Deputy Commissioner of Income-tax, V. Fresenius Kabi India Pvt. Ltd., Pune

ITA 1348/PUN/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7430 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 11 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 18-09-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 12-10-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: PRIYA KOTKAR
• Keywords: Depreciation; Transfer pricing; Opportunity of being heard; Principle of natural justice; International transaction; Initiation of penalty proceedings; Wholly owned subsidiary; Unabsorbed depreciation
• Section: 10; 2; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE . , , , BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO S. 1309 & 1308 /P U N/201 5 / ASSESSMENT YEAR S : 20 09 - 10 & 2010 - 11 FRESENIUS KABI INDIA PRIVATE LIMITED, 5 TH FLOOR, A - WING, ASHOKA PLAZA, PUNE NAGAR ROAD, S. NO. 32/2, VADGAON SHERI, VIMAN N AGAR, PUNE 411014 PAN : AAACF2614E ....... / APPELLANT / V/S. DY. COMMISSIONER OF INCOME TAX, CIRCLE 1 (2), PUNE / RESPONDENT . / ITA NO S. 1485 & 1348/PUN/2015 / ASSESSMENT YEAR S : 2009 - 10 & 2010 - 11 DY. COMMISSIONER OF INCOME TAX, CIRCLE 1(2), PUNE ....... / APPELLANT / V/S. FRESENIUS KABI INDIA PRIVATE LIMITED, 5 TH FLOOR, A - WING, ASHOKA PLAZA, PUNE NAGAR ROAD, S. NO. 32/2, VADGAON SHERI, VIMAN NAGAR, PUNE 411014 PAN : AAACF2614E / RESPONDENT ASSESSEE BY : S HRI KETAN VED & MS. PRIYA KOTKAR REVENUE BY : SHRI RAJEEV KUMAR / DATE OF HEARING : 18 - 0 9 - 2017 / DATE OF PRONOUNCEMENT : 22 - 0 9 - 2017 2 ITA NO S. 1309, 1308, 1485 & 1348/PUN/2015, A.YS. 2009 - 10 & 2010 - 11 / ORDER PER VIKAS AWASTHY, JM : TH ESE FOUR APPEALS FOR THE ASSESSMENT YEARS 2009 - 10 AND 2010 - 11 ARE FILED BY THE ASSESSEE AND THE REVENUE. THE ASSESSEE IN ITA NO. 1309/PUN/2015 HAS ASSAILED THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) - 13, PUNE DATED 25 - 08 - 2015 FOR THE ASSESSMENT YEAR 2009 - 10. THE REVENUE HAS FILED CROSS APPEAL AGAINST THE SAID ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) IN ITA NO. 1485/PUN/2015. THE ASSESSEE IN ITA NO. 1308/PUN/2015 HAS IMPUGNED THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) - 13, PUNE DATED 29 - 07 - 2015 FOR THE ASSESSMENT YEAR 2010 - 11. THE REVENUE HAS FILED CROSS APPEAL AGAIN ST THE SAID ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) IN ITA NO. 1348/PUN/2015. SINCE, THE ISSUES RAISED IN THESE CROSS APPEALS ARE COMMON, THESE APPEALS ARE TAKEN UP TOGETHER FOR ADJUDICATION AND ARE DECIDED BY THIS COMMON ORDER. 2. THE BRIEF FACTS OF THE CASE AS EMANATING FROM RECORDS ARE: THE ASSESSEE IS A WHOLLY OWNED SUBSIDIARY OF FRESENIUS KABI AG, GERMANY. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF MANUFACTURING AND TRADING OF WIDE RANGE OF LIFESAVING INTRAVENOUS (IV) FLUIDS. DURING THE ASSE SSMENT YEARS UNDER APPEAL , THE ASSESSEE HAD ENTERED INTO INTERNATIONAL TRANSACTIONS WITH ITS ASSOCIATED ENTERPRISES (AE). THE ACTIVITIES OF THE ASSESSEE ARE DIVIDED IN TWO SEGMENTS : I . MANUFACTURING SEGMENT AND II . TRADING/DISTRIBUTION SEGMENT. 3 ITA NO S. 1309, 1308, 1485 & 1348/PUN/2015, A.YS. 2009 - 10 & 2010 - 11 2.1 THE ASSESSEE TO BENCHMARK ITS INTERNATIONAL TRANSACTIONS IN TRADING SEGMENT ADOPTED RESALE PRICE METHOD (RPM) AS THE MOST APPROPRIATE METHOD. THE TRANSFER PRICING OFFICER (TPO) REJECTED THE SAME AND APPLIED TRANSACTIONAL NET MARGIN METHOD (TNMM). THE TPO FUR THER SELECTED COMPARABLES ON THE BASIS OF COMPUTATION OF PROFIT LEVEL INDICATOR (PLI) UNDER TNMM. UNDER MANUFACTURING SEGMENT, THE ASSESSEE FOR BENCHMARKING ITS INTERNATIONAL TRANSACTION HAD APPLIED TRANSACTION BY TRANSACTION APPROACH. THE TPO REJECTED T HE SAME AND ADOPTED AGGREGATION APPROACH. THE ASSESSEE CARRIED THE MATTER IN FIRST APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). THE COMMISSIONER OF INCOME TAX (APPEALS) UPHELD THE FINDINGS OF ASSESSING OFFICER AS REGARD THE ADOPTION OF TNMM AS THE MOST APPROPRIATE METHOD. HOWEVER, THE COMMISSIONER OF INCOME TAX (APPEALS) EXCLUDED SOME OF THE COMPARABLES FROM THE FINAL LIST OF COMPARABLES SELECTED BY TPO UNDER TRADING SEGMENT. AGAINST THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) BOTH T HE ASSESSEE AND THE REVENUE ARE IN APPEAL BEFORE THE TRIBUNAL. 3. THE ISSUES RAISED BY THE ASSESSEE IN APPEALS FOR BOTH THE ASSESSMENT YEARS ARE SIMILAR. FOR THE SAKE OF CONVENIENCE WE WILL FIRST ADJUDICATE THE APPEAL S OF THE ASSESSEE AND THE REVENUE F OR ASSESSMENT YEAR 2009 - 10. THE GROUNDS RAISED BY THE ASSESSEE IN ASSESSMENT YEAR 2009 - 10 ARE AS UNDER : 1. GENERAL THE LEARNED CIT (A) ERRED IN LAW AND ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE IN CONFIRMING THE TRANSFER PRICING ADJUSTMENT AMOUNTI NG TO RS. 13,33,77,000 TO THE VALUE OF INTERNATIONAL TRANSACTIONS ENTERED INTO BY THE APPELLANT WITH ITS ASSOCIATED ENTERPRISES IN RESPECT OF INTERNATIONAL TRANSACTIONS RELATING TO MANUFACTURING AND TRADING ACTIVITIES. 2. BENCHMARKING OF TRANSACTION BY TRANSACTION APPROACH REJECTED - MANUFACTURING ACTIVITY 4 ITA NO S. 1309, 1308, 1485 & 1348/PUN/2015, A.YS. 2009 - 10 & 2010 - 11 2.1 THE LEARNED CIT (A) ERRED IN LAW AND ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE IN NOT ACCEPTING THE BENCHMARKING OF MANUFACTURING ACTIVITY DONE BY THE APPELLANT USING 'TRANSACTION BY TRANSACT ION' APPROACH AND HAS INSTEAD ADOPTED THE 'AGGREGATION' APPROACH. 2.2 THE LEARNED CIT(A) ERRED IN LAW AND ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE IN REJECTING THE SEGMENTAL ACCOUNTS OF THE APPELLANT STATING THAT THE SEGMENTAL ACCOUNTS ARE NOT IN ACCORDANCE WITH THE ACCOUNTING STANDARD 17 AND ARE PREPARED ONLY FOR THE T RANSFER PRICING PURPOSE. 2.3 THE LEARNED CIT(A) ERRED IN LAW AND ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE IN CONFIRMING THE REJECTION OF FOLLOWING COMPARABLE COMPANIES SELECTED BY THE APPELLANT IN THE TRANSFER PRICING STUDY REPORT ON THE QUANTITATIV E FILTERS FOR THE ASSESSMENT YEAR 2009 - 10 DENIS CHEM LAB LIMITED HINDUSTAN ANTIBIOTICS LIMITED SHREE KRISHNA KESHAV LABORATORIES LIMITED 2.4 THE LEARNED CIT(A) ERRED IN LAW AND ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE IN CONFIRMING THE REJECTION OF FOLLOWING COMPARABLE COMPANIES SELECTED BY THE APPELLANT IN THE TRANSFER PRICING STUDY REPORT AFFIRMING THAT THESE ARE FUNCTIONALLY DIFFERENT. ANGLO - FRENCH DRUGS & INDUSTRIES LIMITED PHAARMASIA LIMITED 3 . REJECTION OF RESALE PRICE METHOD (RPM) AND SELECTING OF TRANSACTIONAL NET MARGIN METHOD (TNMM) AS THE MOST APPROPRIATE METHOD FOR TRADING ACTIVITY 3.1 THE LEARNED CIT (A) PLACING RELIANCE ON HIS OWN DECISION IN A.Y 2010 - 11 ERRED IN LAW AND ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE IN NOT ACCEPTING THE BENCHMARKING OF TRADING ACTIVITY DONE BY THE APPELLANT USING 'RESALE PRICE METHOD' AND USING 'TRANSACTIONAL NET MARGIN METHOD' AS THE MOST APPROPRIATE METHOD BASED ON T HE FOLLOWING FINDINGS: 3.1.1 CHARACTERIZATION OF THE APPELLANT - NOT A LIMITED RISK DISTRIBUTOR THE LEARNED CIT (A) ERRED IN LAW AND ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE IN NOT ACCEPTING THAT THE APPELLANT'S CHARACTERIZATION OF THE LIMITED RISK DISTRIBUTOR ALLEGING THAT IT ADDS SUBSTANTIAL VALUE TO THE FINISHED GOODS IMPORTED FROM THE ASSOCIATED ENTERPRISES. 3 . 1 . 2 FUNCTIONAL COMPARABILITY V/S PRODUCT COMPARABILITY THE LEARNED CIT (A) ERRED IN LAW AND ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE I N CONCLUDING THAT PRODUCT COMPARABILITY IS IMPORTANT UNDER RPM AS THE MOST APPROPRIATE METHOD IGNORING FUNCTIONAL COMPARABILITY WHICH IS THE ONLY REQUIREMENT. 5 ITA NO S. 1309, 1308, 1485 & 1348/PUN/2015, A.YS. 2009 - 10 & 2010 - 11 3.1.3 SUBSTANTIAL SELLING AND MARKETING EXPENDITURE INCURRED THE LEARNED CIT (A) ERRED IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE IN CONCLUDING THAT THE APPELLANT HAS INCURRED SUBSTANTIAL SELLING AND MARKETING EXPENDITURE. 3.1.4 APPELLANT DEALS IN LIFESAVING DRUGS THE LEARNED CIT (A) ERRED IN LAW AND ON F ACTS AND CIRCUMSTANCES OF THE CASE IN CONCLUDING THAT THE APPELLANT DEALS IN LIFE SAVING DRUGS WHICH IS FAR FROM THE FACTS OF THE CASE. 3.1.5 RPM IS CONSISTENTLY USED AND ACCEPTED BY THE TRANSFER PRICING AUTHORITIES THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE IN REJECTING RPM AS MOST APPROPRIATE METHOD WHICH WAS CONSISTENTLY USED BY THE APPELLANT AND ACCEPTED BY THE TRANSFER PRICING OFFICERS UNTIL A.Y 2007 - 08 TO BENCHMARK THE TRADING ACTIVITY. 4 . THE APPELLANT REQUEST TO GRA NT THE IMPORT DUTY ADJUSTMENT TO THE DISTRIBUTION ACTIVITY OF THE APPELLANT AS IT INCURRED THE HIGHER COSTS ON ACCOUNT OF IMPORTS THAN IN THE CASE OF COMPARABLE COMPANIES. 5 . THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE IN MARKI NG AN ADJUSTMENT TO THE ENTIRE SALES VALUE OF TRADING SEGMENT I.E . RS.63,18,01,962/ - WITHOUT RESTRICTING TO THE INTERNATIONAL TRANSACTION OF THE IMPORT OF FINISHED GOODS FOR RESALE AMOUNTING TO RS. 41,83,10,124. 6 . THE HONORABLE CIT(A) ERRED IN LAW IN NOT ALLOWING VARIATION TO THE EXTENT OF (+/ - ) 5%, WHILE DETERMINING THE ARMS LENGTH PRICE OF THE INTERNATIONAL TRANSACTIONS. 7 . THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS OF THE CASE IN NOT ADJUDICATING THE INITIATION OF THE PENALTY PROCEEDINGS UNDER SECTION 271(1) (C) OF THE ACT. 8 . EACH ONE OF THE ABOVE GROUNDS OF APPEAL IS WITHOUT PREJUDICE TO THE OTHER. 9 . THE APPELLANT RESERVES THE RIGHT TO AMEND, ALTER OR ADD TO THE GROUNDS OF APPEAL. THE GROUNDS RAISED BY THE REVENUE IN ASSESSMENT YEAR 2009 - 10 ARE AS UND ER : 1. WHETHER CIT(A) IN THE FACTS AND CIRCUMSTANCES ERRED BY DIRECTING AO TO EXCLUDE NOVARTIS INDIA LTD. AS COMPARABLE COMPANY BY CONCLUDING THAT THE MANUFACTURING IS SIGNIFICANT ACTIVITY OF THE COMPANY. THE CIT(A) IGNORED THE FACT THAT THE RAW MATERIA L PURCHASED FOR MANUFACTURING IS IN SIGNIFICANT AND HENCE DISTRIBUTION IS MAIN ACTIVITY OF COMPANY. 6 ITA NO S. 1309, 1308, 1485 & 1348/PUN/2015, A.YS. 2009 - 10 & 2010 - 11 2. FOR THESE AND SUCH OTHER GROUNDS AS MAY BE URGED AT THE TIME OF HEARING THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX ( APPEALS) MAY BE VACATED AND THA T OF THE ASSESSING OFFICER BE RESTORED. 3. THE APPELLANT CRAVES TO ADD, AMEND, ALTER OR DELETE ANY OF THE GROUNDS OF APPEAL DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE HONBLE TRIBUNAL. 4. SHRI KETAN VED APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT GROUND NOS. 1, 8 AND 9 RAISED IN THE APPEAL BY THE ASSESSEE ARE GENERAL IN NATURE. THE GROUND NO. 2 RELATES TO BENCHMARKING OF TRANSACTION UNDER MANUFACTURING SEGMENT . THE ASSESSEE HAD APPLIED TNMM - TRANSACTION BY TRANSACTION APPROACH . W HEREAS , THE TPO ADOPTED TNMM AGGREGATION APPROACH TO BENCHMARK THE TRANSACTIONS. THE LD. AR POINTED THAT S IMILAR OBJECTION WAS RAISED BY THE DEPARTMENT IN ASSESSMENT YEAR 2008 - 09. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE TRIBUNAL IN ITA N O. 235/PUN/2013. THE TRIBUNAL VIDE ORDER DATED 16 - 06 - 2017 SET ASIDE THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) AND RESTORE D THE MATTER BACK TO THE FILE OF ASSESSING OFFICER /TPO . THE LD. AR FURTHER SUBMITTED THAT IN TRADING SEGMENT THE ASSESSING OFFICER HAD ADOPTED RPM AS THE MOST APPROPRIATE METHOD TO BENCHMARK THE INTERNATIONAL TRANSACTIONS WITH ITS AE. THE TPO REJECTING THE SAME AND APPLIED TNMM AND SELECTED THE COMPARABLES ACCORDINGLY. THE COMMISSIONER OF INCOME TAX (APPEALS) UPHELD THE FIN DINGS OF ASSESSING OFFICER. IN IMMEDIATELY PRECEDING ASSESSMENT YEAR I.E. ASSESSMENT YEAR 2008 - 09 THE TPO HAD ADOPTED TNMM AFTER REJECTING RPM APPLIED BY ASSESSEE. THE TRIBUNAL AFTER SET TING ASIDE THE IMPUGNED ORDER UPHELD RPM APPLIED BY THE ASSESSEE AS THE MOST APPROPRIATE METHOD. THE GROUND NOS. 4 AND 5 RAISED IN THE APPEAL BY THE ASSESSEE ARE CONSEQUENTIAL TO THE ISSUE RAISED IN GROUND NO. 3. IN RESPECT OF GROUND NO. 6 RELATING TO ALLOWING VARIATION TO THE EXTENT OF 5% WHILE 7 ITA NO S. 1309, 1308, 1485 & 1348/PUN/2015, A.YS. 2009 - 10 & 2010 - 11 DETERMINING THE ARMS L ENGTH PRICE (ALP) OF THE INTERNATIONAL TRANSACTIONS , THE LD. AR PRAYED THAT HE IS NO T P RESSING THE GROUND BEING PREMATURE. SIMILAR PRAYER WAS MADE BY THE LD. AR IN RESPECT OF GROUND NO. 7 IN RESPECT OF INITIATION OF PENALTY U/S. 271(1)(C) OF THE ACT. 5. SHRI RAJEEV KUMAR REPRESENTING THE DEPARTMENT VEHEMENTLY DEFENDED THE IMPUGNED ORDER. HOWEVER, THE LD. DR FAIRLY ADMITTED THAT THE ISSUE RAISED IN GROUND NOS. 2 AND 3 OF THE APPEAL BY THE REVENUE HAVE BEEN ADJUDICATED BY THE CO - ORDINATE BENCH OF THE TR IBUNAL IN ASSESSEES OWN CASE IN ASSESSMENT YEAR 2008 - 09. THE LD. DR SUBMITTED THAT THE REVENUE IN APPEAL HAS ASSAILED THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) IN EXCLUDING NOVARTIS INDIA LTD. FROM THE FINAL LIST OF COMPARABLES UNDER MANUFACTU RING SEGMENT. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN NOT CONSIDERING THE FACT THAT THE RAW MATERIAL PURCHASED FOR MANUFACTURING IS INSIGNIFICANT. DISTRIBUTION IS THE MAIN ACTIVITY OF THE SAID COMPANY. THUS, THE COMMISSIONER OF INCOME TAX (APPEALS) HAS WRONGLY EXCLUDED THE SAID COMPANY FROM THE FINAL LIST OF COMPARABLES. 6. CONTROVERTING THE SUBMISSIONS OF LD. DR, THE LD. AR SUBMITTED THAT NOVARTIS INDIA LTD. WAS SELECTED BY TPO ON THE BASIS OF AGGREGATION METHOD . IF THE TRIBUNAL HOLDS THAT THE AGGREGATION APPROACH APPLIED BY TPO IS INCORRECT , THEN THE SAID COMPANY CANNOT BE CONSIDERED AS COMPARABLE. 7. W E HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESENTATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT GROUND NO. 2 RAISED BY THE ASSESSEE IN APPEAL IS IDENTICAL TO ISSUE RAISED AS 8 ITA NO S. 1309, 1308, 1485 & 1348/PUN/2015, A.YS. 2009 - 10 & 2010 - 11 GROUND NO. 2 BY THE ASSESSEE IN ITS APPEAL FOR ASSESSMENT YEAR 2008 - 09 BEFORE THE TRIBUNAL. THE TRIBUNAL WHILE ADJUDICATING THE SAID ISSUE HAS HELD AS UNDER : 12 . ON HEARING BOTH THE PARTIES ON THESE ISSUES RAISED BY THE TPO, ON PERUSAL OF THE ORDER OF THE DRP DATED 12 - 01 - 2012 IN GENERAL AND PARA 3.4 IN PARTICULAR, WHICH WAS ALREADY EXTRACTED ABOVE, WE ARE OF THE OPINION THAT THE DRP ORDER DOES NOT PROVIDE REASONS HOW THE REQUIREMENT FOR THE ASSESSEE TO FURNISH AUDITED SEGMENTAL/SUB - SEGMENTAL ACCOUNTS IN THE TP STUDY IS NEEDED. WE UNDERSTAND THE REQUIREMENT OF AUDITING THE ACCOUNTS OF THE ASSESSEE AND IT HAS THE STRENGTH OF THE PROVISIONS OF SECTION 44AB OF THE ACT . BUT WHEN IT COMES TO THE TP STUDY MATTERS, THERE IS RESPONSIBILITY CAST ON THE ASSESSEE TO CONDUCT TP STUDY AND THERE IS A ROLE/PARTICIPATION OF THE ASSESSEE. AS IN THE MATTER DRP SHOULD HAVE GIVEN REASONS AS TO HOW THE TP STUDY ALSO DEMANDS THE AUDITING OF THE SEGMENTAL ACCOUNTS OR SUB - SEGMENTAL ACCOUNTS. AS SUCH, IT IS NOT CLEAR AS TO WHY THE CONTENTS OF PAGE 492 OF THE PAPER BOOK IS NOT AUDITED BEFORE FILING THE SAME BEFORE THE LOWER AUTHORITIES OR THE TRIBUNAL. ASSESSEE IS UNDER OBLIGATION TO DISCHARG E THE ONUS AS TO HOW SAID ARTIFICIAL ALLOCATION OF EXPENSES DOES NOT CONSTITUTE A SELF - SERVING EXERCISE RATHER THAN THE RELIABLE/CREDIBLE TP STUDY NEEDED FOR BENCHMARKING OF THE INTERNATIONAL TRANSACTIONS UNDER CONSIDERATION. IN THE ABSENCE OF THE SAME, TH E ROLE OF THE AO OR THE TPO IN MAKING ADJUSTMENTS IS SUSTAINABLE IN LAW. HOWEVER, HOLDING THIS VIEW AT THIS POINT OF TIME CONSTITUTES PREMATURE. IT IS ALSO NOTICED THAT THE DECISIONS FURNISHED BY THE ASSESSEES COUNSEL REGARDING THE NON - REQUIREMENT OF FURN ISHING OF THE AUDITED ACCOUNTS OF THE SEGMENTAL ACCOUNTS AND SUBSEGMENTAL ACCOUNTS, WERE IGNORED BY THE TPO/DRP WITHOUT GIVING REASONS. REGARDING OTHER ASPECTS RELATING TO ALLOCATION OF INTERLACED EXPENDITURE, SUCH AS EMPLOYEES COST, SELLING AND MARKETING EXPENSES, GENERAL ADMIN EXPENSES ETC., WE ARE OF THE OPINION THAT BASIS FOR ALLOCATING THE SAID EXPENSES AMONG THE 4 SUB - SEGMENTS DOES NOT APPEAR TO BE THE ACTUAL EXPENDITURE ALTHOUGH THEY WERE ARGUED BY THE LD. COUNSEL FOR THE ASSESSEE AS ACTUALS. THERE I S SOME ADHOC ALLOCATION BASED ON CERTAIN KEYS/PARAMETERS SUCH AS SALES, COST CENTRES, PRODUCTION UNITS IS INVOLVED. IN OUR VIEW, PRIMA FACIE, THE DECISIOIN OF THE TPO/DRP CONSTITUTES REEXAMINATION. THEREFORE, WE ARE OF THE CONSIDERED OPINION THE ISSUE OF A DJUSTMENT TO THE MANUFACTURING SEGMENT IS REQUIRED TO BE REMANDED TO THE FILE OF AO/TPO/DRP FOR FRESH ADJUDICATION OF THE ISSUE. AO IS DIRECTED TO GRANT REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH THE PRINCIPLES OF NATURAL JUST ICE. THUS, THE RELEVANT ISSUE 9 ITA NO S. 1309, 1308, 1485 & 1348/PUN/2015, A.YS. 2009 - 10 & 2010 - 11 RAISED IN GROUND NO.2 WITH ITS SUB - GROUNDS ARE ALLOWED FOR STATISTICAL PURPOSES. THUS, IN VIEW OF ACCEPTED FACT THAT THERE HAS BEEN NO CHANGE IN THE FACTS AND CIRCUMSTANCES IN THE ASSESSMENT YEAR UNDER APPEAL, WE FOLLOW TH E ORDER OF CO - ORDINATE BENCH IN ASSESSEES OWN CASE FOR IMMEDIATELY PRECEDING ASSESSMENT YEAR AND ALLOW GROUND NO. 2 FOR STATISTICAL PURPOSE ON SAME TERMS. 8. IN GROUND NO. 3 THE ASSESSEE HAS ASSAILED REJECTION OF RPM AND SELECTION OF TNMM AS THE MOST APPROPRIATE METHOD FOR BENCHMARKING TRADING ACTIVITY. WE FIND THAT IDENTICAL GROUND WAS RAISED BY ASSESSEE IN ITS APPEAL BEFORE THE TRIBUNAL FOR ASSESSMENT YEAR 2008 - 09 AS GROUND NO. 3. THE TRIBUNAL AFTER CONSIDERING VARIOUS DECISIONS AND THE FACTS OF TH E CASE ALLOWED GROUND NO. 3 . THE TRIBUNAL SUMMED UP ITS FINDINGS BY OBSERVING AS UNDER : 23. FROM THE ABOVE, IT IS SETTLED LEGAL POSITION AT THE VARIOUS BENCHES OF THE TRIBUNAL THAT, IN CASE OF DISTRIBUTION ACTIVITY, EVEN WHEN THERE ARE SELLING AND MARKETING EXPENSES ARE BORNE BY THE ASSESSEE, THERE CANNOT BE ANY VALUE ADDITION TO THE PRODUCT IN QUESTION. IN SUCH CASES, RESALE PRICE METHOD IS THE MOST APPROPRIATE ONE AND ACCORDINGLY WE REVERSE THE DECISION GIVEN BY THE AO/TPO/DRP IN THRUSTING ON THE ASSESSEE THE TNM METHOD TO THE TRANSACTION UNDER CONSIDERATION. IN ANY CASE, IT IS NOT THE CASE OF THE REVENUE THE ASSESSEE IS NOT INTO DISTRIBUTION ACTIVITY. ACCORDINGLY, IN PRINCIPLE, GROUND NO.3 RAISED BY THE ASSESSEE IS ALLOWED. 9. THE LD. DR HAS NO T PLACED ON RECORD ANY MATERIAL CONTRARY TO THE DECISION OF CO - ORDINATE BENCH AND HENCE WE FIND NO REASON TO TAKE A DIFFERENT VIEW. ACCORDINGLY, GROUND NO. 3 RAISED IN THE APPEAL BY THE ASSESSEE IS ALLOWED ON SIMILAR TERMS. 10 ITA NO S. 1309, 1308, 1485 & 1348/PUN/2015, A.YS. 2009 - 10 & 2010 - 11 10. THE GROUND NOS. 4 AND 5 RA ISED IN THE APPEAL BY THE ASSESSEE ARE CONSEQUENTIAL TO GROUND NO. 3 RAISED IN THE APPEAL. THE CO - ORDINATE BENCH OF THE TRIBUNAL WHILE ADJUDICAT ING GROUND NO. 3 IN ASSESSMENT YEAR 2008 - 09 OBSERVED THAT THE OTHER RELATED GROUNDS HAVE BECOME ACADEMIC BUT ON THE REQUEST OF LD. AR HAS REMITTED THE MATTER BACK TO AO/TPO FOR FRESH CONSIDERATION. THE TRIBUNAL OBSERVED : 25. FURTHER, LD. COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO THE ADDITIONAL GROUND FILED ON 08 - 03 - 2015 AND 08 - 06 - 2015 AND SUBMITTED THAT THESE GROUNDS RELATE TO BENCHMARKING OF THE TRANSACTIONS FROM THE TRADING SEGMENTS. DECISION ON THE MOST APPR OPRIATE METHOD (RESALE PRICE METHOD) MAKES MOST OF THESE ADDITIONAL GROUNDS INFRUCTUOUS. HOWEVER, IT IS THE PRAYER OF THE LD. COUNSEL FOR THE ASSESSEE THAT THESE ADDITIONAL GROUNDS MAY BE ADMITTED AND REMITTED TO THE FILE OF THE AO/TPO/DRP FOR CONSIDERING THE SAME AT THE TIME OF BENCHMARKING STUDY OF THE INTERNATIONAL TRANSACTIONS IN THE TRADING SEGMENT APPLYING RESALE PRICE METHOD. 26. ON HEARING BOTH THE SIDES ON THE ISSUES OF ADDITIONAL GROUND, WE FIND THE ADDITIONAL GROUND, BEING LEGAL IN NATURE, ARE REQUIRED TO BE ADMITTED AND SHOULD BE REMITTED TO THE FILE OF THE AO/TPO/DRP FOR CONSIDERING HIS BENCHMARKING STUDIES APPLYING RESALE PRICE METHOD. WE FIND THESE GROUNDS RELATE TO THE ASPECTS OF BENCHMARKING OF INTERNATIONAL TRANSACTIONS OF TRADING ACTIVI TY. IN OUR VIEW, TPO SHOULD BE DIRECTED TO APPLY RESALE PRICE METHOD AS MOST APPROPRIATE METHOD FOR THE REASONS DISCUSSED ABOVE AND UNDERTAKE THE EXERCISE OF BENCHMARKING THEM AS PER THE RULES ON THE SUBJECT. AO/TPO SHALL GRANT REASONABLE OPPORTUNITY OF BE ING HEARD TO THE ASSESSEE IN ACCORDANCE WITH THE SET PRINCIPLES OF NATURAL JUSTICE. HENCE, FOR THE TIME BEING, THESE ADDITIONAL GROUNDS ARE TREATED AS ACADEMIC AND ARE REMANDED TO THE FILE OF AO. THE LD. AR OF THE ASSESSEE HAS PRAYED FOR RESTORING THE ISSUE BACK TO AO/TPO FOR FRESH CONSIDERATION. IN LIGHT OF THE PRAYER MADE AND THE DECISION OF CO - ORDINATE BENCH, WE DIRECT THE ASSESSING OFFICER TO RE - ADJUDICATE THE SAME. ACCORDINGLY, GROUND NOS. 4 AND 5 RAISED IN THE APPEAL ARE ALLOWED FOR STATISTICAL PURPOSE. 11 ITA NO S. 1309, 1308, 1485 & 1348/PUN/2015, A.YS. 2009 - 10 & 2010 - 11 11. GROUND NO. 6 IS WITH RESPECT TO ALLOWING VARIATION TO THE EXTENT OF 5% . THE LD. AR HAS NOT PRESSED THE GROUND BEING PRE - MATURE. ACCORDINGLY, GROUND NO. 6 I S DISMISSED , AS SUCH. 12. IN GROUND NO. 7 THE ASSESSEE HAS ASSAILED THE LEVY OF INITIATION OF PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE ACT. CHALLENGE TO INITIATION OF PENALTY PROCEEDINGS AT THIS STAGE IS PREMATURE AND ACCORDINGLY, GROUND NO. 7 IS DISM ISSED AS PREMATURE. 13. IN THE RESULT, THE APPEAL OF ASSESSEE IS PARTLY ALLOWED IN THE AFORESAID TERMS. 14. IN APPEAL BY THE REVENUE THE SOLITARY ISSUE RAISED IS EXCLUSION OF NOVARTIS INDIA LTD. AS COMPARABLE UNDER MANUFACTURING SEGMENT. GROUND NO. 2 IN THE ASSESSEES APPEAL IS WITH RESPECT TO BENCHMARKING OF INTERNATIONAL TRANSACTIONS UNDER MANUFACTURING SEGMENT. THE ASSESSEE HAD ADOPTED TNMM - TRANSACTION BY TRANSACTION APPROACH , WHEREAS , THE TPO HAD ADOPTED TNMM AGGREGATION APPROACH. SINCE, WE HAVE HELD THAT APPROACH ADOPTED BY TPO DESERVES TO BE REJECTED, THE SELECTION OF COMPARABLES HAS TO BE MADE ACCORDINGLY. THEREFORE, WE DEEM IT APPROPRIATE TO REMIT GROUND NO. 1 RAISED IN THE APPEAL BY REVENUE TO TPO/AO FOR SELECTING FRESH COMPARABLE S IN L INE WITH TRANSACTION BY TRANSACTION APPROACH. 15. GROUND NOS. 2 AND 3 RAISED IN THE APPEAL BY THE REVENUE ARE GENERAL IN NATURE AND HENCE, REQUIRE NO ADJUDICATION. 12 ITA NO S. 1309, 1308, 1485 & 1348/PUN/2015, A.YS. 2009 - 10 & 2010 - 11 16. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSE. IT A NOS. 1 308 & 1348 /PUN/2015 (A.Y . 2010 - 11) 17. THE ASSESSEE IN ASSESSMENT YEAR 2010 - 11 HAS RAISED FOLLOWING GROUNDS ASSAILING THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS). 1. GENERAL THE LEARNED CIT (A) ERRED IN LAW AND ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE IN CONFIRMING THE TRANSFER PRICING ADJUSTMENT AMOUNTING TO RS. 9,89,13,140 TO THE VALUE OF INTERNATIONAL TRANSACTIONS ENTERED INTO BY THE APPELLANT WITH ITS ASSOCIATED ENTERPRISES IN RESPECT OF ITS TRADING ACTIVITY. 2. THE LEARNE D CIT(A) ERRED IN UPHOLDING THE ACTION OF THE ASSESSING OFFICER OF NOT GRANTING THE APPELLANT THE SET - OFF OF UNABSORBED DEPRECIATION AMOUNTING TO RS.45,33,31,823 AND BROUGHT FORWARD BUSINESS LOSSES AMOUNTING TO RS. 5,23,86,135 WHILE ARRIVING AT THE 'TOTAL INCOME' OF THE APPELLANT. 3. REJECTION OF RESALE PRICE METHOD (RPM) AND SELECTING OF TRANSACTIONAL NET MARGIN METHOD (TNMM) AS THE MOST APPROPRIATE METHOD FOR TRADING ACTIVITY 3.1 THE LEARNED CIT (A) ERRED IN LAW AND ON THE FACTS AND IN CIRCUMSTANCE S OF THE CASE IN NOT ACCEPTING THE BENCHMARKING OF TRADING ACTIVITY DONE BY THE APPELLANT USING 'RESALE PRICE METHOD' AND USING 'TRANSACTIONAL NET MARGIN METHOD' AS THE MOST APPROPRIATE METHOD BASED ON THE FOLLOWING FINDINGS: 3.1.1 CHARACTERIZATION OF TH E APPELLANT - NOT A LIMITED RISK DISTRIBUTOR THE LEARNED CIT (A) ERRED IN LAW AND ON THE FADS AND IN CIRCUMSTANCES OF THE CASE IN NOT ACCEPTING THAT THE APPELLANT'S CHARACTERIZATION OF THE LIMITED RISK DISTRIBUTOR ALLEGING THAT IT ADDS SUBSTANTIAL VALUE TO THE FINISHED GOODS IMPORTED FROM THE ASSOCIATED ENTERPRISES. 3.1.2 FUNCTIONAL COMPARABILITY V/S PRODUCT COMPARABILITY THE LEARNED CIT (A) ERRED IN LAW AND ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE IN CONCLUDING THAT PRODUCT COMPARABILITY IS IMPORTANT UNDER RPM AS THE MOST APPROPRIATE METHOD IGNORING FUNCTIONAL COMPARABILITY WHICH IS THE ONLY REQUIREMENT. 3.1.3 SUBS TANTIAL SELLING AND MARKETING EXPENDITURE INCURRED THE LEARNED CIT (A) ERRED IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE IN CONCLUDING THAT THE APPELLANT HAS INCURRED SUBSTANTIAL SELLING AND MARKETING EXPENDITURE. 3.1.4 APPELLANT DEALS IN LIFES AVING DRUGS THE LEARNED CIT (A) ERRED IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE IN CONCLUDING THAT THE APPELLANT DEALS IN LIFE SAVING DRUGS WHICH IS FAR FROM THE FACTS OF THE CASE. 3.1.5 RPM IS CONSISTENTLY USED AND ACCEPTED BY THE TRANSFER PRIC ING AUTHORITIES 13 ITA NO S. 1309, 1308, 1485 & 1348/PUN/2015, A.YS. 2009 - 10 & 2010 - 11 THE LEARNED CIT (A) ERRED IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE IN REJECTING RPM AS MOST APPROPRIATE METHOD WHICH WAS CONSISTENTLY USED BY THE APPELLANT AND ACCEPTED BY THE TRANSFER PRICING OFFICERS UNTIL A. Y 2007 - 08 TO BENCHMARK THE TRADING A CTIVITY. 4. ERRONEOUS SELECTION OF COMPARABLE COMPANY IN TRADING ACTIVITY 4.1 THE LEARNED CIT (A) ERRED IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE IN CONSIDERING MANKIND PHARMA LIMITED AS A COMPARABLE COMPANY. 5. THE LEARNED CIT (A) ERRED IN F ACTS AND CIRCUMSTANCES OF THE CASE IN NOT GRANTING THE FUNCTIONAL ADJUSTMENTS TO THE APPELLANT. 6.THE LEARNED CIT (A) ERRED IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE IN MAKING AN ADJUSTMENT TO THE ENTIRE SALES VALUE OF TRADING SEGMENT I.E. RS. 79,04,19,850 WITHOUT RESTRICTING TO THE INTERNATIONAL TRANSACTION OF THE IMPORT OF FINISHED GOODS FOR RESALE AMOUNTING TO RS.52,81,19, 137. 7. THE HONORABLE CIT (A) ERRED IN LAW IN NOT ALLOWING VARIATION TO THE EXTENT OF (+/ - ) 5%, WHILE DETERMINING THE A RM'S LENGTH PRICE OF THE INTERNATIONAL TRANSACTIONS. 8. THE LEARNED CIT (A) ERRED IN LAW AND ON FACTS OF THE CASE IN NOT ADJUDICATING THE INITIATION OF THE PENALTY PROCEEDINGS UNDER SECTION 271(1) (C) OF THE ACT. 9. EACH OF THE ABOVE GROUNDS OF APPEAL IS WITHOUT PREJUDICE TO THE OTHER. 10. THE APPELLANT RESERVES THE RIGHT TO AMEND, ALTER OR ADD TO THE GROUNDS OF APPEAL. THE REVENUE IN ITS APPEAL HAS IMPUGNED THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) BY RAISING FOLLOWING GROUNDS : 1. WHETHER LD. CIT(A) IN THE FACTS AND CIRCUMSTANCES ERRED BY DIRECTING AO TO EXCLUDE NOVARTIS INDIA PVT. LTD. AS COMPARABLE COMPANY BY CONCLUDING THAT THE MANUFACTURING IS SIGNIFICANT ACTIVITY OF THE COMPANY. THE LD. CIT(A) IGNORED THE FACT THAT THE RAW MATE RIAL PURCHASED FOR MANUFACTURING IS RS. 18.2 CRS. ONLY AND HENCE DISTRIBUTION IS MAIN ACTIVITY OF COMPANY. 2. FOR THESE AND SUCH OTHER GROUNDS AS MAY BE URGED AT THE TIME OF HEARING THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX ( APPEALS) MAY BE VACATED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 3. THE APPELLANT CRAVES TO ADD, AMEND, ALTER OR DELETE ANY OF THE GROUNDS OF APPEAL DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE HONBLE TRIBUNAL. 18. AFTER PERUSAL OF GROUNDS RAISED BY ASSESSEE AND REVENUE WE FIND THAT BOTH THE SIDES HAVE ASSAILED THE FINDINGS OF COMMISSIONER OF INCOME 14 ITA NO S. 1309, 1308, 1485 & 1348/PUN/2015, A.YS. 2009 - 10 & 2010 - 11 TAX (APPEALS) ON SIMILAR ISSUES WHICH WERE RAISED IN ASSESSMENT YEAR 2009 - 10. THE REPRESENTATIVES OF BOTH THE SIDES AD MITTED THAT THE ISSUES RAISED IN ASSESSMENT YEAR 2010 - 11 ARE SIMILAR TO THE ISSUES RAISED BY THE RESPECTIVE SIDES IN ASSESSMENT YEAR 2009 - 10. THE LD. AR SUBMITTED THAT THE ONLY ADDITIONAL ISSUE IN THE APPEAL IS WITH RESPECT TO NON - GRANTING OF SET OFF OF U NABSORBED DEPRECIATIONS RS.45,33,31,823/ - AND BROUGHT FORWARD OF BUSINESS LOSSES AMOUNTING TO RS.5,23,86,135/ - . THE COMMISSIONER OF INCOME TAX (APPEALS) AFTER MAKING OBSERVATIONS THAT UNABSORBED DEPRECIATION AND BROUGHT FORWARD LOSS WOULD BE SET OFF AS PE R LAW REJECT THE GROUND RAISED BY ASSESSEE. 19. A PERUSAL OF THE ASSESSMENT ORDER DATED 06 - 05 - 2014 SHOWS THAT THE ASSESSING OFFICER HAS NOT DEALT WITH THE ISSUE RELATING TO SET OFF OF UNABSORBED DEPRECIATION AND BROUGHT FORWARD UNABSORBED LOSS WHILE COM PUTING TOTAL INCOME OF THE ASSESSEE. THE ASSESSING OFFICER HAS ONLY DEALT WITH TP ADJUSTMENT AND THEREAFTER HAS CLOSED THE ASSESSMENT. THE COMMISSIONER OF INCOME TAX (APPEALS) IN THE IMPUGNED ORDER IN A CRYPTIC MANNER HAS APPROVED THE ACTION OF ASSESSING OFFICER IN NOT CONSIDERING UNABSORBED DEPRECIATION AND BROUGHT FORWARD LOSSES. WE ARE OF THE CONSIDERED VIEW THAT BOTH THE AUTHORITIES BELOW HAVE FAILED TO ADJUDICATE THIS ISSUE. WE DEEM IT APPROPRIATE TO REMIT THIS ISSUE BACK TO THE FILE OF ASSESSIN G OFFICER FOR DE NOVO CONSIDERATION, IN ACCORDANCE WITH LAW. ACCORDINGLY, GROUND NO. 2 RAISED IN THE APPEAL BY ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 20. WE FIND THAT THE GROUND NO. 3 RAISED IN APPEAL FOR ASSESSMENT YEAR 2010 - 11 IS IDENTICAL TO G ROUND NO. 3 RAISED IN APPEAL FOR ASSESSMENT YEAR 15 ITA NO S. 1309, 1308, 1485 & 1348/PUN/2015, A.YS. 2009 - 10 & 2010 - 11 2009 - 10 BY THE ASSESSEE. WE HAVE GIVEN DETAILED FINDINGS WHILE ADJUDICATING GROUND NO. 3 IN ASSESSMENT YEAR 2009 - 10. THE SAME REASONING WOULD MUTATIS MUTANDIS APPLY TO GROUND NO. 3 IN ASSESSMENT YEAR 2010 - 11, AS WELL. ACCORDINGLY, THE GROUND NO. 3 IS ALLOWED IN SAME TERMS. 21. THE GROUND NOS. 4 TO 6 IN THE PRESENT APPEAL ARE CONNECTED TO GROUND NO. 3. THE LD. AR HAS PRAYED FOR RESTORING THE SAME TO AO/TPO FOR FRESH ADJUDICATION IN THE LIGHT OF DECISION OF CO - ORDINATE BENCH IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2008 - 09. THUS, GROUND NOS. 4 TO 6 ARE REMITTED TO AO/TPO FOR FRESH ADJUDICATION, IN LINE WITH THE ORDER OF TRIBUNAL IN ASSESSEES CASE FOR ASSESSMENT YEAR 2008 - 09. GROUND NOS. 4 TO 6 ARE AL LOWED FOR STATISTICAL PURPOSE, ACCORDINGLY. 22. THE GROUND NO. 7 RELATES TO ALLOWING OF 5% RANGE BENEFIT AND GROUND NO. 8 IS IN RESPECT OF INITIATION OF PENALTY U/S. 271(1)(C) OF THE ACT. THE LD. AR HAS STATED AT THE BAR THAT BOTH THESE GROUNDS ARE N OT PRESSED BEING PREMATURE. ACCORDINGLY, GROUND NOS. 7 AND 8 ARE DISMISSED AS SUCH. 23. GROUND NOS. 1, 9 AND 10 ARE GENERAL IN NATURE, HENCE REQUIRE NO ADJUDICATION. IN VIEW OF OUR ABOVE FINDINGS, THE APPEAL OF ASSESSEE IS PARTLY ALLOWED IN AFORESAI D TERMS. 24. THE SOLITARY ISSUE RAISED BY THE REVENUE IN APPEAL IS IDENTICAL TO GROUND RAISED IN ASSESSMENT YEAR 2009 - 10. SINCE, WE HAVE REMITTED THE SAID ISSUE BACK TO THE FILE OF AO/TPO FOR FRESH ADJUDICATION. FOLLOWING 16 ITA NO S. 1309, 1308, 1485 & 1348/PUN/2015, A.YS. 2009 - 10 & 2010 - 11 PARITY, THE GROUND RAISED BY TH E REVENUE IN APPEAL FOR ASSESSMENT YEAR 2010 - 11 IS ALSO RESTORED TO AO/TPO FOR FRESH ADJUDICATION. ACCORDINGLY, THE APPEAL OF REVENUE IS ALLOWED FOR STATISTICAL PURPOSE. 25. IN THE RESULT, THE APPEALS OF ASSESSEE ARE PARTLY ALLOWED AND THE APPEALS OF R EVENUE ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON FRIDAY, THE 22 ND DAY OF SEPTEMBER, 2017 . SD/ - SD/ - ( . /D. KARUNAKARA RAO ) ( / VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 22 ND SEPTEMBER, 2017 RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 13, PUNE 4. / THE CIT (IT/TP), PUNE 5. , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. / / // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE