP , THE L EARNED AO ERRED IN ASSESSING THE TOTAL INCOME AT RS . 5 , 80 , 49 , 828 AS AGAINST RETURNED INCOME OF RS.2,32 , 78,452 / - COMPUTED BY THE APPELLANT. CORP O RAT E T AX M A T TERS 3. O N THE FACT S AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW AND BASED ON THE DIRECTIONS OF HON ' B L E DRP , THE LEARNED AO E R RED IN HO L DING THAT THE TELECOMMUNICATION EXPENSES (I.E . LEASED L INE CHARGES) AMOUNTING TO R S . 35 , 41 , 839 IS ATTRIBUTABLE TO THE DE L IVERY OF COMPUTE R SOF T WARE OUTSIDE INDIA SHOU L D BE REDUCED FROM EXPO R T TURNOVER WHI L E COMPUT I NG THE D E D UCTION UNDER SECTIO N 1 OA OF THE ACT 4. ON T H E FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN L AW AND BASED ON THE DIRECTIONS OF HO N ' B L E DRP , THE L EARNED AO E R RED IN HOLDING THAT TRAVEL EXPENSES AMOUNT TO R S . 1 , 33,99 , 313 INCURRED IN FOREIGN CURRE N CY IS FOR PROVIDING TECHNICA L SERVICES RENDERED OUTS I DE INDIA AND HENCE SHOULD BE REDUCED FROM EXPORT TURNOVER WHILE COMPUTING THE DE DU CT I ON U / S 1 OA OF THE ACT . 5. ON T H E FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW AND BASED ON THE DIRECTIONS OF HON'BLE DRP, THE L EARNED AO ERRED IN LAW BY NOT CONSIDERING THE ALTERNATIVE PLEA OF THE APPELLANT THAT , IF THE TELECOMMUNICATION EXPENSES (I . E . LEASED LINE CHARGES) AND TRAVE L EXPENSES INC U RRED IN FOREIGN CURRENCY ATTRIBUTABLE TO THE DELIVERY OF COMPUTER SOFTWARE O UTSIDE INDIA ARE REDUCED FROM EXPORT TURNOVER , AN EQUAL AMOUNT SHOU L D ALSO BE REDUCED FROM TOTA L TURNOVER FOR COMPUT I NG THE DEDUCTION U / S 1OA OF THE ACT. ITA NO. 1214(BANG)2011 3 TRANSFER PRICING ADJUSTMENT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW : 6 .THE LEARNED AO / TRANSFER PRICING OFFICER ( ' TPO ' ) ERRED IN MAKING AN ADDITION OF RS. 2 , 07 , 96 , 88\ AND RS . I , \6 , 34,230 , TO THE TOTAL INCOME OF THE APPELLANT ON ACCOUNT OF ADJUSTMENT IN THE ARM'S LEN GTH PRICE OF THE SOFTWARE DEVELOPMENT SERVICES AND IT ENABLED SERVICES TRANSACTIONS ENTERED BY THE APPELLANT WITH ITS ASSOCIATED ENTERPRISE. . 7. THE LEARNED AO / TPO ERRED IN DISREGARDING THE ECONOMIC ANALYSIS UNDERTAKEN BY THE APPELLANT WITHOUT PROPER JUSTIFIC ATION AND CONDUCTING A FRESH ECONOMIC ANALYSIS FOR THE DETERMINATION OF TH E ARM ' S LENGTH PRICE IN CONNECTION WITH THE IMPUGNED INTERNATIONAL TRANSACT IONS AND HOLDING THAT THE APPELLANT'S INTERNATIONAL TRANSACTIONS ARE NOT AT ARM'S LENGTH. 8. THE LEARNED AO / TPO HAVE ERRED IN IGNORING THE FACT THAT SINCE THAT APPELLANT IS AVAILING TAX HOLIDAY U / S 1OA OF THE ACT, THERE IS NO INTENTION TO SHIFT THE PROFIT BASE OUT OF INDIA , WHICH IS ONE OF THE BASIC INTENTIONS OF THE INTRODUCTION OF TRANSFER PRICING PROVISIONS . 9.THE LEARNED AO / TPO ERRED IN DETERMINING THE ARM ' S LENGTH MARGIN ! PRICE USING ONLY FINANCIAL YEAR 2006-07 DATA, WHICH WAS NOT AVAILABLE TO THE APPELLANT AT THE TIME OF COMPLYING WITH THE TRA NSFER PRICING DOCUMENTATION REQUIREMENTS. 10. THE LEARNED AO / TPO ERRED IN REJECTING CERTAIN COMPARABLES CONSIDERED BY THE APPELLANT IN THE COMPARABILITY AN ALYSIS BY APPLYING DIFFERENT QUANTITATIVE AND QUALITATIVE FILTERS : A. THE LEARNED AO / TPO ERRED IN REJECTING CERTAIN COMPARABLE COMPANIES IDENTIFIED BY THE APPELLANT WHERE CONSOLIDATED RESU LTS HAD BEEN USED FOR ANALYSIS. B. THE LEARNED AO / TPO ERRED IN REJECTING CERTAIN COMPARABLE COMPANIES IDENTIFIED BY THE APPELLANT USING TURNOVER < RS . I CRORE AS A COMPARABILITY ITA NO. 1214(BANG)2011 4 CRITERION ; C. THE LEARNED AO / TPO ERRED IN REJECTING CERTAIN COMPARABLE COMPANIES IDENTIFIED BY THE APPELLANT AS HAVING ECONOMIC PERF ORMANCE CONTRARY TO THE INDUSTRY BEHAVIOR (E.G . COMPANIES WHICH SHOWED A DIMINISHING REVENUE TREND); D. THE LEARNED AO / TPO ERRED IN REJECTING CERTAIN COMPARABLE COMPANIES IDENTIFIED BY THE APPELLANT ON THE GROUND THAT THE COMPARABLES WERE HAVING DIFFERENT ACCOUNTING YEAR (OTHER THAN MARCH 31 OR C OMPANIES WHOSE FINANCIAL STATEMENTS WERE FOR A PERIOD OTHER THAN 12 MONTHS); AND 11. THE LEARNED TPO ERRED IN OBTAINING INFORMATION WHICH WAS NOT AVAILABLE IN PUBLIC DOMAIN BY EXERCISING POWERS U / S 133(6) OF THE ACT AND RELYING ON THE INFORMATION FOR COMPARABILITY ANALYSIS . 12. THE LEARNED AO / TPO ERRED IN NOT CONSIDERING THE FOREIGN EXCHANGE FLUCTUATION GAIN (LOSS) AS PART OF THE OPERATING IN COME WHILE COMPUTING THE OPERATING MARGIN. 13. THE LEARNED AO / TPO ERRED IN NOT MAKING SUITABLE ADJUSTMENTS ON ACCOUNT OF DIFFERENCES IN THE RISK PROFILE OF THE A PPELLANT VIS-A-VIS THE COMPARABLES, WHILE CONDUCTING COMPARABILITY ANALYSI S. 14. THE LEARNED AO / TPO ERRED IN COMPUTING THE ARM'S LENGTH PRICE WITHO UT GIVING BENEFIT OF + / - 5 PERCENT UNDER THE PROVISO TO SECTION 92C OF THE ACT . TRAN S ACTION SP EC IFI C GR O UNDS OF APP E AL R E LATING TO TR A N S F E R PRI C ING - SOFTWAR E DEVELOPMENT AND RELATED S E RVICES TRANSA C TION 15. THE LEARNED AO / TPO ERRED IN REJECTING CERTAIN COMPARABLES IDENTIFIED BY THE APPELLANT USING ' ONSITE REVENUES GREATER THAN 75 % OF THE EXPORT REVENUES ' AS A COMPARABILITY CRITERION. 16. THE LEARNED AO / TPO ERRED IN REJECTING CERTAIN COMPARABLES IDENTIFI ED BY THE APPELLANT USING 'EMPLOYEE COST GREATER THAN 25% OF THE TOTAL REVENUES ' AS A COMPARABILITY CRITERION ; ITA NO. 1214(BANG)2011 5 17. THE LEARNED AO / TPO ERRED BY ACCEPTING / REJECTING CERTAIN COMPANIES BASED ON UNREASONABLE COMPARABILITY CRITE RIA . 18. THE LEARNED AO / TPO ERRED IN WRONGLY COMPUTING THE OPERATING MARGIN S OF SOME OF THE COMPARABLE COMPANIES. TRANSA C TION SP E CIFI C GROUND S OF APP E AL R E LATING TO TRANSF E R PRICING - IT E NABL E D SE R V IC ES TRANSACTION 19. THE LEARNED AO / TPO ERRED BY ACCEPTING / REJECTING CERTAIN COMPANIES BASED ON UNREASONABLE COMPARABILITY CRITE RIA. COMMON GROUNDS OF APPEAL RELATING TO CORPORATE TAX AND TRANSFER PRICING MATTERS 20. THE LEARNED AO ERRED IN LEVYING INTEREST OF RS. 68,88 , 846 AND R S .L , 75 , 014 U / S 234B AND 234C OF THE ACT RESPECTIVELY . 21.THE LEARNED AO ERRED , IN LAW AND IN FACTS , IN INITIATING PENALTY PROCEEDING S U / S 271(1)(C) OF THE ACT . THE APPELLANT SUBMITS THAT EACH OF THE ABOVE GROUND S IS INDEPENDENT AND WITHOUT PREJUDICE TO ONE ANOTHER. THE APPELLANT CRAVES LEAVE TO ADD , ALTER, AMEND , VARY, OMIT OR SUBSTITUTE ANY OF THE AFORESAID GROUNDS OF APPEAL AT ANY TIME BEFO RE OR AT THE TIME OF HEARING OF THE APPEAL , SO AS TO ENABLE THE HON'BLE TRIBUNAL TO DECIDE ON T HE APPEAL IN ACCORDANCE WITH THE LAW . 3. THE ASSESSEE HAS ALSO RAISED ADDITIONAL GROUNDS AS UNDER; WITHOUT PREJUDICE TO GROUND NO. 16 (A) ' THAT THE LEARNED TPO / DRP HAS ERRED IN LAW AND IN FACT BY NOT APPLYING EMPLOYEE COST FILTER TO ITES SEGMENT WHEN THE EMPLOYEE COST FILTER WAS APPLIED TO SOFTWARE SEGMENT' ITA NO. 1214(BANG)2011 6 THE PETITIONER SUBMITS THAT THE ABOVE ADDITIONAL GR OUND IS BEING BY WAY OF ABUNDANT CAUTION. THE ADDITIONAL GROUND RAISE ISSUE WHICH IS FUNDAMENTAL TO THE APPEAL AND THE NON-ADMISSION AND NON-ADJUDICATI ON OF THE SAME WOULD RESULT IN AN INCOMPLETE APPRECIATION AND ADJUDICATI ON OF THE MATTER. THE PETITIONER SUBMITS THAT THE FAILURE TO RAISE THESE GROUNDS AT AN EARLIER STAGE IS NEITHER WILFUL NOR WANTON BUT DUE TO THE REASONS ST ATED ABOVE. NO PREJUDICE WOULD BE CAUSED TO THE RESPONDENT BY REASON OF THE ABOVE ADDITIONAL GROUNDS BEING ADMITTED AND ADJUDICATED AND ACCORDIN GLY THE BALANCE OF CONVENIENCE IS IN FAVOUR OF SUCH AN ORDER BEING PAS SED BY THIS HON ' BLE TRIBUNAL . THE PETITIONER STATES AND SUBMITS THAT THE ISSUES R AISED IN THE ADDITIONAL GROUND ABOVE ARE LEGAL ISSUES AND ARISE OUT OF THE ORDER OF THE LOWER AUTHORITIES . RELIANCE IS BASED ON THE DECISIONS OF THE HON ' BLE SUPREME COURT IN THE CASE OF JUTE CORPORATION OF INDIA VS. C . I . T . (187 ITR 688) AND NATIONAL THERMAL POWER CORPORAT I ON VS. C.I . T . (229 ITR 383) AS WELL AS THE FULL BENCH OF THE BOMBAY HIGH COURT IN THE CASE OF AHMADABAD ELECTRICITY CO. LTD. (199 ITR 351). IN THE ABOVE CIRCUM S TANCES THE PETITIONER PRAYS THAT THIS HON ' BLE TRIBUNAL BE PLEASED TO; (I) ADMIT AND ADJUDICATE THE ABOVE ADDITIONAL GROUN D , (II) PASS ANY OTHER ORDER THAT MAY BE REQUIRED IN T HE CIRCUMSTANCES OF THE CASE AND RENDER JUSTICE. 4. IN THE COURSE OF HEARING BEFORE US, IT WAS SUBM ITTED BY THE LD. AR OF THE ASSESSEE THAT THERE ARE TWO SEGMENTS OF ASSESSE E COMPANY I.E. SOFTWARE SERVICES AND CUSTOMER SUPPORT SERVICES. THEREAFTER, HE SUBMITTED THAT IN THE SOFTWARE SERVICES SEGMENT, THE ASSESSEE IS HAVI NG A TURNOVER OF RS.21.69 CRORES AND THE ASSESSEES OPERATIVE NET MARGIN IS 1 2.34% FOR THIS SEGMENT. THEREAFTER, HE SUBMITTED THAT THE TPO HAS SELECTED 26 COMPARABLES, OUT OF WHICH THE ASSESSEE IS REQUESTING FOR EXCLUSION OF 1 4 COMPARABLES AND IS ALSO REQUESTING FOR CONSIDERING CORRECT MARGIN OF ONE CO MPARABLE I.E. DATAMATICS ITA NO. 1214(BANG)2011 7 LTD., HE FURTHER SUBMITTED THAT THE ASSESSEE IS AL SO REQUESTING FOR INCLUSION OF TWO COMPARABLES WHICH WAS REJECTED BY THE TPO ON WRONG BASIS. 5. REGARDING THE SECOND SEGMENT I.E. CUSTOMER SUPP ORT SERVICES, THE LD. AR OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS HAVING TURNOVER OF 12.74 CRORES FOR THIS SEGMENT AND THE OPERATING MAR GIN OF THIS SEGMENT IS 17.19%. THEREAFTER, HE SUBMITTED THAT OUT OF 27 COM PARABLES ADOPTED BY THE TPO FOR THIS SEGMENT, THE ASSESSEE IS REQUESTING FO R EXCLUSION OF 14COMPARABLES ON THE BASIS OF FUNCTIONAL DISSIMILAR ITY AND FOR THIS CONTENTION, THE ASSESSEE IS PLACING RELIANCE ON THE TRIBUNAL ORDER RENDERED IN THE CASE OF AOL ONLINE INDIA PVT. LTD., AS REPOR TED IN TS-156 ITAT- 2016(BANG)-TP FOR ASSESSMENT YEAR 2007-08 AND HE SU BMITTED THAT A COPY OF THE TRIBUNAL ORDER IS AVAILABLE IN THE PAPER BOO K. THEREAFTER, HE SUBMITTED THAT THE ASSESSEE IS REQUESTING FOR EXCLU SION OF ONE MORE COMPARABLE I.E. M/S ISERVICES INDIA PVT. LTD. ON TH E BASIS OF THE TRIBUNAL ORDER RENDERED IN THE CASE OF M/S WILLS PROCESSING SERVICES (I) PVT. LTD., TS- 49-ITAT-2013-MUMBAI(TP) AND FURTHER HE SUBMITTED TH AT THIS ORDER IS ALSO AVAILABLE ON PAPER BOOK. THEREAFTER, HE SUBMITTED THAT THE ASSESSEE IS ALSO SEEKING EXCLUSION OF ONE MORE COMPANY I.E. M/S ALLS EC TECHNOLOGIES LTD., ON THIS BASIS THAT THIS COMPANY HAS INTENTION TO CARRY BUSINESS IN TRADING OF SECURITIES (MUTUAL FUND UNITS IN SPECIFIC) IN THIS REGARD, HE SUBMITTED THAT THIS COMPANY PURCHASED MUTUAL FUND UNITS OF THE VAL UE OF APPROXIMATELY THREE TIMES OF ITS REVENUE FROM ITES OPERATION AND SOLD TWO TIME OF SUCH REVENUE AND IN SUPPORT OF HIS CONTENTION HE HAS DRA WN OUR ATTENTION TO THE ANNUAL REPORT OF THIS COMPANY ON PAGES-3353 3435 OF THE PAPER BOOK. ITA NO. 1214(BANG)2011 8 THEREAFTER, HE SUBMITTED THAT HE ASSESSEE IS ALSO S EEKING EXCLUSION OF NE MORE COMPANY I.E. M/S APOLLO HEALTHSTREE LTD., ON T HE BASIS OF THE TRIBUNAL ORDER RENDERED IN THE CASE OF AOL ONLINE INDIA PVT. LTD.,(SUPRA). THEREAFTER, HE SUBMITTED THAT THESE TWO COMPANIES R EJECTED BY THE TPO I.E. M/S R.S.SOFTWARE LTD., AND M/S MICROLAND LTD., THES E COMPANIES SHOULD BE TREATED AS GOOD COMPARABLE, BECAUSE THE BASIS ON RE JECTION OF THIS COMPARABLE ADOPTED BY THE TPO IS NOT PROPER. HE SUB MITTED A COPY OF THE ANNUAL REPORT OF THESE TWO COMPANIES AVAILABLE ON P AGE 3299 - 3352 AND 3747 - 3793 OF THE PAPER BOOK RESPECTIVELY. 6. LD. DR OF THE REVENUE SUPPORTED THE ORDER OF AU THORITIES BELOW. 7. WE HAVE CONSIDERED RIVAL SUBMISSIONS. FIST, WE TAKE UP SOFTWARE SERVICES SEGMENT. IN THIS SEGMENT THE TPO HAD ADOP TED 26 COMPARABLES OUT OF WHICH THE ASSESSEE IS SEEKING EXCLUSION OF 14 MA RVEL INDIA PVT. LTD., VS ACIT IN IT(TP)A NO.1033(B)/2011 DATED 17-06-2016. C OPY OF THIS ORDER IS FURNISHED ALONG WITH THE CHART AND IT HAS BEEN POI NTED OUT THAT PARA 5 TO 7 OF THIS TRIBUNAL ORDER ON PAGES 6 TO 9 OF THIS TRIB UNAL ORDER ARE RELEVANT FOR EXCLUSION OF THIS COMPARABLE. HENCE, FOR THE SAKE OF READY REFERENCE, WE REPRODUCE PARA-5 TO 7 OF THIS TRIBUNAL ORDER AS UND ER; 5. REGARDING THESE FOUR GROUNDS WHICH ARE BEING PR ESSED BY THE LD. AR OF THE ASSESSEE, IT WAS SUBMITTED THA T THAT OUT OF 28 COMPARABLES WHICH ARE CONSIDERED BY THE TPO A S CAN BE SEEN ON PAGES 157 TO 158 OF THE PAPER BOOK, I.E. PAGE NO.2 & 3 OF THE TPOS ORDER, IT WAS POINTED OUT THA T THE INTERNATIONAL TRANSACTION IN DISPUTE IS MAINLY REGA RDING SOFTWARE DEVELOPMENT SERVICES OF RS.15,03,62,370/-A ND THE ITA NO. 1214(BANG)2011 9 PERCENTAGE OF OPERATING PROFIT ON OPERATING COST OF THE ASSESSEE IS NOTED BY THE TPO AT 14.64% AND THE MEAN MARGIN OF 26 COMPARABLES IS NOTED BY THE TPO AT 25. 14% BEFORE WORKING CAPITAL ADJUSTMENT AND 22.74% AFTER WORKING CAPITAL ADJUSTMENT. THEREAFTER, HE SUBMITTED THAT I N CASE OF HEWLETT PACKARD (IND.) SOFTWARE OPERATION LTD., IN ITA NO.130(BANG)/2011 DATED 09-03-2016 FOR THE SAME ASSESSMENT YEAR, COPY AVAILABLE IN COMPILATION OF C ASE LAWS PAPER BOOK ALSO, THE SAME 26 COMPARABLES WERE ADOPTED BY THE TPO AND AS PER PARA 14 OF THE TRIBUN ALS ORDER RENDERED IN THE CASE OF M/S HEWLET PACKARD (I ND.) SOFTWARE OPERATION LTD., (SUPRA), THE TRIBUNAL HAS DIRECTED TO EXCLUDE 12 COMPARABLES I.E. 1) M/S AVANI CIMCON TEC H.LTD., 2) M/S CELESTIAL LABS LTD., 3)E-ZEST SOLUTIONS LTD. , 4)FLEXTRONICS SOFTWARE SYSTEMS LTD (SEG.) 5)M/S HEL IOS & MATHESAON INF.TECH.LTD.,6) M/S INFOSYS TECH.LTD., 7 ) M/S ISHIR INFOTECH LTD., 8) M/S KALS INFORMATION SYSTEM S LTD (SEG.) 9) LUCID SOFTWARE LTD.,10) M/S MEGASOFT LTD. , 11) M/S PERSISTENT SYSTEMS LTD., AND 12) M/S WIPRO LTD.,(SE G.) HE FURTHER SUBMITTED THAT AS PER THE TRIBUNALS ORDER RENDERED IN THE CASE OF M/S MERITOR LVS INDIA (P) LTD., IN IT(TP)A NO.1231(BANG)/2011 FOR THE SAME ASSESSMENT YEAR, CO PY AVAILABLE IN COMPILATION OF CASE LAWS ALSO, THE SAM E 26 COMPARABLES WERE CONSIDERED BY THE TPO AND IN ADDIT ION TO THESE 12 COMPARABLES WHICH ARE EXCLUDED AS PER THE TRIBUNALS ORDER IN THE CASE OF M/S HEWLET PACKARD (IND.) SOFTWARE OPERATION LTD., (SUPRA), THREE MORE COMPAR ABLES WERE DIRECTED TO BE EXCLUDED IN THIS CASE, I.E. 1) M/S ACEL TRANSMATICS LTD (SEG.) 2) M/S TATA ELXSI LTD.,(SEG. ) AND 3) THIRDWARE SOLUTIONS LTD. HE SUBMITTED THAT IN THESE TWO CASES ALSO, THE ASSESSEE COMPANY WAS ENGAGED IN THE SOFTWARE DEVELOPMENT SERVICES AS IN THE PRESENT CAS E AND ITA NO. 1214(BANG)2011 10 THEREFORE, THESE TWO TRIBUNAL ORDERS ARE SQUARELY A PPLICABLE TO THE PRESENT CASE AND HENCE, THESE 15 COMPARABLES , AS PER THESE TWO TRIBUNAL ORDERS SHOULD BE EXCLUDED IN THE PRESENT CASE. 6. THE LD. DR OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE F IND THAT IN THE PRESENT CASE, IT IS NOTED BY THE TPO ON PAGE NO.2 & 3 OF HIS ORDER THAT THE ASSESSEE COMPANY IS ENGAG ED IN RENDERING SERVICES TO THE AE RELATING TO DESIGNING OF INTEGRATED CIRCUITS AND THE TESTING OF INTEGRATED C IRCUITS ALONG WITH CUSTOMER SUPPORT. IT IS ALSO NOTED BY THE TPO THAT THE INTERNATIONAL TRANSACTIONS ARE MAINLY OF RS.15,03,6 2,370/- FOR SOFTWARE SERVICES APART FROM RE-IMBURSEMENT OF EXPENSES OF RS.21.45 LACS AND 22.61 LACS. IN THE CASE OF M/S HEWLET PACKARD (IND.) SOFTWARE OPERATION LTD.(SUPRA) ALSO, THE INTERNATIONAL TRANSACTION INCLUDED MAINLY THE SERVI CES RENDERED AS SOFTWARE DEVELOPMENT SERVICES OF RS.585 4.51 LACKS. SIMILARLY, IN THE CASE OF M/S MERITOR LVS I NDIA (P) LTD., (SUPRA) ALSO, IT WAS NOTED BY THE TRIBUNAL IN PARA-5 OF THE TRIBUNALS ORDER THAT FINAL TP ADJUSTMENT RECOM MENDED BY THE TPO WAS ONLY ON THE SOFTWARE DEVELOPMENT SERVICES(SEG.). HENCE, IN OUR CONSIDERED OPINION, THESE TWO TRIBUNAL ORDERS ARE SQUARELY APPLICABLE IN THE PRES ENT CASE BECAUSE LD. DR OF THE REVENUE FAILED TO POINT OUT A NY DIFFERENCE IN FACTS IN THE PRESENT CASE AND IN THES E TWO CASES. AS PER PARA-14 OF THE TRIBUNAL ORDER IN TH E CASE OF M/S HEWLET PACKARD (IND.) SOFTWARE OPERATION LTD. ( SUPRA), THE TRIBUNAL HELD THAT 11 COMPARABLES I.E. M/S AVAN I CIMCON TECHNOLOGIES LTD., 2) M/S CELESTIAL LABS LTD., 3) M /S E-ZEST SOLUTIONS LTD., 4) M/S FLEXTRONICS SOFTWARE SYSTEMS ITA NO. 1214(BANG)2011 11 LTD.,(SEG.) 5)M/S HELIOS & MATHESON INFORMATION TEC HNOLOGY LTD.,6) M/S INFOSYS TECHNOLOGIES LTD., 7) M/S ISHIR INFOTECH LTD., 8) M/S KALS INFORMATION SYSTEMS LTD., 9) M/S LUCID SOFTWARE LTD;, 10) PERSISTENT SYSTEMS LTD., AND 11) M/S WIPRO LTD., (SEG.) ARE TO BE EXCLUDED. REGARDING M /S MEGASOFT LTD., IT WAS HELD BY THE TRIBUNAL THAT M/S MEGASOFT LTD CAN BE CONSIDERED FOR INCLUSION ONLY AFTER SEGM ENTATION OF ITS RESULTS. FOR THE SAKE OF READY REFERENCE, WE REPRODUCE PARA-14 OF THIS TRIBUNAL ORDER IS REPRODUCED. IN T HE TRIBUNAL ORDER RENDERED IN THE CASE OF M/S MERITOR LVS INDIA (P) LTD., (SUPRA) ALSO, PARA-14 OF THE TRIBUNAL ORDER IS RELE VANT WHICH IS ALSO RE-PRODUCED HEREUNDER; 14. ACCORDINGLY, FOLLOWING THE ABOVE ORDER, WE D IRECT EXCLUSION OF CELESTIAL LABS LTD., E ZEST SOLUTIONS LTD., INFOSYS TECHNOLOGIES LTD., KALS INFORMATION SYSTEMS LTD. (SEG.) LUCID SOFTWARE LTD., WIPRO LTD (SEG.) ACCEL TRANSMATIC LTD.,(SEG.), HELIOS & MATH4ESON INFORMATION TECHNOL OGY LTD., ISHIR INFOTECH LTD., PERSISTENT SYSTEMS LTD., SASK EN COMMUNICATION TECHNOLOGIES LTD (SEG.), TATA ELXSI L TD., (SEG.) AND THIRDWARE SOLUTIONS LTD. IN SO FAR AS MEGASOFT SOLUTIONS LTD., IS CONCERNED, WE DIRECT THE AO/TPO TO REWORK ITS SEGMENTAL RESULTS AND CONSIDER ITS COMPARABILITY ON LY WITH REGARD TO THE SOFTWARE DEVELOPMENT SERVICES SEGMENT . ORDERED ACCORDINGLY. IT CAN BE SEEN THAT AS PER THIS TRIBUNAL ORDER ALS O, IT WAS HELD BY THE TRIBUNAL THAT IN RESPECT OF M/S MEGASOF T LTD.,, THE AO/TPO WERE DIRECTED TO RE-WORK ITS SEGMENTAL R ESULTS AND CONSIDER ITS COMPARABILITY ONLY WITH REGARD TO SOFTWARE DEVELOPMENT SERVICES (SEG.). IT WAS DIRECTED THAT M /S ACCEL TRANSMATIC LTD., (SEG.) M./S TATA ELXSI LTD., AND M /S THIRDWARE SOLUTIONS LTD., SHOULD BE EXCLUDED IN ADD ITION TO ITA NO. 1214(BANG)2011 12 OTHER 11 COMPARABLES, WHICH WERE DIRECTED TO BE EXC LUDED AS PER TRIBUNAL ORDER IN THE CASE OF M/S HEWLET PACKAR D (IND.) SOFTWARE OPERATION LTD., (SUPRA). WE THEREFORE, DIR ECT THE AO/TPO TO EXCLUDE 14 COMPARABLES INCLUDING 11 COMPARABLES AS PER TRIBUNAL ORDER IN THE CASE OF M/ S HEWLET PACKARD (IND.) SOFTWARE OPERATION LTD., (SUPRA) AND THREE COMPARABLES AS PER TRIBUNAL ORDER IN THE CASE OF M/ S MERITOR LVS INDIA (P) LTD., (SUPRA), AS NOTED ABOVE. ONE C OMPARABLE M/S MEGASOFT LTD., SHOULD BE CONSIDERED FOR INCLUSI ON AS PER ITS SEGMENTAL RESULTS ONLY. THE AO/TPO SHOULD PASS NECESSARY ORDER AS PER LAW AND AS PER ABOVE DISCUSS ION AFTER PROVIDING AN OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE. THESE FOUR GROUNDS ARE DISPOSED OF IN T HIS MANNER. FROM THE ABOVE PARAS REPRODUCED FROM THE TRIBUNAL ORDER RENDERED IN THE CASE OF M/S MARVEL INDIA PVT. LTD., (SUPRA), IT IS SEEN THAT IN THAT CASE, THE COMPANY WAS ENGAGED IN SOFTWARE SERVICES AND IT WAS HELD BY THE TRIBUNAL IN THAT CASE THAT FOLLOWING 14 COMPARABLES SHOULD BE EXCLUDED AND FOR ONE COMPARABLE I.E. M/S MEGASOFT LTD., IT WAS D IRECTED THAT THIS COMPANY SHOULD BE CONSIDERED FOR INCLUSION AS PER ITS SEGME NTAL RESULTS ONLY. THESES 14 COMPANIES FOR WHICH EXCLUSION WAS DIRECTED IN TH AT CASE WHICH ARE AS FOLLOWS; 1) M/S AVAN CIMCON TECH.LTD., 2) M/S CELESTIAL LABS LTD., 3) M/S ISHIR INFOTECH LTD., 4) M/S LUCID SOFTWARE LTD., 5) M/S TATA ELXSI LTD., (SEG.) 6) M/S KALS INFORMATION SYSTEMS LTD., ITA NO. 1214(BANG)2011 13 7) M/S INFOSYS TECH.LTD., 8) M/S HELIOS & MATHERSON INFORMATION TECH.LTD., 9) M/S E - ZEST SOLUTIONS LTD., 10) M/S PERSISTENT SYSTEMS LTD., 11) M/S WIPRO LTD., 12) M/S THIRDWARE SOLUTIONS LTD., 13) M/S ACCEL TRANSMATICS LIMITED (SEG.) 14) M/S FLEXTRONICS SOFTWARE SYSTEMS LTD. (SEG.). AFTER EXCLUSION OF THESE 14 COMPARABLES COMPANIES A ND AFTER CONSIDERING THE CORRECT OPERATIVE MARGIN OF M/S MEG ASOFT LTD. (SEG.), NET MARGIN OF THE REMAINING 13 COMPARABLES SHOULD BE WO RKED OUT AND TP ADJUSTMENT SHOULD BE MADE IF REQUIRED AS PER LAW AF TER GRANTING BENEFIT AS PER LAW IN RESPECT OF +- 5% BENEFIT AS PER LAW IN R ESPECT OF SOFTWARE SERVICE SEGMENT. 8. NOW WE TAKE UP THE SECOND SEGMENT I.E. CUSTOMER SUPPORT SERVICE SEGMENT. FOR THIS SEGMENT, THE ASSESSEE IS SEEKING EXCLUSION OF 15 COMPARABLES OUT OF 27 COMPARABLES SELECTED BY THE T PO ON THE BASIS OF TRIBUNAL ORDER I.E. M/S AOL ONLINE INDIA PVT. LTD., (SUPRA) IN IT(TP)A NO.1036(B)/2011 DATED 18-03-2016, COPY AVAILABLE ON PAGES 2362 TO 2381 OF THE PAPER BOOK. AS PER THIS TRIBUNAL ORDER, IT WAS HELD BY THE TRIBUNAL THAT THE FOLLOWING COMPANIES SHOULD BE EXCLUDED FRO M THE LIST OF FINAL COMPARABLES. 1) M/S BODHTREE CONSULTING LTD., 2) M/S ECLERX SERVICES LTD., 3) M/S MOLD TEK TECHNOLOGIES LTD., (SEG.) ITA NO. 1214(BANG)2011 14 4) M/S ACCENTIA TECHNOLOGIES LTD., (SEG.) 5) M/S VISHAL INFORMATION TECHNOLOGIES LTD., 6) M/S SPANCO LTD., (SEG.) 7) M/S INFORMED TECHNOLOGIES LTD., 8) M/S ASIT C MEHTA FINANCIAL SERVICES LTD., 9) MAPLE E-SOLUTIONS LTD., 10) M/S TRITON CORP. LTD., 11) M/S ACCURATE DATA CONVERTS 12) M/S HCL COMNET SYSTEMS & SERVICES LTD., (SEG.) 13) M/S INFOSYS BPO LTD., AND 14) M/S WIPRO LTD., (SEG.) RESPECTFULLY FOLLOWING THIS TRIBUNAL ORDER, BECAUSE THE LD. DR OF THE REVENUE COULD NOT POINT OUT ANY DIFFERENCE IN FACTS , WE HOLD THAT THESE 14 COMPANIES SHOULD NOT BE CONSIDERED IN THE FINAL LIS T OF COMPARABLES. 9. REGARDING M/S ISERVICES INDIA PVT. LTD., (SUPRA) , RELIANCE HAS BEEN PLACED ON THE TRIBUNAL ORDER RENDERED IN THE CASE O F M/S E-4E BUSINESS SOLUTIONS INDIA PVT. LTD., I IT(TP)A NO.819(B)/2011 DATED 26-05-2015. PARA-29 & 30 OF THIS TRIBUNAL ORDER ARE RELEVANT FO R THIS ISSUE. HENCE, WE REPRODUCE THE SAME HEREIN FOR THE SAKE OF READY REF ERENCE; 29. THE ASSESSEE SEEKS TO CHALLENGE THE ACTION OF THE TPO IN CONSIDERING THE I SERVICES INDIA LTD., AS A COMPARABLE. THIS COMPANY IS LISTED AT SL.NO.18 OF THE LIST OF COMPARABLES CHOSEN BY THE TPO. FOR CHOOSING THIS COMPANY AS A COMPARABLE, THE TPO HAS MADE THE FOLLOWING OBSERV ATIONS :- '33.18 ISERVICES INDIA PVT LTD (OP/TO FOR THE FY 2 006-07 - 49.47%) ITA NO. 1214(BANG)2011 15 THE COMPANY WAS NOT PART OF THE COMPANIES CONSIDERE D BY THE TAXPAYER IN THE ACCEPT I REJECT MATRIX GIVEN AS APP ENDIX-D TO THE TP REPORT. HOWEVER, THE DATA OF THE COMPANY IS AVAILAB LE IN CAPITALINE DATABASE. THE ANNUAL REPORT WAS NOT AVAILABLE FOR TILE FY 200 6-07. RPT INFORMATION WAS NOT AVAILABLE. THUS NOTICE 133(6) N OTICE WAS ISSUED TO THE COMPANY. AS PER THE REPLY RECEIVED FROM THE COM PANY AND THE ANNUAL REPORT SUBMITTED, IT IS SEEN THAT THE COMPAN Y IS INTO IT ENABLED SERVICES AND QUALIFIES ALL THE FILTERS APPLIED BY T HE TPO. THUS THE COMPANY IS PROPOSED AS A COMPARABLE VIDE THIS OFFIC E LETTER DATED 17- 05-2010. IN RESPONSE, THE TAXPAYER IN ITS LETTER DA TED 28-06-2010 DID NOT OFFER ANY COMMENTS. THUS THE COMPANY IS CONSIDE RED AS A COMPARABLE. HOWEVER, THERE IS A MISTAKE IN THE COMPUTATION OF P LI OF THE COMPANY. THE SAME IS RECTIFIED AS UNDER : DESCRIPTION AMOUNT (RS) OPERATING REVENUES 16,29,20,061 EXPENSES DEBITED TO P&L ACCOUNT 11,11,80,761 LESS: INTEREST . 14,80,537 LESS: EXCHANGE DIFFERENCE 6,42,614 LESS: MISCELLANEOUS EXPENSES WRITTEN 55,880 ITA NO. 1214(BANG)2011 16 OFF OPERATING EXPENSES 10,90,01,730 OPERATING PROFIT (PBIT) 5,39,18,331 OP / TC (PLI) 49.47% THUS THE COMPANY IS CONSIDERED AS A COMPARABLE WITH THE ABOVE REVISED PLI OF 49.47% ON COST.' 30. THE ASSESSEE HAS NOT RAISED ANY SPECIFIC GROUND ON ADOPTING THIS COMPANY AS A COMPARABLE BEFORE THE DRP. BEFORE US , THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE TPO DID NOT FURNISH THE INFORMATION OBTAINED FROM THIS COMPANY IN EXERC ISE OF HIS POWERS U/S.133(6) OF THE ACT. IT WAS FURTHER POINTED OUT THAT EVEN AS PER THE TPO, THE ANNUAL REPORT OF THIS COMPANY FOR F. Y. 20 06-07 WAS NOT AVAILABLE. THE TPO HAS GONE BY THE DATA AVAILABLE ON CAPITA LINE DATA BASE. THE LEARNED COUNSEL FOR THE ASSESSEE TH EREFORE MADE A PRAYER THAT THE QUESTION OF CONSIDERING THE AFORESA ID COMPANY AS A COMPARABLE SHOULD BE REMANDED BACK TO THE TPO / ASS ESSING OFFICER FOR FRESH CONSIDERATION AND THE ISSUE DECIDED IN TH E LIGHT OF THE PUBLISHED ANNUAL REPORT FOR F. Y. 2006-07 AND ALSO ON THE BASIS OF THE INFORMATION FURNISHED BY THIS COMPANY TO THE ASSESS ING OFFICER IN RESPONSE TO NOTICE U/S.133(6) OF THE ACT. WE HAVE CONSIDERED THE SUBMISSIONS AND ARE OF THE VIEW THAT THE SAME DESER VES TO BE ACCEPTED. THE TPO / ASSESSING OFFICER WILL OBTAIN THE ANNUAL REPORT OF THE COMPANY FOR F. Y. 2006-07 AND ALSO FURNISH T HE ASSESSEE COPIES OF THE SAME TOGETHER WITH THE INFORMATION OB TAINED BY THE TPO PURSUANT TO ISSUE OF NOTICE U/S.133(6) OF THE ACT. THE ASSESSEE WILL THEREAFTER FURNISH ITS REPLY AS TO WHY THIS COMPANY SHOULD NOT BE CONSIDERED AS A COMPARABLE COMPANY. THE TPO / ASSE SSING OFFICER WILL THEREAFTER DECIDE THE QUESTION OF CONSIDERING THIS COMPANY AS A ITA NO. 1214(BANG)2011 17 COMPARABLE COMPANY AFTER AFFORDING OPPORTUNITY OF B EING HEARD TO THE ASSESSEE. FROM THE ABOVE TWO PARAS OF THIS TRIBUNAL ORDER, I T CAN BE SEEN THAT IN THAT CASE, THE MATTER WAS RESTORED BACK TO THE FILE OF THE TPO FOR FRESH DECISION. ACCORDINGLY, IN THE PRESENT CASE ALSO, WE RESTORE THE MATTER BACK TO THE FILE OF THE TPO FOR FRESH DECISION WITH THE SAM E DIRECTIONS AS GIVEN BY THE TRIBUNAL IN THAT CASE. 10. THE ASSESSEE IS ALSO SEEKING EXCLUSION OF ONE MORE COMPANY I.E. APOLLO HEALTHSTREET LTD. ON THE BASIS OF SAME TRIBU NAL ORDER RENDERED IN THE CASE OF AOL ONLINE INDIA PVT. LTD. AND REGARDING TH IS COMPARABLE, THE DISCUSSION IS AVAILABLE ON PAGES 2377 2378 OF THE PAPER BOOK. THE RELEVANT PARA IS REPRODUCED BELOW; ASSESSEE OBJECTS TO THE ABOVE COMPARABLE ON THE REASON OF RPT FILTER. EVEN THOUGH RPT FILTER AT 15 % IS ACCEPTED IN SOME OF THE CASES BY THE CO-ORDINATE BE NCHES, THE RPT FILTER CAN BE CONSIDERED UP TO 25% DEPENDIN G ON THE FACTS OF THE CASE. AS WORKED OUT BY ASSESSEE, RPT F ILTER IS ONLY 17.7%. HOW IT IS WORKED OUT IS NOT AVAILABLE. SINCE TPO HAS GIVEN VALID REASONS TO INCLUDE THE ABOVE COMPAR ABLE, WE ARE OF THE OPINION THAT SAME CANNOT BE EXCLUDED. M OREOVER, AS SEEN FROM THE OTHER ORDER ALSO, NO OTHER ASSESSE E HAS OBJECTED TO INCLUSION OF THE ABOVE COMPANY MAY BE O N THE REASON THAT ITS MARGIN IS A NEGATIVE MARGIN. BE T HAT AS IT MAY, WE ARE OF THE OPINION THAT THERE IS NO NEED TO EXCLUDE THAT COMPARABLE FROM THE LIST OF COMPARABLES SELECT ED BY THE TPO. ITA NO. 1214(BANG)2011 18 FROM THE ABOVE PARA OF THE TRIBUNAL ORDER, IT IS S EEN THAT IT WAS HELD BY THE TRIBUNAL IN THAT CASE THAT THIS COMPANY IS N OT REQUIRED TO BE EXCLUDED FROM THE LIST OF FINAL COMPARABLES. RESP ECTFULLY FOLLOWING THIS TRIBUNAL ORDER, WE DECIDE THE ISSUE AGAINST THE ASS ESSEE AND HOLD THAT THIS COMPANY IS NOT REQUIRED TO BE EXCLUDED FROM THE LIS T OF FINAL COMPARABLES. THE ASSESSEE IS ALSO SEEKING INCLUSION OF TWO COMP ARABLES I.E. M/S ACE SOFTWARE EXPORTS LTD.. AND M/S MICROLAND LTD., FOR ACE SOFTWARE EXPORT LTD., THE TPO HAS REJECTED THIS COMPARABLE ON THIS BASIS THAT THE DIMINISHING PROFIT FILTER OF LAST THREE YEARS. IN VIEW OF THIS, WE FIND NO MERIT IN THE CLAIM OF THE ASSESSEE THAT THIS COMPANY IS A GOOD COMPARABLE. 11. THE SECOND COMPANY I.E. M/S MICROLAND LTD., HA S BEEN EXCLUDED BY THE TPO ON THIS BASIS THAT THE SEGMENTAL INFORMA TION OF THIS COMPANY ARE NOT AVAILABLE. IN VIEW OF THIS, WE FIND NO MERIT IN THIS CLAIM OF THE ASSESSEE FOR INCLUSION OF THIS COMPANY. WE HOLD ACCORDINGLY. 12. IN THE RESULT, THE APPEAL OF THE ASSESSEE STAN DS PARTLY ALLOWED FOR STATISTICAL PURPOSES IN THE TERMS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- (SUNIL KUMAR YADAV) SD/- (A.K. GARODIA) JUDICAL MEMBER AC C OUNTANT MEMBER BANGALORE: D A T E D : 29.08.2016 AM* ITA NO. 1214(BANG)2011 19 COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A)-II BANGALORE 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER, AR, ITAT, BANGALORE ITA NO. 1214(BANG)2011 20 1. DATE OF DICTATION 2. , , DATE ON WHICH TYPED DRAFT IS PLACED BEFORE THE DICT ATING MEMBER .. 3. !' # . $ %# / $ %# # & DATE ON WHICH THE APPROVED DRAFT COMES TO THE PS/SR .PS. 4. ''() & * + DATE ON WHICH THE ORDER IS PLACED BEFORE THE DICTAT ING MEMBER FOR PRONOUNCEMENT 5. * . %# / # . . %# # + DATE ON WHICH THE ORDER COMES BACK TO THE PS/SR.PS .. 6 * !', + DATE OF UPLOADING THE ORDER ON WEBSITE .. 7. ! !', ' , - ) IF NOT UPLOADED, FURNISH THE REASON FOR DOING SO . 8. .% / 0 + DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 9. * 1'2 / 34 & 5 + DATE ON WHICH ORDER GOES FOR XEROX &ENDORSEMENT 10. 0 6 / + DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 11. * 7 & 0 8 + THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 12. !) * 9() & 0 9() /#5 . + THE DATE ON WHICH THE FILE GOES TO DESPATCH SECTION FOR DESPATCH OF THE TRIBUNAL ORDER 13. * 9() + DATE OF DESPATCH OF ORDER .