M/s. Vishay Components India Private Limited, Pune V. Dy.CIT, Circle 7, Pune, Pune

ITA 133/PUN/2011

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1888 (ITAT-PUNE)
• Duration Of Justice: 5 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-05-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 17-02-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 01-02-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SANDEEP GARG
• Assessee Lawyers: FAROOQ V IRANI
• Keywords: Depreciation; Transfer pricing; Principle of natural justice; International transaction; Additional evidence; Initiation of penalty proceedings; Onus to prove; Unabsorbed depreciation
• Section: 92C; 143(3); 92D; 234B; 10B; 139; 92

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI PRADIP KUMAR KEDIA , A M . / ITA NO. 1 3 3 /PN/201 1 / ASSESSMENT YEAR : 20 0 6 - 0 7 M/S. VISHAY COMPONENTS INDIA PVT. LTD., LONI - KALBHOR, NEAR PUNE (C. RLY.) PUNE 412201 . / APPELLANT PAN: AA ACB9652L VS. THE DY. COMMISSIONER OF INCOME TAX , CIRCLE 7, PUNE . / RESPONDENT / APPELLANT BY : SHRI FAROOQ V. IRANI / RESPONDENT BY : SHRI SANDEEP GARG, CIT / / / DATE OF HEARING : 17 . 0 2 .201 6 / DATE OF PR ONOUNCEMENT: 16 . 0 5 .201 6 / ORDER PER SUSHMA CHOWLA, J M : THE PRESENT APPEAL IS FIXED BEFORE US CONSEQUENT TO THE ORDER PASSED IN MISCELLANEOUS APPLICATION NO.82/PN/2013, RELATING TO ASSESSMENT YEAR 2006 - 07, ORDER DATED 02.08.2013. THE APPE AL OF THE ASSESSEE WAS DECIDED VIDE ORDER DATED 25.05.2012 IN ITA NO.133/PN/2011 , RELATING TO ASSESSMENT YEAR 2006 - 07 . HOWEVER, THE ASSESSEE MOVED A MISCELLANEOUS APPLICATION TO THE EFFECT THAT SOME GROUNDS OF APPEAL WERE INADVERTENTLY NOT DISPOSED OF WHI LE PASSING THE ORDER DATED 25.05.2012 . THE TRIBUNAL ALLOWED THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE AND DIRECTED THAT FOLLOWING GROUNDS OF APPEAL ITA NO. 1 3 3 /PN/20 1 1 VISHAY COMPONENTS INDIA PVT. LTD. 2 NEED TO BE DISPOSED OF SINCE THEY REMAINED TO BE UN - ADJUDICATED IN ORIGINAL ORDER PASSED. THE GR OUNDS OF APPEAL READ AS UNDER: - 2. CONDUCTING AN UNJUSTIFIED FRESH SEARCH FOR IDENTIFYING ADDITIONAL COMPARABLE COMPANIES AT THE TIME OF ASSESSMENT PROCEEDINGS AND PROCEEDED WITH USING NON - CONTEMPORANEOUS DATA ERRED ON THE FACTS AND IN LAW BY CONDUCTING AN UNJUSTIFIED FRESH SEARCH AT THE TIME OF ASSESSMENT PROCEEDINGS FOR IDENTIFICATION OF COMPARABLE COMPANIES AND ALSO ERRED IN RELYING ON THE INFORMATION AVAILABLE THE TIME OF ASSESSMENT FOR DETERMINING ARMS LENGTH PRICE BUT NOT AVAILABLE AT THE TIME OF COMPLYING WITH THE TRANSFER PRICING REGULATIONS. 3. CONSIDERATION OF COMPANIES AS COMPARABLE WHICH WERE NOT AVAILABLE IN PUBLIC DOMAIN AT THE TIME OF COMPLYING WITH THE REGULATIONS ERRED ON FACTS AND IN LAW BY CONSIDERING COMPANIES (NAMELY DEKI ELECTRONI CS LIMITED AND TIBREWALA ELECTRONICS LIMITED, WHICH WERE NOT AVAILABLE IN PUBLIC DOMAIN AT THE TIME OF COMPLYING WITH THE DOCUMENTATION REQUIREMENTS AND ADDED VERY RECENTLY IN PUBLIC DATABASES) AS COMPARABLE AND THUS DEFEATING THE INTENTION AND PURPOSE OF USING CONTEMPORANEOUS DATA IN ARRIVING AT ARMS LENGTH COMPARABILITY ANALYSIS. 5. USE OF SINGLE YEAR DATA ERRED IN CONSIDERING THE OPERATING MARGINS ERRED BY THE COMPANIES IDENTIFIED AS COMPARABLE BASED ON THE FINANCIAL DATA PERTAINING TO THE IDENTIFIED AS COMPARABLE BASED ON THE FINANCIAL DATA PERTAINING TO THE FINANCIAL Y EAR ENDED 31 ST MARCH 2006 ONLY AND REJECTING THE FINANCIAL DATA OF SUCH COMPANIES FOR PERIOD TWO YEARS FOR DETERMINING THE ARMS LENGTH PRICE OF INTERNATIONAL TAXATIONS. 9. DISALLOWANCE OF STOCK WRITTEN - OFF IN DOMESTIC TARIFF AREA (DTA) UNIT ERRED ON FACT S AND IN LAW BY DISALLOWING THE DEDUCTION CLAIMED BY THE APPELLANT IN RESPECT OF STOCK WRITTEN - OFF AMOUNTING TO RS.1,387,520/ - WITHOUT APPRECIATING THE FACT THAT DISALLOWANCE OF OBSOLETE STOCK WRITTEN - OFF IS NOT A PROVISION FOR OBSOLESCENCE BUT AN ACTUAL L OSS ALLOWABLE UNDER SECTION 28/37(1) OF THE ACT AND ALSO WITHOUT APPRECIATING THAT ALL DOCUMENTARY EVIDENCES AS REQUIRED WERE SUBMITTED DURING THE COURSE OF ASSESSMENT PROCEEDINGS, SUPPORTING SUCH WRITE - OFF. 12. CLAIM OF DEDUCTION UNDER SECTION 10B OF THE ACT FROM THE TOTAL INCOME AND NOT AT SOURCE LEVEL (I.E. INCOME FROM THE ELIGIBLE UNIT) ERRED IN FACTS AND IN LAW BY ALLOWING THE CLAIM OF DEDUCTION UNDER SECTION 10B OF THE ACT FROM TOTAL INCOME INSTEAD OF AT SOURCE LEVEL (I.E. FROM THE PROFIT OF ELIGIBL E UNIT OF THE APPELLANT). 13. SET - OFF OF BROUGHT FORWARD UNABSORBED DEPRECIATION BEFORE CLAIMING OF DEDUCTION UNDER SECTION 10B OF THE ACT ERRED IN HOLDING THAT DEDUCTION UNDER SECTION 10B OF THE ACT NEEDS TO BE ALLOWED AFTER SETTING - OFF BROUGHT FORWARD UNABSORBED DEPRECIATION OF EARLIER YEARS. ITA NO. 1 3 3 /PN/20 1 1 VISHAY COMPONENTS INDIA PVT. LTD. 3 15. ERRONEOUS LEVY OF INTEREST UNDER SECTION 234B OF THE ACT WITHOUT PREJUDICE TO THE GROUNDS ABOVE, IF THE TRANSFER PRICING ADJUSTMENT AND CORPORATE TAX ADJUSTMENT IS SUSTAINED THEN THE LEARNED ASSESSING OFFICE R HAS ERRED IN LEVYING INTEREST UNDER SECTION 234B OF THE ACT TO THE EXTENT ADDITION IS MADE TO THE TOTAL INCOME OF THE APPELLANT ON ACCOUNT OF TRANSFER PRICING ADJUSTMENT AND CORPORATE TAX RELATED MATTERS WITHOUT CONSIDERING THE FACT THAT SHORTFALL IN ADV ANCE TAX HAS RESULTED IN VIEW OF THE PROPOSED ADDITIONS TO TOTAL INCOME, WHICH ARE UNANTICIPATED IN NATURE. 2 . BEFORE ADJUDICATING THE ISSUE RAISED VIDE VARIOUS GROUNDS OF APPEAL, PASSING REFERENCE MAY BE MADE TO THE FACTS ARISING IN THE PRESENT APPEAL, WHEREIN THE ASSESSEE WAS INVOLVED IN MANUFACTURE OF RESISTORS AND CAPACITORS USED IN VARIOUS ELECTRONIC APPLICATIONS/PRODUCTS. THE ASSESSEE HAD ESTABLISHED A DOMESTIC TARIFF AREA UNIT AND EXPORT ORIENTED UNIT , WHERE EXPORTS WERE BEING MADE TO OVERSEAS GRO UP ENTITIES. THE ASSESSMENT IN THE CASE OF ASSESSEE WAS MADE UNDER SECTION 143(3) R.W.S. 144C(13) OF THE ACT, WHEREIN THE INCOME WAS DETERMINED AT RS. 15,38,24,330/ - . THE ASSESSING OFFICER / TPO HAD MADE AN ADDITION OF RS. 10,98,07,842/ - BEING THE ADJUSTME NT MADE ON ACCOUNT OF INTERNATIONAL TRANSACTIONS WITH ASSOCIATE ENTERPRISES PERTAINING TO MANUFACTURING ACTIVITIES. THE TRIBUNAL VIDE ORDER DATED 25.05.2012 HAS NOTED THE CONTENTIONS OF ASSESSEE IN RESPECT OF COMPUTATION OF ARM'S LENGTH PRICE BY APPLYING TNMM METHOD AND SELECTING CERTAIN EXTERNAL COMPARABLES. THE TRIBUNAL VIDE PARA 7 ONWARDS HAD FIRST CONSIDERED THE ISSUE OF COMPUTATION OF OPERATING PROFIT MARGINS AT THE FIRST INSTANCE. THE TRIBUNAL IN TURN, RELYING ON COORDINATE BENCH DECISION HAD DECID ED THE ISSUE OF ADJUSTMENT ON ACCOUNT OF EXTRAORDINARY EXPENSES WHICH WERE LIKELY TO A FFECT THE PRICE / PROFIT IN THE O PEN MARKET AND HAD DIRECTED THE ASSESSING OFFICER / TPO TO EXAMINE THE CLAIM OF ASSESSEE IN THIS REGARD. THE SECOND ISSUE DECIDED BY THE TRIBUNAL WAS THE WORKING CAPITAL ADJUSTMENT TO BE ALLOWED TO THE ASSESSEE AND SINCE THE ISSUE WAS NOT EXAMINED BY LOWER AUTHORITIES, THE MATTER WAS SENT BACK TO THE ASSESSING OFFICER / TPO TO EXAMINE THE CLAIM OF ASSESSEE RELATING ITA NO. 1 3 3 /PN/20 1 1 VISHAY COMPONENTS INDIA PVT. LTD. 4 TO WORKING CAPITAL ADJUS TMENT. THE NEXT ISSUE BEFORE THE TRIBUNAL WAS IN RELATION TO SELECTION / REJECTION CRITERIA OF COMPARABLE COMPANIES AND THE SAME WAS AGAIN SET ASIDE TO THE ASSESSING OFFICER TO RE - EXAMINE THE MATTER IN LINE WITH THE DIRECTIONS. THE ALTERNATE PLEA RAISED B Y THE ASSESSEE WAS THAT THE TRANSFER PRICING ADJUSTMENT HAS TO BE MADE WITH REFERENCE TO VALUE OF INTERNATIONAL TRANSACTION WITH THE ASSOCIATE ENTERPRISES ALONE AND NOT ON THE TOTAL TURNOVER. THE SAID PLEA OF THE ASSESSEE WAS ALLOWED AND THE ISSUE OF DETE RMINATION OF ARM'S LENGTH PRICE OF INTERNATIONAL TRANSACTION WAS SENT BACK TO THE FILE OF ASSESSING OFFICER TO RE - WORK THE SAME. THE TRIBUNAL THEREAFTER, VIDE PARA 27 ONWARDS CONSIDERED THE ISSUE RAISED BY THE ASSESSEE VIDE GROUNDS OF APPEAL NO.10 AND 11 RELATING TO MANNER OF COMPUTATION OF DEDUCTION UNDER SECTION 10B OF THE ACT. 3 . THE ASSESSEE NOW, BEFORE US HAS AGITATED THAT CERTAIN GROUNDS OF APPEAL WHICH ARE IN RELATION TO THE TRANSFER PRICING ADJUSTMENT TO BE MADE IN THE APPEAL WHICH ARE IN RELATION TO THE TRANSFER PRICING ADJUSTMENT TO BE MADE IN THE HANDS OF ASSESSEE WERE NOT A DJUDICATED BY THE TRIBUNAL IN THE FIRST ROUND OF APPEAL. THE FIRST SUCH ISSUE RAISED BY THE ASSESSEE WAS AGAINST THE ACTION OF TPO IN CONDUCTING FRESH SEARCH FOR IDENTIFYING ADDITIONAL COMPARABLE COMPANIES AT THE TIME OF ASSESSMENT PROCEEDINGS AND THEREAF TER RELYING ON INFORMATION AVAILABLE AT THE TIME OF ASSESSMENT PROCEEDINGS FOR DETERMINING ARM'S LENGTH PRICE, BUT WHICH WAS NOT AVAILABLE AT THE TIME OF COMPLYING WITH TRANSFER PRICING REGULATIONS. IN THIS REGARD, FURTHER GROUND OF APPEAL NO.3 HAS BEEN R AISED BY ASSESSEE THAT THE TPO / ASSESSING OFFICER CONSIDERED SOME COMPANIES AS COMPARABLE WHOSE DATA WAS NOT AVAILABLE IN PUBLIC DOMAIN AT THE TIME OF COMPLYING WITH THE REGULATIONS, ESPECIALLY WITH REFERENCE TO COMPANIES I.E. DEKI ELECTRONICS LTD. AND TI BREWALA ELECTRONICS LTD. BY WAY OF GROUND OF APPEAL NO.5, THE ASSESSEE IS AGGRIEVED BY THE ORDER OF ASSESSING OFFICER / TPO/DRP AND USING SINGLE YEARS DATA FOR COMPUTING PLI OF ITA NO. 1 3 3 /PN/20 1 1 VISHAY COMPONENTS INDIA PVT. LTD. 5 COMPARABLES AND BY REJECTING THE FINANCIAL DATA OF SUCH COMPANIES FOR THE PRI OR TWO YEARS FOR DETERMINING THE ARM'S LENGTH PRICE OF INTERNATIONAL TRANSACTION. 4 . THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE STRESSED THAT THE TRANSFER PRICING DATA IS TO BE COMPILED BY THE ASSESSEE AS PER THE PROVISIONS OF RULE 10D OF INCO ME TAX RULES, 1962 (IN SHORT THE RULES) AND ONLY THE INFORMATION AVAILABLE IN THE PUBLIC DOMAIN AS ON DUE DATE OF FILING THE ORIGINAL RETURN OF INCOME CAN BE TAKEN INTO ACCOUNT IN DETERMINING THE ARM'S LENGTH PRICE. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE REFERRING TO THE PROVISIONS OF RULE 10D(1) OF THE RULES, POINTED OUT THAT THE DETAILS OF ADJUSTMENT ARE ENUMERATED THEREIN AND THE SAME CANNOT BE MADE ON THE BASIS OF DATA WHICH COMES INTO PUBLIC DOMAIN ON LATER DATE. THE LEARNED AUTHORI ZED REPRESENTATIVE FOR THE ASSESSEE IN THIS REGARD PLACED RELIANCE ON THE RATIO LAID DOWN BY HONBLE BOMBAY HIGH COURT IN SCINDIA STEAM NAVIGATION CO. LTD. VS. CIT (1954) 26 ITR 686 (BOM) AND POINTED OUT THAT THOUGH THE PRINCIPLE OF CIT (1954) 26 ITR 686 (BOM) AND POINTED OUT THAT THOUGH THE PRINCIPLE OF HONBLE BOMBAY HIGH COU RT IS OLD, BUT THE SAME APPLIES. HE STRESSED THAT WHERE THE TPO TAKES UP ASSESSMENT PROCEEDINGS ON AN EARLIER DATE, THEN THE DATA WHICH IS NOT AVAILABLE AT THAT TIME W OULD NOT BE USED BUT IN CASE PROCEEDINGS ARE TAKEN UP ON A LATER DATE AND THE DATA WHICH IS AVAILABLE ON A LATER DATE IS UTILIZED, THEN THE PERSON IN WHOSE CASE THE PROCEEDINGS ARE TAKEN UP ON A LATER DATE WOULD BE AT DIFFERENT STAND. HE REFERRED TO THE SEQUENCE OF EVENTS FILED IN THE PAPER BOOK AND POINTED OUT THAT THE TP STUDY REPORT WAS P REPARED BY THE ASSESSEE ON 14.11.2006, WHERE THE DATE OF FILING THE FORM NO.3CEB WAS 29.11.2006 . HOWEVER, THE FINANCIALS OF TWO CONCERNS I.E. THE DATA OF TIBREWALA ELECTRONICS LTD. CAME INTO PUBLIC DOMAIN ON 25.03.2008 AND DATA OF DEKI ELECTRONICS LTD. CA ME INTO PUBLIC DOMAIN ON 26.12.2008 AND THE DATA OF SAID TWO CONCERNS WAS USED BY THE TPO, WHO CARRIED OUT SEARCH ON 24.08.2009. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE REFERRED ITA NO. 1 3 3 /PN/20 1 1 VISHAY COMPONENTS INDIA PVT. LTD. 6 TO THE SEARCH CARRIED OUT BY THE ASSESSEE BY THE NAME OF SUCH CONCERN S AND POINTED OUT THAT THE AFORESAID DATA CAME INTO PUBLIC DOMAIN ON A LATER DATE. HE STRESSED THAT UNDER RULE 10 B (4) OF THE RULES, THE DATA TO BE USED FOR TRANSFER PRICING SHOULD BE CONTEMP ORANEOUS AND SHOULD EXIST LATEST BY SPECIFIC DATA. ANOTHE R PROPOSITION RAISED BY THE ASSESSEE WAS RECOGNITION OF STATUTORY INTERPRETATION I.E. ONLY INFORMATION AVAILABLE IN THE PUBLIC DOMAIN AS ON DUE DATE OF FILING THE ORIGINAL RETURN OF INCOME CAN BE TAKEN INTO ACCOUNT IN DETERMINING THE ARM'S LENGTH PRICE AND FURTHER IT WAS NOT OPEN TO THE TPO TO TAKE INTO ACCOUNT INFORMATION COMING INTO PUBLIC DOMAIN SUBSEQUENTLY AND NOT AVAILABLE AT THE TIME OF PREPARATION OF TP REPORT. FOR THIS PROPOSITION, THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE IN HIS WRIT TEN SUBMISSIONS SUBMITTED AS UNDER: - (A) ANY OTHER INTERPRETATION WOULD LEAD TO COMPLETE ARBITRARINESS AND WOULD COMPLETELY VIOLATE THE PRINCIPLE OF EQUALITY BEFORE THE LAW AS DIFFERENT ASSESSEES WOULD SUFFER WIDELY DIFFERING CONSEQUENCES DEPENDING ONLY U PON WHEN THEIR ASSESSMENTS WERE MADE. (B) ANY OTHER INTERPRETATION WOULD VIOLATE THE PRINCIPLE THAT NO PERSON CAN BE COMPELLED TO PERFORM THE IMPOSSIBLE. (C) ANY INTERPRETATION OF LAW WHICH LEADS TO ABSURDITY IS TO BE AVOIDED. 5 . HE FURTHER POINTED OUT THAT THIS FACTUAL ISSUE WAS BROUGHT TO THE NOTICE OF ASSESSING OFFICER / TPO AND ALSO BEFORE THE DRP, BUT THE SAME HAS BEEN BRUSHED ASIDE. HE FURTHER STATED THAT NO PERSON COULD BE COMPELLED OR EXPECTED TO DO SOMETHING IMPOSSIBLE AS ON THE DATE OF COMPIL ING THE DATA FOR TH E TRANSFER PRICING PROVISIONS AS THE INFORMATION AVAILABLE IN PUBLIC DOMAIN IS APPLIED AND THE ASSESSEE CANNOT BE EXPECTED TO TAKE INTO CONSIDERATION ANY DATA WHICH SUBSEQUENTLY COMES INTO PUBLIC DOMAIN. SUCH AN EXPECTATION FROM THE DEP ARTMENT WOULD LEAD TO ABSURDITY AND THE ASSESSEES TAX LIABILITY AND PENAL LIABILITY WOULD DEPEND ON CHANCE AND NOT UPON LAW SINCE IT WOULD BE DEPENDENT WHEN THE TRANSFER PRICING IS MADE. HE STRESSED THAT IN SUCH ITA NO. 1 3 3 /PN/20 1 1 VISHAY COMPONENTS INDIA PVT. LTD. 7 SCENARIO, EVERY ASSESSEE WOULD BE IN DEFAU LT AS FAR AS TRANSFER P RICING PROVISIONS ARE CONCERNED AND WOULD BE DEEMED GUILTY OF CONCEALMENT OF ITS INCOME. HE STRESSED THAT AN INTERPRETATION THAT LEADS TO ABSURD RESULTS OR MISCHIEF IS TO BE ESCHEWED. THE NEXT PROPOSITION RAISED BY THE LEARNED AUTH ORIZED REPRESENTATIVE FOR THE ASSESSEE WAS AGAINST THE USE OF SINGLE YEARS DATA. 6 . THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE IN TURN, REFERRED TO THE PROVISIONS OF SECTION 92(1) OF THE ACT, UNDER WHICH INCOME IS TO BE COMPUTED IN VIEW OF TRANSFER PRICING PROVISIONS. HE FURTHER REFERRED TO THE PROVISIONS OF SECTION 92C(3) OF THE ACT, WHERE THE ASSESSING OFFICER DURING THE COURSE OF PROCEEDINGS AND ON THE BASIS OF MATERIAL, INFORMATION OR DOCUMENTS IN HIS POSSESSION, IS OF THE OPINION THAT THE C ONDITIONS IN CLAUSE (A) TO (D) ARE NOT FULFILLED AND ON THAT BASIS, THE ASSESSING OFFICER IS TO COMPUTE THE ADJUSTMENT, IF ANY, ON ACCOUNT OF ARM'S LENGTH PRICE OF INTERNATIONAL ADJUSTMENT, IF ANY, ON ACCOUNT OF ARM'S LENGTH PRICE OF INTERNATIONAL TRANSACTIONS. BEFORE COMPUTING SUCH AN ADJUSTMENT, THE PROVISO TO THE S AID SECTION PROVIDES AN OPPORTUNITY TO THE ASSESSEE TO BE ALLOWED BY THE TPO. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE FURTHER STRESSED THAT AS PER THE SCHEME OF THE ACT, THE ASSESSEE WAS TO MAINTAIN DATA AS PER RULE 10 D (4) OF THE ACT , WHER EAS THE ASSESSING OFFICER HAS TO COMPUTE THE ARM'S LENGTH PRICE OF INTERNATIONAL TRANSACTIONS ON THE BASIS OF DOCUMENTS, INFORMATION, ETC. WHICH IS AVAILABLE IN PUBLIC DOMAIN. OUR ATTENTION WAS DRAWN TO THE PROVISIONS OF RULE 10 B (4) OF THE RULES, WHERE IT IS PROVIDED THAT THE RELEVANT YEAR DATA IS TO BE USED FOR COMPUTATION OF TRANSFER PRICING ADJUSTMENT AND THE PROVISO UNDER THE RULE PROVIDES THAT IF THERE ARE FLUCTUATIONS IN PROFITABILITY DUE TO CERTAIN FACTORS, THEN THE LEGISLATURE HAS PROVIDED THAT PRO VISIONS OF TWO YEARS DATA MAY BE APPLIED. SECTION HOWEVER, REQUIRES THE CURRENT YEAR S DATA TO BE TAKEN AND ONLY WHEN EARLIER YEAR DATA IS AFFECTING THE ITA NO. 1 3 3 /PN/20 1 1 VISHAY COMPONENTS INDIA PVT. LTD. 8 PROFITS OF THIS YEAR , THEN DATA OF OTHER YEARS IS TO BE TAKEN. IN THIS REGARD, THE LEARNED DEPARTMENT AL REPRESENTATIVE FOR THE REVENUE PLACED RELIANCE ON THE RATIO LAID DOWN BY BANGALORE SPECIAL BENCH OF TRIBUNAL IN AZTEC SOFTWARE AND TECHNOLOGY VS. ACIT (2007) 107 ITD 141 (BANG). THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE FURTHER POINTED OU T THAT WHERE SEARCH HAS BEEN UNDERTAKEN BY THE ASSESSEE, THEN ALSO THERE WERE VARIATIONS IN DATA. HE FURTHER QUESTIONED THAT ARE WE TO SAY THAT REVENUE IS BOUND BY DATA ON WHICH THE ASSESSEE DOES SEARCH. IN THE TP STUDY, THE AUDITOR JUSTIFIES ADJUSTMENT ON THE BASIS OF SEARCH CONDUCTED BY HIM, SO SAME JUSTIFICATION IS TO BE APPLIED WHEN THE ASSESSING OFFICER HAS TO DO SEARCH. HE POINTED OUT THAT RULE 10D OF THE RULES WAS IN DIFFERENT CONTEXT I.E. ASKING THE ASSESSEE TO MAINTAIN THE DOCUMENTS, BUT THE TPO CAN TAKE INTO ACCOUNT MORE INFORMATION THAN WHAT WAS CONSIDERED BY THE ASSESSEE , WHICH COMES INTO HIS POSSESSION ON A LATER DATE. IN THIS REGARD, HE PLACED RELIANCE ON THE RATIO LAID DOWN BY MUMBAI BENCH OF TRIBUNAL IN ACIT VS. M/S. NGC NETWORK (INDIA) P VT. LTD. IN ITA NO.5307/M/2008, RELATING TO ASSESSMENT YEAR 2003 - 04, ORDER DATED 23.02.2011 AND ALSO FILED A NOTE ON USE OF CURRENT YEAR DATA INCLUDING VARIOUS CASE LAWS ON THE ISSUE. 7 . THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE IN REJOINDE R POINTED OUT THAT THE DECISION IN AZTEC SOFTWARE AND TECHNOLOGY VS. ACIT (SUPRA) WAS NOWHERE ON THE USE OF CONTEMP OR A NEOUS DATA . I T ONLY SAYS THAT COMPUTE THE ADJUSTMENT AS PER STATUTORY REGULATIONS I.E. REFERENCE IS MADE TO SECTION 92C OF THE ACT AND OT HER RULES AND REGULATIONS. REFERRING TO THE ARGUMENTS OF LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE, WHEREIN HE STATED THAT THE TPO CAN TAKE INTO ACCOUNT THE DATA AVAILABLE IN PUBLIC DOMAIN, HE POINTED OUT THAT UNDER THE PROVISIONS OF SECTION 92C A (3) OF THE ACT, CLAUSES (A) AND (B) ARE NOT APPLICABLE AND AS PER CLAUSE (C), THE CORRECTNESS OF ITA NO. 1 3 3 /PN/20 1 1 VISHAY COMPONENTS INDIA PVT. LTD. 9 THE DATA HAS TO BE JUDGED WITH REFERENCE TO PARTICULAR ISSUE I.E. ON THE DATA OF FILING OF RETURN OF INCOME . THE ASSESSING OFFICER COULD RELY ON MATERIAL, IN FORMATION, DOCUMENTS AVAILABLE WITH HIM, BUT THE SAME HAS TO BE READ WIT H RESPECT TO DATE OF FILING THE RETURN OF INCOME. IN R EPLY TO THE OBJECTIONS OF LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE WITH REFERENCE TO RULE 10D OF THE RULES, HE SAYS TH AT THE RULE 10D OF THE RULES DOES NOT ONLY REFER TO DOCUMENTATION BUT HAS TWO LIMBS AND THE SECOND LIMB IS MANDATORY. IN THIS REGARD, HE REFERRED TO HIS WRITTEN SUBMISSIONS . 8 . WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE ARISIN G BEFORE US IS IN RELATION TO THE TRANSFER PRICING ADJUSTMENT MADE IN THE CASE OF ASSESSEE. THE LINKED ISSUES TO THE DETERMINATION OF ARM'S LENGTH PRICE OF INTERNATIONAL TRANSACTION ENTERED INTO BY THE ASSESSEE WITH ITS ASSOCIATE ENTERPRISES HAS ALREADY B EEN DELIBERATED UPON BY THE TRIBUNAL AND AFTER DELIBERATIONS, THE ISSUES HAVE BEEN SENT BACK TO THE FILE OF ASSESSING OFFICER DELIBERATIONS, THE ISSUES HAVE BEEN SENT BACK TO THE FILE OF ASSESSING OFFICER WITH DIRECTIONS. IT WAS PUT TO THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE AS TO WHETHER AFTER PASSING OF THE ORDER OF TRIBUNAL, WHETHER ANY ADJUSTMENT ON ACCOUNT OF TRANSFER PRICING PROVISIONS HAS BEEN MADE IN THE HANDS OF ASSESSEE AND HE POINTED OUT THAT THE ARM'S LENGTH PRICE IS EVENTUALLY DETERMINED TO BE WITHIN +/ - 5%. HOWEVER, AN APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDERS OF AUTHORITIES BELOW AND HENCE, THE PRESENT ISSUES NEED TO BE ADJUDICATED WHICH W ERE ORIGINALLY NOT ADJUDICATED BY THE TRIBUNAL IN THE FIRST ROUND OF APPEAL. 9 . NOW, COMING TO THE ISSUE RAISED BY THE ASSESSEE. THE ASSESSEE IS AGGRIEVE D BY SEARCH CARRIED OUT BY THE ASSESSING OFFICER FOR IDENTIFYING ADDIT IONAL COMPARABLE COMPANIES AT THE TIME OF ASSESSMENT PROCEEDINGS AND IN THIS REGARD USING NON - CONTEMP O R ANEOUS DATA I.E. THE DATA WHICH WAS NOT ITA NO. 1 3 3 /PN/20 1 1 VISHAY COMPONENTS INDIA PVT. LTD. 10 AVAILABLE IN PUBLIC DOMAIN WHEN THE ASSESSE E COMPILED ITS TRANSFER PRICING REPORT. THE ASSESSEE IS ALSO AGGRIEVED BY THE INFORMATION BEING AVAILABLE IN PUBLIC DOMAIN ON A LATER DATE, WHICH IN TURN, WAS NOT AVAILABLE AT THE TIME OF COMPLYING WITH THE DOCUMENTATION REQUIREMENTS. ANOTHER OBJECTION R AISED BY THE ASSESSEE WAS THE LATE AVAILABILITY OF CERTAIN DATA IN PUBLIC DOMAIN I.E. IN CASE THE TRANSFER PRICING PROCEEDINGS WERE INITIATED ON AN EARLY DATE, THEN THE SAID DATA BEING NOT AVAILABLE IN PU BLIC DOMAIN COULD NOT BE USED BY THE ASSESSING OFFIC ER / TPO AND SINCE IN THE PRESENT CASE, THE TRANSFER PRICING PROCEEDINGS WERE TAKEN UP ON VERY LATE DATE, THE DATA WHICH WAS SUBSEQUENTLY IN PUBLIC DOMAIN AS LATE AS IN 2008 FOR THE YEAR ENDING 31.03.2006 WAS USED AND THE SAME SHOULD NOT BE USED. ANOTHER LINKED OBJECTION WAS TO THE USE OF SINGLE YEARS DATA AS AGAINST THE ASSESSEE RELYING ON FINANCIAL DATA OF THE COMPANIES FOR THE PRIOR TWO YEARS FOR DETERMINING THE ARM'S LENGTH PRICE OF INTERNATIONAL TRANSACTION. 10. WE MAY FIRST TAKE UP THE LAST ISSUE RAISED BY THE ASSESSEE WITH REGARD TO ADOPTION OF SINGLE YEARS DATA. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE IN THIS REGARD HAS FILED WRITTEN SUBMISSIONS AND HAS POINTED OUT THAT UNDER RULE 10B(4) OF THE RULES, THERE IS MANDATE TO USE ON LY CURRENT YEAR S DATA. IN THIS REGARD, HE FURTHER PLACED RELIANCE ON SERIES OF DECISION BY DIFFERENT BENCHES OF TRIBUNAL. HE FURTHER STATED THAT THE ASSESSEE WHILE COMMENTING ON THE FILTER OF EXCLUDING COMPANIES, WHICH HAVE DECLINING REVENUE O R WERE MA KING PERSISTENT LOSSES, THE ASSESSEE HAD ARGUED THAT IT HAD USED MULTIPLE YEARS DATA FOR HIS COMPARABILITY STUDY, WHICH WAS DENIED TO THE ASSESSEE WHILE COMPUTING ARM'S LENGTH PRICE OF COMPARABLES. HE POINTED OUT THAT THERE WAS NO MERIT IN THE CONTENTION OF ASSESSEE IN THIS REGARD AND THOUGH THE ACT ORDINARILY PROHIBITS USE OF MULTIPLE YEARS DATA FOR COMPARABILITY, THE MULTIPLE YEAR DATA IN THE CASE ITA NO. 1 3 3 /PN/20 1 1 VISHAY COMPONENTS INDIA PVT. LTD. 11 OF A COMPARABLE COULD BE USED ONLY TO UNDERSTAND ITS PECULIAR CIRCUMSTANCES. HE FURTHER REFERRED TO OECD RE VISED GUIDELINES IN THIS REGARD, WHICH DISTINGUISH BETWEEN USE OF MULTIPLE YEARS DATA FOR FUNCTIONAL ANALYSIS AND FOR STATISTICAL PURPOSES I.E. FOR COMPUTING ARITHMETIC MEAN I.E. PARA 3.75 TO 3.79 OF OECD REVISED GUIDELINES. HE STRESSED THAT THE ASSESSEE HAS CONFUSED THE USE OF MULTIPLE YEARS DATA FOR FU NCTIONAL ANALYSIS OF COMPARABLES WITH THE USE OF SAME FOR WOR KING OUT THE PLI OF COMPARABLES . W HERE COMPARABLE COMPANIES ARE SELECTED, MARGINS OF THE CURRENT YEAR ONLY HAVE TO BE CONSIDERED, SO THAT THERE IS NO INCONSISTENCY. FOR DECIDING THE ISSUE OF USE OF CURRENT YEARS DATA VIS - - VIS THE USE OF EARLIER TWO YEARS DATA AS CANVASSED BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE AT LENGTH, THE R ELEVANT PROVISIONS TO BE TAKEN NOTE OF ARE RULE 10 B(4) OF THE RULES. READING THE PROVISIONS OF SAID RULES, IT PROVIDES THAT FOR COMPUTATION OF ARM'S LENGTH PRICE, THE DATA PERTAINING TO THE FINANCIAL YEAR TO WHICH THE INTERNATIONAL TRANSACTION PERTAINS SHALL ALONE BE USED. THE WORD USED IN THE RULE IS SHALL AND HENCE, THE PROVISIONS OF RULE 10B(4) OF THE RULES WHICH PROVIDES THE COMPUTATION OF PROCEDURE FOR WORKING OUT THE ARM'S LENGTH PRICE UNDER SECTION 92C OF THE ACT ARE TO BE APPLIED. UNDER THE PROVISO, IT IS FURTHER PROVIDED THAT EARLIER YEARS D ATA RELATING TO UP TO TWO YEARS MAY ALSO BE CONSIDERED TO ANALYZE, IF CERTAIN FACTS HAD AN INFLUENCE ON THE DETERMINATION OF TRANSFER PRICE IN RELATION TO THE TRANSACTIONS BEING COMPARED. READING THE PROVISIONS OF THE ACT, IT ENTAILS THAT THE EARLIER YEAR S DATA CAN BE USED IN CONJUNCTION WITH THE CURRENT YEARS DATA IN CASE WHERE THE DATA REVEALED THE FACTS INFLUENCING THE DETERMINATION OF TRANSFER PRICING IN THE YEAR UNDER CONSIDERATION. BOTH THE OECD GUIDELINES AND RULE 10B(4) OF THE RULES IN THE MAIN P ROVISIONS PROVIDED THAT THE DATA TO BE USED FOR ANALYZING THE COMPARABILITY OF UNCONTROLLED TRANSACTIONS WITH INTERNATIONAL TRANSACTION SHALL BE ITA NO. 1 3 3 /PN/20 1 1 VISHAY COMPONENTS INDIA PVT. LTD. 12 THE DATA RELATING TO FINANCIAL YEAR IN WHICH INTERNATIONAL TRANSACTION HAD BEEN ENTERED INTO. 1 1 . SIMILAR IS SUE AROSE BEFORE THE PUNE BENCH OF TRIBUNAL IN EATON INDUSTRIES PVT. LTD. VS. ACIT IN ITA NO.1622/PN/2011, RELATING TO ASSESSMENT YEAR 2007 - 08 AND THE TRIBUNAL VIDE ORDER DATED 28.02.2013 DELIBERATED UPON THE ISSUE OF USE OF SINGLE YEARS DATA AS AGAINST T HE CLAIM OF ASSESSEE TO COMPUTE THE PLI OF COMPARABLES ON THE BASIS OF MULTIPLE YEARS DATA I.E. INCLUSIVE OF PRECEDING TWO YEARS. THE TRIBUNAL IN THIS REGARD OBSERVED AS UNDER: - 7. ANOTHER ASPECT WHICH HAS BEEN CANVASSED BY THE ASSESSEE IS TO THE EFFECT THAT THE TPO HAS BENCH - MARKED THE INTERNATIONAL TRANSACTIONS OF THE ASSESSEE AFTER COMPUTING THE PLI OF THE COMPARABLE COMPANIES BASED ON FINANCIAL DATA OF THE RELEVANT FINANCIAL YEAR 2006 - 07 ALONE, AS AGAINST ASSESSEES CLAIM TO COMPUTE PLI OF THE COMPAR ABLE CASES ON THE BASIS OF MULTIPLE YEARS DATA INCLUSIVE OF PRECEDING TWO YEARS. ON THIS ASPECT, THE ASSESSEE CONTENDED THAT USE OF A SINGLE YEAR DATA I.E. FOR F.Y. 2006 - 07 FOR DETERMINING THE PLI OF THE COMPARABLE CASES IS NOT JUSTIFIED AND THAT IT WOUL D BE MORE APPROPRIATE TO CONSIDER THE FINANCIAL DATA AVAILABLE OF THE COMPARABLE MORE APPROPRIATE TO CONSIDER THE FINANCIAL DATA AVAILABLE OF THE COMPARABLE COMPANIES FOR A PERIOD OF EARLIER TWO YEARS I.E. 2004 - 05 AND 2005 - 06 ALSO. IT IS CANVASSED THAT AT THE TIME OF CONDUCTING TRANSFER PRICING STUDY BY THE ASSESSEE, THE FINANCIA L INFORMATION OF THE COMPARABLE COMPANIES FOR THE EARLIER TWO YEARS WAS AVAILABLE AND THEREFORE, IN TERMS OF RULE 10B(4) OF THE INCOME TAX RULES, 1962 (IN SHORT THE RULES) SUCH DATA WAS PERMISSIBLE TO BE UTILIZED. SIMILAR OBJECTIONS HAVE BEEN REITERATED EVEN BEFORE US. IN THIS CONNECTION, WE FIND THAT FOR DETERMINATION OF ALP U/S 92C(2) OF THE ACT, THE MANNER IS PRESCRIBED IN RULE 10B OF THE RULES. IN TERMS OF RULE 10B(4) OF THE RULES, IT IS PROVIDED THAT THE DATA TO BE USED IN ANALYZING THE COMPARA BILITY OF AN UNCONTROLLED TRANSACTION WITH AN INTERNATIONAL TRANSACTION SHALL BE THE DATA RELATING TO THE FINANCIAL YEAR IN WHICH THE INTERNATIONAL TRANSACTION HAS BEEN ENTERED INTO. THEREFORE, ON A BARE READING OF RULE 10B(4) OF THE RULES, NO FAULT CAN B E FOUND WITH THE STAND OF THE TPO IN DETERMINING THE PLI OF THE COMPARABLE COMPANIES ON THE BASIS OF FINANCIAL DATA FOR F.Y. 2006 - 07 WHICH CORRESPONDS TO THE ASSESSMENT YEAR UNDER CONSIDERATION IN WHICH THE IMPUGNED INTERNATIONAL TRANSACTIONS HAVE BEEN C ARRIED OUT. SO HOWEVER, THE PROVISO TO RULE 10B(4) OF THE RULES PRESCRIBES THAT DATA RELATING TO A PERIOD, NOT BEING MORE THAN TWO YEARS PRIOR TO SUCH FINANCIAL YEAR, MAY ALSO BE CONSIDERED IF SUCH DATA REVEALS FACTS WHICH COULD HAVE AN INFLUENCE ON THE D ETERMINATION OF TRANSFER PRICE IN RELATION TO THE TRANSACTIONS BEING COMPARED. THE SAID PROVISO IS SOUGHT TO BE INVOKED BY THE ASSESSEE TO JUSTIFY ITS CLAIM THAT THE FINANCIAL INFORMATION OF THE COMPARABLE COMPANIES FOR EARLIER TWO FINANCIAL YEARS OF 2004 - 05 AND 2005 - 06 BE ALSO CONSIDERED. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE WAS JUSTIFICATION FOR INVOKING OF THE PROVISO TO RULE 10B(4) INASMUCH AS THERE IS A VARIATION IN AVERAGE PLI OF THE FOUR COMPARABLE CASES ADOPTED BY THE ASSESSEE BASED ON THE SINGLE YEAR DATA VIS - - VIS THE PLI COMPUTED AFTER THE USE OF MULTIPLE YEARS DATA. IT WAS POINTED OUT THAT AFTER USING MULTIPLE YEARS DATA OF THE FOUR COMPARABLE CASES, THE AVERAGE ITA NO. 1 3 3 /PN/20 1 1 VISHAY COMPONENTS INDIA PVT. LTD. 13 PLI CAME TO 10.98% WHEREAS THE AVERAGE PLI FOR THE SAME SET OF FOUR COMPARABLE CASES AFTER USING SINGLE YEARS DATA FOR F.Y. 2006 - 07, CAME TO 27.04%. IT WAS THEREFORE, SUBMITTED THAT THE AFORESAID VARIATION REVEALS THAT THE SAME IS CAPABLE OF INFLUENCING DETERMINATION OF TRANSFER PRICING IN RELATION T O INTERNATIONAL TRANSACTION IN QUESTION AND THUS THE PROVISO TO RULE 10B(4) IS JUSTIFIABLY INVOKED IN THE PRESENT CASE BY THE ASSESSEE. 8. OSTENSIBLY, THE USE OF MULTIPLE YEARS DATA ON ONE HAND AND THE USE OF SINGLE YEAR DATA ON THE OTHER HAND IN THE PR ESENT CASE SHOWS DIFFERENCE IN AVERAGE PLI OF THE FOUR COMPARABLE CASES. SO HOWEVER, THE SAME DOES NOT MEET WITH THE REQUIREMENTS OF INVOKING THE PROVISO TO RULE 10B(4). PERTINENTLY, THE PROVISO CAN BE INVOKED IN A SITUATION WHERE DATA REVEALS FACTS WHI CH COULD HAVE AN INFLUENCE ON THE DETERMINATION OF TRANSFER PRICES IN RELATION TO THE TRANSACTIONS BEING COMPARED. THE VARIATION IN PLI BY ITSELF IS NOT A FACT TO JUSTIFY INVOKING OF THE SAID PROVISO, RATHER WHAT IS REQUIRED IS TO SHOW THAT THE DATA REVE ALS CERTAIN FACTS WHICH COULD POSSIBLY HAVE AN INFLUENCE ON DETERMINATION OF THE TRANSFER PRICE. QUITE CLEARLY, THE ASSESSEE HAS NOT DEMONSTRATED ANY QUALITATIVE PECULIARITIES IN THE DATA WHICH REVEAL FACTS THAT ARE POTENT TO JUSTIFY INVOKING OF THE PROVIS O TO RULE 10B(4) OF THE RULES IN THE PRESENT CASE. WE THEREFORE, FIND THAT IN THE PRESENT CASE, THE TPO MADE NO MISTAKE IN CONSIDERING SINGLE YEARS DATA PERTAINING TO F.Y. 2006 - 07 TO ARRIVE AT PLI OF THE COMPARABLE CASES IN ORDER TO DETERMINE THE TRANSFE R PRICE OF THE IMPUGNED INTERNATIONAL TRANSACTIONS OF THE ASSESSEE. THUS, ON THIS ASPECT, THE ASSESSEE HAS TO FAIL. 1 2 . SEVERAL BENCHES OF TRIBUNAL HAVE ALSO HELD THAT SINGLE YEARS DATA IS TO BE USED WHILE COMPUTING THE PLI OF COMPARABLE COMPANIES. THE CONTENTION OF THE ASSESSEE THAT BY MULTIPLE YEARS DATA OF THE COMPARABLE COMPANIES, THE AVERAGE PLI OF SET OF COMPARABLES WOULD BE WITHIN +/ - 5% MARGINS CANNOT BE APPLIED AS THE VARIATION IN PLI BY ITSELF DOES NOT JUSTIFY INVOKING OF THE SAID PROVISO. THE ASSESSEE HAS TO ESTABLISH THAT THE DATA REVEALS CERTAIN FACTS WHICH COULD HAVE THE INFLUENCE ON THE DETERMINATION OF TRANSFER PRICE. WHERE WE FIND THAT THE ASSESSEE BEFORE US HAS FAILED TO DEMONSTRATE ANY QUALITATIVE PECULIARITIES IN THE DATA WHICH WOULD JUSTIFY INVOKING THE PROVISO TO RULE 10B(4) OF THE RULES IN THE PRESENT CASE AND HENCE, WE FIND NO MISTAKE IN THE ORDER OF ASSESSING OFFICER IN CONSIDERING THE SINGLE YEARS DATA PERTAINING TO ASSESSMENT YEAR 2006 - 07 TO ARRIVE AT THE PLI OF COMPARABLE CAS ES IN ORDER DETERMINE THE TRANSFER PRICE OF INTERNATIONAL TRANSACTION CONDUCTED BY THE ASSESSEE. THUS, THE GROUND OF APPEAL NO.5 RAISED BY THE ASSESSEE IN THIS REGARD IS REJECTED. ITA NO. 1 3 3 /PN/20 1 1 VISHAY COMPONENTS INDIA PVT. LTD. 14 1 3 . NOW, COMING TO THE STAND OF ASSESSEE WITH REGARD TO FRESH SEARCH UNDER TAKEN AT THE TIME OF ASSESSMENT PROCEEDINGS. 1 4 . UNDER SECTION 92D OF THE ACT, IT IS PROVIDED THAT EVERY PERSON WHO HA S ENTERED INTO AN INTERNATIONAL TRANSACTION IS TO KEEP AND MAINTAIN SUCH INFORMATION AND DOCUMENTS IN RESPECT THEREOF AS MAY BE PRESCRI BED. RULE 10D OF THE RULES PRESCRIBES THE INFORMATION AND DOCUMENTS TO BE KEPT AND MAINTAIN ED UNDER SECTION 92D OF THE ACT. IT IS NOT ANY ONES CASE THAT THE ASSESSEE HAS NOT MAINTAINED SUCH DOCUMENTS AS PRESCRIBED UNDER RULE 10D OF THE RULES. THE PLEA OF THE ASSESSEE BEFORE US IS THAT BY WAY OF MAINTENANCE OF SUCH INFORMATION AND DOCUMENTS, THE ASSESSEE IS TO KEEP A RECORD OF ITS INTERNATIONAL TRANSACTIONS AND BY WAY OF CLAUSE (L) TO ALSO PREPARE THE DETAILS OF ADJUSTMENTS, IF ANY, MADE TO THE TRANSFER PRICES TO ALIGN THEM WITH ARM'S LENGTH PRICE S DETERMINED UNDER THESE RULES AND CONSEQUENT ADJUSTMENTS MADE TO THE TOTAL INCOME FOR TAX PURPOSES. THE PROVISO UNDER SUB - RULE (2) TO RULE 10 D OF THE RULES PROVIDES THAT THE ASSESSEE SHALL BE REQUIRED TO SUBSTA NTIATE, ON THE BASIS OF MATERIAL AVAILABLE WITH HIM, THAT INCOME ARISING FROM INTERNATIONAL TRANSACTION ENTERED INTO BY HIM HAS BEEN COMPUTED IN ACCORDANCE WITH SECTION 92 OF THE ACT. FURTHER, INFORMATION WHICH IS SPECIFIED IN SUB - RULE (1) IS TO BE SUPPOR TED BY AUTHENTIC DOCUMENTS W HICH INCLUDE VARIOUS PUBLICATIONS, REPORTS AND FINANCIAL STATEMENTS AS PER SUB - RULE (3) TO THE SAID RULE 10D OF THE RULES . UNDER SUB - RULE (4), IT IS PROVIDED THAT THE INFORMATION AND DOCUMENTS SPECIFIED UNDER SUB - RULES (1) AND (2) AS FAR AS POSSIBLE BE CONTEMPORANEOUS AND SHOULD EXIST LATEST BY SPECIFIED DATE REFERRED TO IN CLAUSE (4) OF SECTION 92 F OF THE ACT . ITA NO. 1 3 3 /PN/20 1 1 VISHAY COMPONENTS INDIA PVT. LTD. 15 15 . UNDER THE PROVISIONS OF SECTION 92F(4) OF THE ACT, THE SPECIFIED DATE IS THE SAME AS ASSIGNED TO DUE DATE IN EXPL ANATION (2) SUB - SECTION (1) OF SECTION 139 OF THE ACT. IN OTHER WORDS, THE DAT A WHICH IS TO BE USED BY THE ASSESSEE IN RELATION TO ITS INTERNATIONAL TRANSACTION VIS - - VIS TRANSFER PRICING PROVISIONS SHOULD BE SUCH WHICH IS AVAILABLE BY THE DUE DATE OF FIL ING THE RETURN OF INCOME. FIRST ONUS IS UPON THE ASSESSEE TO JUSTIFY THAT THE INTERNATIONAL TRANSACTION ENTERED INTO BY IT WITH ITS ASSOCIATE ENTERPRISES IS AT ARM'S LENGTH PRICE, IN CASE IT IS COMPARED WITH UNCONTROLLED TRANSACTIONS I.E. TRANSACTIONS EN TERED INTO BY OTHER CONCERNS IN SIMILAR CIRCUMSTANCES. THIS DOCUMENTATION IS TO BE COMPILED BY THE ASSESSEE BY WAY OF TRANSFER PRICING REPORT IN ORDER TO JUSTIFY THE ARM'S LENGTH PRICE OF ITS INTERNATIONAL TRANSACTIONS . 16. U NDER SECTION 92C OF THE ACT , IT IS PROVIDED THAT ARM'S LENGTH PRICE IN RELATION TO INTERNATIONAL TRANSACTION SHALL BE DETERMINED BY FOLLOWING ANY OF THE METHODS PRESCRIBED THEREIN WHICH IS THE MOST APPROPRIATE METHOD, HAVING REGARD TO THE INTERNATIONAL TRANSACTION OR CLASS OF TRANSA CTIONS OR CLASS OF ASSOCIATED PERSONS OR FUNCTIONED PERFORMED BY SUCH PERSONS OR SUCH OTHER RELEVANT ENTITIES AS THE BOARD MAY PRESCRIBE. SUB - SECTION (2) THEREIN PROVIDES THAT THE MOST APPROPRIATE METHOD SHALL BE APPLIED FOR DETERMINATION OF ARM'S LENGTH PRICE IN THE MANNER AS MAY BE PRESCRIBED. SECTION 92C(3) OF THE ACT READS AS UNDER: - 92C . (1) .... . (2) ... .. (3) WHERE DURING THE COURSE OF ANY PROCEEDING FOR THE ASSESSMENT OF INCOME, THE ASSESSING OFFICER IS, ON THE BASIS OF MATERIAL OR INFORMATION OR DOCUMENT IN HIS POSSESSION, OF THE OPINION THAT (A) THE PRICE CHARGED OR PAID IN AN INTERNATIONAL TRANSACTION [OR SPECIFIED DOMESTIC TRANSACTION] HAS NOT BEEN DETERMINED IN ACCORDANCE WITH SUB - SECTIONS (1) AND (2); OR (B) ANY INFORMATION AND DOCUMENT REL ATING TO AN INTERNATIONAL TRANSACTION [OR SPECIFIED DOMESTIC TRANSACTION] HAVE NOT BEEN KEPT AND MAINTAINED BY THE ASSESSEE IN ACCORDANCE WITH THE PROVISIONS ITA NO. 1 3 3 /PN/20 1 1 VISHAY COMPONENTS INDIA PVT. LTD. 16 CONTAINED IN SUB - SECTION (1) OF SECTION 92D AND THE RULES MADE IN THIS BEHALF; OR (C) THE INFORMATION OR DATA USED IN COMPUTATION OF THE ARMS LENGTH PRICE IS NOT RELIABLE OR CORRECT; OR (D) THE ASSESSEE HAS FAILED TO FURNISH, WITHIN THE SPECIFIED TIME, ANY INFO RMATION OR DOCUMENT WHICH HE WAS REQUIRED TO FURNISH BY A NOTICE ISSUED UNDER SUB - SECTION (3) OF SECTION 92D , THE ASSESSING OFFICER MAY PROCEED TO DETERMINE THE ARM S LENGTH PRICE IN RELATION TO THE SAID INTERNATIONAL TRANSACTION [OR SPECIFIED DOMESTIC TRANSACTION] IN ACCORDANCE WITH SUB - SECTIONS (1) AND (2), ON THE BASIS OF SUCH MATERIAL OR INFORMATION OR DOCUMENT AVAILABLE WITH HIM. 17 . UNDER THE SAID SUB - SECTION , THE ASSESSING OFFICER DURING THE COURSE OF ANY PROCEEDINGS FOR ASSESSMENT OF INCOME, ON THE BASIS OF MATERIAL OR INFORMATION OR DOCUMENTS IN HIS POSSESSION, IS OF THE OPINION THAT THE CONDITIONS LAID IN CLAUSES (A) TO (D) ARE NOT FULFILLED, THEN THE ASSE SSING OFFICER MAY PROCEED TO DETERMINE THE ARM'S LENGTH PRICE IN RELATION TO SUCH INTERNATIONAL TRANSACTION IN ACCORDANCE WITH SUB - SECTION (1) AND (2), ON THE BASIS OF MATERIAL OR INFORMATION OR DOCUMENTS AVAILABLE WITH HIM. THE SAID EXERCISE OF POWER BY THE ASSESSING OFFICER IS AFTER AFFORDING AN OPPORTUNITY OF HEARING TO THE THE ASSESSING OFFICER IS AFTER AFFORDING AN OPPORTUNITY OF HEARING TO THE ASSESSEE TO SHOW CAUSE AS TO WHY THE ARM'S LENGTH PRICE SHOULD NOT BE SO DETERMINED ON THE BASIS OF MATERIAL OR INFORMATION OR DOCUMENTS IN THE POSSESSION OF ASSESSING OFFICER. 18 . UNDER SECTION 92CA OF THE ACT, WHERE THE ASSESSEE HAD ENTERED INTO INTERNATIONAL TRANSACTION IN ANY PREVIOUS YEAR AND WHERE THE ASSESSING OFFICER CONSIDERS IT NECESSARY OR EXPEDIENT, HE MAY WITH PREVIOUS APPROVAL OF THE COMMISSIONER REFER THE COMPUTATION OF ARM'S LENGTH PRICE IN RELATION TO THE SAID INTERNATIONAL TRANSACTION UNDER SECTION 92C OF THE ACT TO THE TPO. UNDER SECTION 92CA(3) OF THE ACT, THE TPO IS EMPOWERED TO DETERMINE THE ARM'S LENGTH PRICE IN RELATION TO THE INTERNATIONAL TRANSACTION IN AC CORDANCE WITH SUB - SECTION (3) OF SECTION 92C OF THE ACT. FOR DOING SO, THE TPO IS TO SERVE NOTICE UPON THE ASSESSEE REQUIRING HIM TO PRODUCE OR CAUSE TO BE PRODUCED, ANY ITA NO. 1 3 3 /PN/20 1 1 VISHAY COMPONENTS INDIA PVT. LTD. 17 EVIDENCE ON WHICH HE MAY RELY UPON IN SUPPORT OF COMPUTATION MADE BY HIM OF THE ARM'S LENGTH PRICE IN RELATION TO INTERNATIONAL TRANSACTION. AFTER HEARING SUCH EVIDENCE INCLUDING ANY INFORMATION OR DOCUMENTS REFERRED TO IN SECTION 92 C (3) OF THE ACT AND AFTER CONSIDERING SUCH EVIDENCE AS THE TPO MAY REQUIRE ON SPECIFIED DATE AND ALSO TAKIN G INTO ACCOUNT RELEVANT MATERIAL WHICH HE HAS GATHERED AND CONFRONTED TO ASSESSEE , THE TPO HAS TO PASS AN ORDER IN WRITING . H ENCE, UNDER THE PROVISIONS OF THE ACT, THE MACHINERY TO PASS AN ORDER FOR DETERMINATION OF ARM'S LENGTH PRICE OF AN INTERNATIONAL TRANSACTION ENTERED INTO BY ANY PERSON IS SO PROVIDED. IT IS NOT ONLY THE EVIDENCES WHICH ARE RELIED UPON BY THE ASSESSEE IN SUPPORT OF ITS COMPUTATION OF ARM'S LENGTH PRICE OF ITS INTERNATIONAL TRANSACTION BUT ALSO ANY OTHER EVIDENCE WHICH THE TPO MAY RE QUIRE ON SOME SPECIFIED POINTS OR THE INFORMATION WHICH MAY BE GATHERED BY THE TPO CAN BE USED BY THE TPO TO DETERMINE THE ARM'S LENGTH PRICE OF INTERNATIONAL TRANSACTION. UNDOUBTEDLY, THE ASSESSEE IS THE FIRST PERSON WHO IS TO COLLECT THE INFORMATION AND DOCUMENTS IN RESPECT OF ITS INTERNATIONAL TRANSACTION WHICH ARE ENLISTED UNDER RULE 10D OF THE RULES. BUT MERE COLLECTIONS OF DOCUMENTS AND COMPILATION OF DATA IS NOT THE ONLY RESPONSIBILITY OF THE ASSESSEE, WHO CAN BE ASKED TO PRODUCE SUCH OTHER EVIDENC E AS THE TPO MAY REQUIRE ON ANY POINTS. FURTHER, THE TPO IS ALSO EMPOWERED TO TAKE INTO ACCOUNT SUCH MATERIAL WHICH HE HAS GATHERED I.E. THE DATA. HOWEVER, THERE IS A RESTRICTION IN THE SECTION ITSELF THAT SUCH DATA SHOULD BE AVAILABLE IN PUBLIC DOMAIN. SUCH MATERIAL COLLECTED TO BE USED AGAINST ASSESSEE SHOULD BE PUT TO THE ASSESSEE TO EXPLAIN. FURTHER, AS DECIDED BY US IN THE PARAS HEREINABOVE IN VIEW OF RULE 10B(4) OF THE RULES, THE DATA SHOULD BE RELATABLE TO THE FINANCIAL YEAR IN WHICH THE INTERNAT IONAL TRANSACTION HAS BEEN ENTERED INTO. THUS, IT IS INCUMBENT UPON THE TPO TO ENSURE THAT ALL THE CONDITIONS PROVIDED UNDER THE ACT AND AS PER THE RULES ARE FULFILLED . ITA NO. 1 3 3 /PN/20 1 1 VISHAY COMPONENTS INDIA PVT. LTD. 18 19 . IN THE FACTS OF THE PRESENT CASE ITSELF, WE HAVE NOTED THAT THE ASSESSEE HAD PRE PARED ITS TRANSFER PRICING REPORT AND COMPUTED THE PLI OF COMPARABLES BY ADOPTING THE DATA FOR PRECEDING TWO YEARS. THE ASSESSEE IN ITS TRANSFER PRICING REPORT HAD NOT USED THE DATA OF THE YEAR IN WHICH THE INTERNATIONAL TRANSACTION HAD TAKEN PLACE TO BEN CHMARK ITS INTERNATIONAL TRANSACTION TO BE AT ARM'S LENGTH PRICE OR NOT. DURING THE COURSE OF TRANSFER PRICING PROCEEDINGS, THE TPO SHOW CAUSED THE ASSESSEE AS TO WHY INSTANT YEAR S DATA SHOULD NOT BE USED AND FURTHER COMPUTED THE ARITHMETIC MEAN OF PLI O F COMPARABLES ON THE BASIS OF DATA RELATING TO ASSESSMENT YEAR 2006 - 07. THE DATA COMPILED BY THE TPO RELATES TO ASSESSMENT YEAR 2006 - 07 OF THE LISTED COMPANIES WHICH WERE PICKED UP BY THE ASSESSEE ITSELF AS BEING COMPARABLES. HOWEVER, WHILE DOING THE SEA RCH PROCESS FOR BENCHMARKING THE INTERNATIONAL TRANSACTION, THE TPO INCLUDED TWO FURTHER COMPANIES I.E. DEKI ELECTRONICS LTD. AND TIBREWALA ELECTRONICS LTD. , DATA OF WHICH WAS CONFRONTED TO THE ASSESSEE. THE OBJECTION OF ASSESSEE TO THE INCLUSION OF ABOVE SAID CONCERNS WA S THAT THE DATA RELATING TO THE SAID CONCERNS WAS NOT AVAILABLE AT THE TIME OF COMPLYING WITH THE DOCUMENTATION REQUIREMENTS AND HAD COME INTO PUBLIC DOMAIN MUCH LATER . WE FIND NO MERIT IN THE CLAIM OF THE ASSESSEE THAT THE DATA OF COMPAN IES WHICH WERE NOT AVAILABLE IN PUBLIC DOMAIN AT THE TIME OF COMPLYING WITH DOCUMENTATION RE QUIREMENTS CANNOT BE CONSIDERED. THE COMPANIES WHICH ARE PICKED UP BY THE TPO ARE FUNCTIONALLY COMPARABLE TO THE ASSESSEE AND THE DATA WHICH HAS BEEN COMP ILED BY T HE TPO RELATES TO ASSESSMENT YEAR 2006 - 07 , AND WAS CONFRONTED TO THE ASSESSEE AND MERELY BECAUSE THE DATA CAME INTO PUBLIC DOMAIN AT A LATER DATE, THE SAME CANNOT BE IGNORED. THE TPO HAS POWER TO USE ANY DATA WHICH COMES INTO HIS POSSESSION AND SECTION HA S NOT PROVIDED ANY FETTERS TO THE COLLECTIONS OF DATA ON A PARTICULAR DAT E OR OTHERWISE AND USE OF SUCH DATA ; I N THE ABSENCE OF WHICH, THERE COULD NOT BE CURTAILMENT OF POWERS TO ITA NO. 1 3 3 /PN/20 1 1 VISHAY COMPONENTS INDIA PVT. LTD. 19 BE EXERCISED BY THE TPO FOR DETERMINING ARM'S LENGTH PRICE OF INTERNATIONAL T RANSACTION. MERELY BECAUSE, THE FINANCIAL RESULTS OF A CONCERN WHICH WE RE FUNCTIONALLY SIMILAR TO THE ASSESSEE CAME INTO PUBLIC DOMAIN ON A LATER DATE, BUT RELATE TO THE YEAR IN WHICH THE INTERNATIONAL TRANSACTION HAD BEEN UNDERTAKEN, CANNOT BE REJECTED O N THE SURMISE THAT THEY WERE NOT AVAILABLE ON THE DATE OF COMPILATION OF DOCUMENTATION AND / OR CAME IN THE PUBLIC DOMAIN LATER . THE ARGUMENT OF LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE BEFORE US IS THAT IF THE TP PROCEEDINGS O F A PARTICULAR CAS E HAD BEEN TAKEN UP ON AN EARLIER DATE WHEN NO SUCH DATA WAS AVAILABLE , WOULD PUT SUCH A PERSON ON AN ADVANTAGEOUS POSITION AS COMPARED TO PERSON WHOSE TP PROCEEDINGS WE RE TAKEN UP ON A LATER DATE WHEN INFORMATION IN RESPECT OF SUCH COMPARABLES WERE RECENT LY PUBLISHED. THE SEARCH PROCESS IS TO BE CARRIED OUT BY THE TPO WHO IN TURN, HAS TO DETERMINE THE ARM'S LENGTH PRICE OF INTERNATIONAL TRANSACTION ON THE BASIS OF INFORMATION AVAILABLE WITH HIM AND ONCE SUCH INFORMATION IS MADE AVAILABLE TO HIM, THEN THE SAME CAN BE APPLIED BY THE TPO AFTER CONFRONTING THE SAME TO ASSESSEE, TO COMPUTE THE TRANSFER PRICING ADJUSTMENT, IF ANY, IN THE HANDS OF THE ASSESSEE. A CCORDINGLY, THE TPO UNDER THE ACT IS FULLY JUSTIFIED I N CARRYING OUT THE FRESH SEARCH, IF NEEDED, FOR IDENTIFYING THE COMPARABLE COMPANIES, MAY BE ADDITIONAL AND PROCEED WITH TRANSFER PRICING PROCEEDINGS. SUCH DATA COLLECTED BY THE TPO CANNOT BE CALLED AS NON - CONTEMPORANEOUS , WHERE THE CONCERNS PICKED UP BY THE TPO ARE FUNCTIONALLY COMPARABLE AND THE DAT A FOR THE RELEVANT YEAR WA S AVAILABLE. 20. WE FIND SUPPORT FROM THE RATIO LAID DOWN BY THE BANGALORE SPECIAL BENCH IN AZTEC SOFTWARE AND TECHNOLOGY VS. ACIT (SUPRA), WHEREIN THE TRIBUNAL WHILE CONSIDERING THE STATUTORY PROVISIONS FOR DETERMINATION OF ARM'S LENGTH PRICE OF A TAXPAYER OBSERVED THAT THE BURDEN TO ESTABLISH THE TRANSACTION TO BE AT ARM'S LENGTH PRICE WAS UPON THE TAXPAYER, WHO HAD TO FURNISH COMPARABLE ITA NO. 1 3 3 /PN/20 1 1 VISHAY COMPONENTS INDIA PVT. LTD. 20 TRANSACTIONS, APPLY APPROPRIATE METHOD FOR DETERMINATION OF ARM'S LENGTH PRICE AND JUSTI FY THE SAME BY PRODUCING THE RELEVANT MATERIAL AND DOCUMENTS BEFORE THE REVENUE AUTHORITIES. WHERE THE REVENUE AUTHORITIES WERE NOT SATISFIED WITH THE ARM'S LENGTH PRICE AND SUPPORTING DOCUMENTS / INFORMATION FURNISHED BY THE TAXPAYER, THE TRIBUNAL HELD T HAT THE AUTHORITIES HAD AN AMPLE POWER TO DETERMINE THE SAME AND MAKE SUITABLE ADJUSTMENT. IN SUCH CASE, THE RESPONSIBILITY OF DETERMINATION OF ARM'S LENGTH PRICE IS SHIFTED TO THE REVENUE AUTHORITIES WHO ARE TO DETERMINE THE SAME IN ACCORDANCE WITH STATU TORY REGULATIONS. THE TRIBUNAL FURTHER WHILE CONCLUDING THE ISSUE HAD CONSIDERED THE BURDEN OF PROOF ON THE TAXPAYER AND THE REVENUE AUTHORITIES AND HAD OBSERVED AS UNDER: - 132. A DISPASSIONATE STUDY OF PROVISIONS OF VARIOUS COUNTRIES ON BURDEN OF PROOF, WOULD SHOW, THE FOLLOWING FUNDAMENTAL FEATURES: (I) THAT THE BURDEN TO ESTABLISH THAT INTERNATIONAL TRANSACTION IS CARRIED AT ALP, IS ON THE TAXPAYER WHO IS TO DISCLOSE ALL THE RELEVANT INFORMATION AND DOCUMENTS RELATING TO PRICES CHARGED AND PROFIT EARN ED WITH RELATED AND UNRELATED RELATING TO PRICES CHARGED AND PROFIT EARN ED WITH RELATED AND UNRELATED CUSTOMER. (II) IF THE ASSESSING OFFICER HAS DETERMINED AN ALP, OTHER THAN THE PRICE DECLARED BY THE ASSESSEE, ASSESSING OFFICER HAS TO PROVE THAT THE PRICE DETERMINED BY HIM IS RELIABLE AND REASONABLE AND CONFIRMS THE STATUTO RY REQUIREMENT UNLESS THE CASE IS COVERED BY SITUATION NO. (III) BELOW. (III) IN CASE OF FAILURE ON THE PART OF THE TAXPAYER TO COMPLY WITH THE STATUTORY PROVISIONS, THE TAX AUTHORITIES WOULD HAVE TO DETERMINE THE ALP. IN SUCH A SITUATION, BURDEN OF PROOF ON TAX AUTHORITIES IS MUCH REDUCED. 21. THEREAFTER, THE CONCLUSION OF THE TRIBUNAL WAS THAT THE TAXPAYER HAD TO COOPERATE WITH THE TAX AUTHORITIES BY FURNISHING RELEVANT INFORMATION. FURTHER, WHERE THE AUTHORITIES WERE OF THE VIEW THAT ARM'S LENGTH PRI CE WAS NOT CORRECTLY DETERMINED BY TAXPAYER, THEN THE SAME COULD BE SUBSTITUTED BY ARM'S LENGTH PRICE ON THE BASIS OF MATERIAL OR INFORMATION FURNISHED BY THE ASSESSEE OR COLLECTED BY THE REVENUE AUTHORITIES. IT WAS FURTHER HELD THAT SUCH ARM'S LENGTH PRI CE HAD TO BE DETERMINED BY KEEPING IN MIND THE PROVISIONS OF THE ACT AND ALSO THE PRINCIPLES OF NATURAL JUSTICE AND BE FAIR AND REASONABLE TO THE TAXPAYER ITA NO. 1 3 3 /PN/20 1 1 VISHAY COMPONENTS INDIA PVT. LTD. 21 AND ANY MATERIAL COLLECTED TO BE USED AGAINST THE TAXPAYER WAS TO BE PUT TO THE TAXPAYER TO EXPLAIN. IT WAS FURTHER HELD THAT THE ADJUSTMENTS MADE ON ACCOUNT OF ARM'S LENGTH PRICE BY TAX AUTHORITIES COULD BE DELETED IN APPEAL ONLY IF APPELLATE AUTHORITIES ARE SATISFIED AND RECORDS A FINDING THAT ARM'S LENGTH PRICE SUBMITTED BY THE ASSESSEE WAS FAIR AND R EASONABLE. THE RELEVANT FINDINGS OF THE TRIBUNAL ARE AS UNDER: - 133. HAVING REGARD TO THE STATUTORY PROVISIONS, PARTICULARLY THE MANDATE OF SECTIONS 92(1) AND 92D READ WITH RELEVANT RULES, WE HOLD THAT IT IS OBLIGATORY ON THE PART OF THE TAXPAYER TO FURN ISH INFORMATION RELATING TO CONTROLLED INTERNATIONAL TRANSACTIONS, SELECT A SUITABLE METHOD FOR DETERMINATION AND FURNISH ALP OF SUCH INTERNATIONAL TRANSACTIONS CARRIED BY IT AND GIVE BASIS AND SUPPORTING AUTHENTIC EVIDENCE OF ALP AND ADJUSTMENTS MADE. THE TAXPAYER HAS FURTHER TO COOPERATE IN THE DETERMINATION OF THE ALP BY THE TAX AUTHORITIES BY FURNISHING ALL RELEVANT INFORMATION. THE TAX AUTHORITIES IN CASES WHERE THEY ARE OF THE OPINION THAT ALP HAS NOT BEEN CORRECTLY DETERMINED BY THE TAXPAYER, CAN SUB STITUTE THEIR OWN ALP ON THE BASIS OF MATERIAL OR INFORMATION FURNISHED BY THE ASSESSEE OR COLLECTED BY THEM. HOWEVER, SUCH ALP HAS TO BE DETERMINED HAVING IN MIND PROVISIONS OF SECTIONS 92 AND 92C AND OTHER RULES AND REGULATIONS. WHILE DETERMINING ALP, TA X AUTHORITIES ARE BOUND TO FOLLOW PRINCIPLES OF NATURAL JUSTICE AND BE FAIR AND REASONABLE TO THE TAXPAYER. ANY MATERIAL COLLECTED TO BE USED AGAINST THE TAXPAYER IS TO BE PUT TO TAXPAYER TO EXPLAIN. HAVING REGARD TO THE PURPOSE OF THE LEGISLATION AND APPL ICATION OF SIMILAR ENACTMENT WORLD OVER, IT MUST FURTHER BE HELD THAT ADJUSTMENTS MADE ON ACCOUNT OF ALP BY TAX AUTHORITIES CAN BE DELETED IN APPEAL ONLY IF THE APPELLATE AUTHORITIES ARE AUTHORITIES CAN BE DELETED IN APPEAL ONLY IF THE APPELLATE AUTHORITIES ARE SATISFIED AND RECORDS A FINDING THAT ALP SUBMITTED BY THE ASSESSEE IS FAIR AND REASONABLE. MERELY BY FINDING FAULTS WITH THE TRANSFER PRICE DETERMINED BY THE REVENUE AUTHORITIES (AO/TPO), ADDITION ON ACCOUNT OF ADJUSTMENTS CANNOT BE DELETED. THIS IS BECAUSE THE MANDATE OF SECTION 92(1) IS THAT IN EVERY CASE OF INTERNATION AL TRANSACTION, INCOME HAS TO BE DETERMINED HAVING REGARD TO ALP. THEREFORE, UNLESS ALP FURNISHED BY THE TAXPAYER IS SPECIFICALLY ACCEPTED, THE APPELLATE AUTHORITIES ON THE BASIS OF MATERIAL AVAILABLE ON RECORD HAS TO DETERMINE ALP ITSELF. SUBJECT TO STATU TORY PROVISIONS, APPELLATE AUTHORITIES CAN DIRECT LOWER REVENUE AUTHORITIES TO CARRY THIS EXERCISE IN ACCORDANCE WITH LAW. THE MATTER CANNOT BE LEFT HANGING IN BETWEEN. ALP OF INTERNATIONAL TRANSACTION HAS TO BE DETERMINED IN EVERY CASE. 22. THE ABOVE SA ID PROPOSITION HAS BEEN LAID DOWN BY THE SPECIAL BENCH OF BANGALORE TRIBUNAL WHILE INTERPRETING THE TRANSFER PRICING PROVISIONS AND THE PRINCIPLE LAID DOWN BY THE SPECIAL BENCH OF TRIBUNAL IS APPLICABLE TO THE ISSUE BEFORE US . THE LEARNED AUTHORIZED REPRE SENTATIVE FOR THE ASSESSEE BEFORE US HAS PLACED RELIANCE ON THE RATIO LAID DOWN BY HONBLE BOMBAY HIGH COURT IN SCINDIA STEAM NAVIGATION CO. LTD. VS. CIT (SUPRA), WHEREIN THE ISSUE WAS THE APPLICABILITY OF AMENDED PROVISIONS OF THE ACT. THE QUESTION ARISI NG BEFORE THE ITA NO. 1 3 3 /PN/20 1 1 VISHAY COMPONENTS INDIA PVT. LTD. 22 HONBLE BOMBAY HIGH COURT WAS THAT IN CASE ANY PROVISION HAS BEEN AMENDED LATER, WERE SUCH AMENDED PROVISIONS TO BE APPLIED WHILE COMPLETING ASSESSMENT OF THE YEAR WHICH WAS PENDING AS ON THE DATE, ON WHICH THE AMENDMENT WAS BROUGHT IN OR AS PER THE PROVISIONS WHICH WERE APPLICABLE TO THE RELEVANT YEAR. THE HONBLE BOMBAY HIGH COURT DID NOT ACCEPT THE CONTENTION OF THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE IN THIS REGARD AS IT WOULD CAUSE STARTLING RESULTS. THE SAID PROPOSITION LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE BEFORE US, WHERE UNDER THE PROVISIONS OF THE ACT ITSELF, THE TPO IS EMPOWERED TO SUBSTITUTE THE ARM'S LENGTH PRICE ON THE BASIS OF MATERIAL OR INFORMATION FURNIS HED BY THE ASSESSEE OR COLLECTED BY HIM . IN CASE, SUCH AN AUTHORITY HAS BEEN DELEGATED TO THE TPO AND IN EXERCISE OF SUCH AUTHORITY, CERTAIN INFORMATION IS COLLECTED BY THE TPO, WHICH IN TURN, IS CONFRONTED TO THE ASSESSEE AND THEREON APPLIED TO DETERMINE THE ARM'S LENGTH PRICE OF INTERNATIONAL TRANSACTION, THE SAID EXERCISE OF THE JURISDICTION BY THE TPO CANNOT POSSIBLY BE QUESTIONED. ACCORDINGLY, WE FIND NO MERIT IN THE RELIANCE PLACED UPON BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE FURTHER RELIED UPON ON OTHER DECISIONS WHICH ARE FACTUALLY DIFFERENT FROM THE ISSUE BEFORE US. ACCORDINGLY, WE FIND NO MERIT IN THE CLAIM OF ASSESSEE IN THIS REGARD AND UPHOLDING THE ACTION OF TPO, THE G ROUNDS OF APPEAL NO.2 AND 3 RAISED BY THE ASSESSEE ARE DISMISSED. 2 3 . THE NEXT GROUND OF APPEAL WHICH NEEDS ADJUDICATION IS GROUND OF APPEAL NO.9 WHICH IS AGAINST THE DISALLOWANCE OF STOCK WRITTEN OFF IN DOMESTIC TARIFF AREA UNIT AMOUNTING TO RS.13,87,520 / - . ITA NO. 1 3 3 /PN/20 1 1 VISHAY COMPONENTS INDIA PVT. LTD. 23 2 4 . THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE IN THIS REGARD POINTED OUT THAT THE ASSESSEE WAS ENGAGED IN THE MANUFACTURE OF SEMI - CONDUCTORS WHICH WERE HIGHLY SELECTIVE AND DELICATE PART USED IN ELECTRONICS INDUSTRIES. HE FURTHER STATED THAT THE ASSESSEE HAD MADE PROVISION OF OBSOLESCENCE TO THE TUNE OF RS. 35,08,064/ - AND THE SAID PROVISION WAS DISALLOWED IN THE COMPUTATION OF INCOME AND WRITE OFF OF THE SAID CLAIM TO THE EXTENT OF RS.13,87,520/ - WAS MADE WHICH WAS 0.12% OF THE TOTAL SALE S. HE FURTHER POINTED OUT THAT SIMILAR CLAIM OF WRITE OFF WAS BEING MADE F ROM YEAR TO YEAR. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT IN ASSESSMENT YEAR 2005 - 06, THE CIT(A) HIMSELF HAD ALLOWED THE CLAIM OF ASSESSEE AND NO AP PEAL HAS BEEN FILED BY THE REVENUE. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE STRESSED THAT THE CLAIM WAS AGAINST ACTUAL WRITE OFF. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE FURTHER POINTED OUT THAT THE DIRECTIONS OF DRP WERE PR IOR TO THE ORDER PASSED BY CIT(A) RELATING TO ASSESSMENT YEAR 2005 - 06. ANOTHER CONTENTION RAISED BY THE ASSESSEE WAS IN RESPECT OF FACTUAL ASPECT AND WRITE OFF AMOUNT ON ACCOUNT OF EXCISE DUTY WHICH AS PER THE ASSESSEE WAS CHECKED BY THE EXCISE DEPARTMENT AND THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE REFERRED TO THE ADDITIONAL EVIDENCE FILED ON 29.02.2012 IN THIS REGARD. 2 5 . THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE ON THE OTHER HAND, PLACED RELIANCE ON THE ORDERS OF ASSESSING OFFICER/DRP IN THIS REGARD. 2 6 . WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE RAISED VIDE GROUND OF APPEAL NO.9 IS AGAINST WRITE OFF OF RS.13,87,520/ - . THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE HAS POINTED OUT THAT A S AGAINST THE PROVISION OF RS. 35,08,064/ - , ACTUAL WRITE OFF WAS RS.13,87,520/ - AND ITA NO. 1 3 3 /PN/20 1 1 VISHAY COMPONENTS INDIA PVT. LTD. 24 THE SAME WAS WRITTEN OFF IN ITS BOOKS OF ACCOUNT. IN ORDER TO ESTABLISH ITS CLAIM OF WRITE OFF, THE ASSESSEE HAS POINTED OUT THAT SOME PART OF IT RELATES TO THE EXCISE DUTY . I N THIS REGARD, THE ASSESSEE HAS FURNISHED ADDITIONAL EVIDENCE ALONG WITH LETTER DATED 29.12.2012 , WHEREIN THE ASSESSEE HAS SUBMITTED THE EVIDENCE IN RELATION TO STOCK WRITTEN OFF IN THE CASE OF MATERIALS WITH EXCISE REGISTERS AND IN THE CASE OF FINISHE D GOODS TRADING WITH QUARTERLY EXCISE RETURN S . THE ASSESSEE CLAIMED THAT IT HAD WRITTEN OFF ITS STOCK, HOWEVER, EVIDENCE IN THIS REGARD HAS BEEN FILED BY WAY OF ADDITIONAL EVIDENCE BEFORE US. WE ARE OF THE VIEW THAT THE SAID EVIDENCE GOING TO THE ROOT OF THE ISSUE, NEEDS TO BE ADMITTED AND AFTER ADMITTING THE SAME, WE DEEM IT FIT TO RESTORE THIS ISSUE BACK TO THE FILE OF ASSESSING OFFICER, WHO SHALL VERIFY THE CLAIM OF ASSESSEE IN THIS REGARD AND DECIDE THE ISSUE IN ACCORDANCE WITH LAW. THE ASSESSEE SHAL L FURNISH THE AFORESAID EVIDENCE BEFORE THE ASSESSING OFFICER, WHO SHALL AFFORD A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE WHILE DECIDING THE ISSUE. SINCE WE ARE SETTING ASIDE THIS ISSUE TO THE ASSESSING OFFICER, WE ALSO DIRECT HIM TO DECIDE THE BALANCE WRITE OFF OF STOCK. THE GROUND OF APPEAL NO.9 IS THUS, ALLOWED FOR STATISTICAL PURPOSES. 2 7 . NOW, COMING TO THE ISSUE RAISED VIDE GROUNDS OF APPEAL NO.12 AND 13 WHICH ARE AGAINST THE COMPUTATION OF DEDUCTION UNDER SECTION 10B OF THE ACT. 2 8 . T HE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE ISSUE RAISED VIDE PRESENT GROUNDS OF APPEAL IS SQUARELY COVERED BY THE ORDER OF TRIBUNAL IN ASSESSEES OWN CASE RELATING TO ASSESSMENT YEAR 2005 - 06 IN ITA NO.551/PN/2014 ALONG WITH ITA NO.736/PN/2014, ORDER DATED 08.10.2015. ITA NO. 1 3 3 /PN/20 1 1 VISHAY COMPONENTS INDIA PVT. LTD. 25 2 9 . WE FIND THAT SIMILAR ISSUE OF COMPUTATION OF DEDUCTION UNDER SECTION 10B OF THE ACT VIS - - VIS BROUGHT FORWARD UNABSORBED DEPRECIATION AROSE BEFORE THE TRIBUNAL IN ASSESSMENT YEAR 2005 - 06 AND THE TRIBUNAL V IDE PARAS 27 TO 29 OBSERVED AS UNDER: - 27. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE ARISING VIDE GROUND OF APPEAL NO.3 IS IN RELATION TO THE COMPUTATION OF DEDUCTION UNDER SECTION 10B OF THE ACT AFTER THE AMENDMENT TO SECTION W.E.F. 01.04.2001. THE PERSONS INVOKING THE SAID PROVISIONS ARE ENTITLED TO A DEDUCTION UNDER THE ACT, AS COMPARED TO THE PRE - AMENDED PROVISIONS OF THE SECTION, UNDER WHICH THE INCOME COMPRISING UNDER THE SAID SECTION WAS EXEMPT FROM THE TOTAL INCOME. T HE ISSUE ARISING BEFORE US IS WHETHER WHILE COMPUTING DEDUCTION UNDER SECTION 10B OF THE ACT, IN CASES WHERE THE ASSESSEE HAS UNABSORBED LOSSES OR DEPRECIATION, BROUGHT FORWARD FROM EARLIER YEARS, THEN WHETHER THE SAID UNABSORBED BUSINESS LOSSES / DEPRECIA TION ARE TO BE ADJUSTED FROM THE GROSS TOTAL INCOME BEFORE ALLOWING THE DEDUCTION UNDER SECTION 10B OF THE ACT OR THE SAID LOSSES OR THE DEDUCTION UNDER SECTION 10B OF THE ACT IS TO BE ALLOWED IN THE HANDS OF THE ASSESSEE WITHOUT CONSIDERING THE BROUGHT FO RWARD UNABSORBED LOSSES / DEPRECIATION, WHICH CAN BE SET OFF AGAINST THE OTHER INCOME OF ASSESSEE. BOTH THE AUTHORITIES BELOW HAD DENIED THE CLAIM TO THE ASSESSEE, IN VIEW OF THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT IN HIMASINGKA SEIDE LTD. VS. CI T (SUPRA). THE PERUSAL OF THE JUDGMENT OF HONBLE KARNATAKA HIGH COURT IN THE SAID CASE REFLECTS THAT THE YEARS UNDER APPEAL RELATED TO ASSESSMENT YEARS 1988 - 89 TO 1990 - 91 I.E. THE YEARS WHERE THE BENEFIT UNDER SECTION 10B OF THE ACT WAS FOR BEING EXEMPT FROM TOTAL INCOME. HOWEVER, THE YEAR UNDER APPEAL BEFORE US IS ASSESSMENT YEAR 2005 - 06, WHEREIN THE SAID SECTION HAS BEEN AMENDED AND THE DEDUCTION NOW IS WHEREIN THE SAID SECTION HAS BEEN AMENDED AND THE DEDUCTION NOW IS ALLOWABLE TO THE ASSESSEE AS AGAINST THE SAID INCOME BEING EXEMPT IN THE EARLIER YEARS. THE ISSUE I S SETTLED BY THE HONBLE BOMBAY HIGH COURT IN CIT VS. BLACK & VEATCH CONSULTING PVT. LTD. (2012) 348 ITR 72 (BOM), WHEREIN IT WAS HELD AS UNDER: - THE DEDUCTION UNDER S. 10A, HAS TO BE GIVEN EFFECT TO AT THE STAGE OF COMPUTING THE PROFITS AND GAINS OF BUS INESS. THIS IS ANTERIOR TO THE APPLICATION OF THE PROVISIONS OF S.72 WHICH DEALS WITH THE CARRY FORWARD AND SET OFF OF BUSINESS LOSSES. A DISTINCTION HAS BEEN MADE BY THE LEGISLATURE WHILE INCORPORATING THE PROVISIONS OF CHAPTER VI - A. SECTION 80A(1) STI PULATES THAT IN COMPUTING THE TOTAL INCOME OF AN ASSESSEE, THERE SHALL BE ALLOWED FROM HIS GROSS TOTAL INCOME, IN ACCORDANCE WITH AND SUBJECT TO THE PROVISIONS OF THE CHAPTER, THE DEDUCTIONS SPECIFIED IN SS.80C TO 80U. S.80B(5) DEFINES FOR THE PURPOSE OF C HAPTER VI - A GROSS TOTAL INCOME TO MEAN THE TOTAL INCOME COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF THE ACT, BEFORE MAKING ANY DEDUCTION UNDER THE CHAPTER. WHAT THE REVENUE IN ESSENCE SEEKS TO ATTAIN IS TO TELESCOPE THE PROVISIONS OF CHAPTER VI - A IN T HE CONTENT OF THE DEDUCTION WHICH IS ALLOWABLE UNDER S.10A, WHICH WOULD NOT BE PERMISSIBLE UNLESS A SPECIFIC STATUTORY PROVISION TO THAT EFFECT WERE TO BE MADE. IN THE ABSENCE THEREOF, SUCH AN APPROACH CANNOT BE ACCEPTED. THUS ITAT WAS CORRECT IN HOLDING THAT THE BROUGHT FORWARD UNABSORBED DEPRECIATION AND LOSSES OF THE UNIT THE INCOME WHICH IS NOT ELIGIBLE FOR DEDUCTION UNDER S.10A OF THE ACT CANNOT BE SET OFF AGAINST THE CURRENT PROFIT OF THE ELIGIBLE UNIT FOR COMPUTING THE DEDUCTION UNDER S.10A OF THE IT ACT. 28. THE SAID PROPOSITION OF LAW HAS FURTHER BEEN APPLIED BY THE HONBLE BOMBAY HIGH COURT IN CIT VS. M/S. GANESH POLYCHEM LTD. IN INCOME TAX ITA NO. 1 3 3 /PN/20 1 1 VISHAY COMPONENTS INDIA PVT. LTD. 26 APPEAL NO.2083 OF 2012, ORDER DATED 25.02.2013 AND IN CIT VS. SCHMETZ INDIA PVT. LTD. (2012) 79 DTR (BOM) 356 AND ALSO BY THE HONBLE HIGH COURT OF GUJARAT IN CIT VS. ACE SOFTWARE EXPORTS LTD. IN TAX APPEAL NO.687 OF 2012, ORDER DATED 18.02.2013. THE MUMBAI BENCH OF TRIBUNAL HAS ALSO APPLIED THE SAID PROPOSITION IN VARIOUS CASES. 29. THE LEARNED DEPARTMENTA L REPRESENTATIVE FOR THE REVENUE ON THE OTHER HAND, PLACED RELIANCE ON THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT IN SYNCO INDUSTRIES LTD. VS. AO, (2008) 299 ITR 444 (SC), WHEREIN THE ISSUE WAS WHETHER WHILE COMPUTING THE QUANTUM OF DEDUCTION UNDER S ECTION 80I(6) OF THE ACT, THE ASSESSING OFFICER HAS TO TREAT THE PROFITS DERIVED FROM AN INDUSTRIAL UNDERTAKING AS ONLY SOURCE OF INCOME IN ORDER TO ARRIVE AT DEDUCTION UNDER CHAPTER VI - A. THE HONBLE SUPREME COURT HELD THAT THE GROSS TOTAL INCOME UNDER S ECTION 80B(5) OF THE ACT, WHICH IS ALSO REFERRED TO IN SECTION 80I(1) OF THE ACT, WAS REQUIRED TO BE COMPUTED IN MANNER PROVIDED UNDER THE ACT, WHICH PRE - SUPPOSES THAT GROSS TOTAL INCOME SHALL BE ARRIVED AT AFTER ADJUSTING LOSSES OF OTHER DIVISION AGAINST PROFITS DERIVED FROM AN INDUSTRIAL UNDERTAKING. THE ISSUE BEFORE THE HONBLE SUPREME COURT IS AT VARIANCE WITH THE ISSUE BEFORE US AND THE SAID RATIO IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. THE ISSUE IN THE PRESENT APPEAL IS SQUARELY COVERED BY THE RATIO LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN CIT VS. BLACK & VEATCH CONSULTING PVT. LTD. (SUPRA), WHEREIN DEDUCTION UNDER SECTION 10A OF THE ACT WAS TO BE COMPUTED IN THE HANDS OF ASSESSEE AND THE SAME WAS WHETHER THE BROUGHT FORWARD LOSSES H AD TO BE ADJUSTED BEFORE COMPUTING DEDUCTION UNDER SECTION 10A OF THE ACT. IT MAY BE POINTED OUT THAT THE PROVISIONS OF SECTION 10A AND 10B OF THE ACT ARE AT PARAMETRIA. FOLLOWING THE RATIO LAID DOWN BY THE HONBLE BOMBAY HIGH COURT, WE HOLD THAT THE DED UCTION UNDER SECTION 10B OF THE ACT IS TO BE COMPUTED IN THE HANDS OF THE ASSESSEE BEFORE ADJUSTING BROUGHT FORWARD UNABSORBED LOSSES/DEPRECIATION. THE GROUND OF APPEAL NO.3 RAISED BY THE ASSESSEE IS THUS, ALLOWED. 30 . FOLLOWING THE SAME PARITY OF REASO NING AND APPLYING THE RATIO LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN CIT VS. BLACK & VEATCH CONSULTING PVT. LTD. (2012) 348 ITR 72 (BOM) , WE HOLD THAT THE DEDUCTION UNDER SECTION 10B OF THE ACT IS TO BE COMPUTED BEFORE ADJUSTING BROUGHT FORWARD UNABSO RBED LOSSES / DEPRECIATION . THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE HAD NOT RAISED ANY OTHER ISSUE EXCEPT POINTING OUT THAT THE ISSUES STANDS COVERED BY THE ORDER OF TRIBUNAL. IN VIEW THEREOF, WE DIRECT THE ASSESSING OFFICER TO RE - COMPUTE THE DEDUCTION UNDER SECTION 10B OF THE ACT WITHOUT SETTING OF BROUGHT FORWARD AND UNABSORBED DEPRECIATION OF EARLIER YEARS. THUS, THE GROUND OF APPEAL NO.12 IS DISMISSED AND THE GROUND OF APPEAL NO.13 IS ALLOWED. 31 . THE GROUND OF APPEAL NO.14 IS AGAINST INITIATION OF PENALTY PROCEEDINGS IS PREMATURE AND HENCE, THE SAME IS DISMISSED. ITA NO. 1 3 3 /PN/20 1 1 VISHAY COMPONENTS INDIA PVT. LTD. 27 3 2 . THE ISSUE IN GROUND OF APPEAL NO.15 I.E. LEVY OF INTEREST UNDER SECTION 234B OF THE ACT IS CONSEQUENTIAL AND HENCE, THE SAME IS ALSO DISMISSED. 3 3 . IT MAY BE REITERAT ED THAT THE BALANCE GROUNDS OF APPEAL WE RE DECIDED BY THE TRIBUNAL VIDE ORDER DATED 25.05.2012 AND THE SAME STAND . 3 4 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED ON THIS 16 TH DAY OF MA Y , 201 6 . SD/ - SD/ - (PRADIP KUMAR KEDIA) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 16 TH MA Y, 201 6 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT ; 2. THE RESPONDENT; 3. THE DIT (INTL. TAXATION), PUNE ; 4. THE DRP, PUNE ; 5. THE DR A , ITAT, PUNE; 6. GUARD FILE . / BY ORDER , // T RUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE