The ACIT, Vapi Circle, Vapi V. M/s. Bilag Industries Pvt.Ltd.,

ITA 1441/AHD/2006

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0910 (ITAT-AHMEDABAD)
• Duration Of Justice: 10 year(s) 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-08-2016
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: I
• Next Hearing Date: 15-06-2016
• Assessment Year: 2002-2003
• Appeal Filed On: 02-06-2006
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MAHESH SHAH
• Assessee Lawyers: M K PATEL WITH A GOPALKRISHNAN
• Keywords: Business income; Depreciation; Transfer pricing; International transaction; Bad and doubtful debts; Avoidance of tax
• Section: 92C; 143(3); 92B; 92A; 80HHC; 133(6); 80G; 10B; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH BEFORE: S H RI PRAMOD KUMAR , ACCOUNTANT MEMBER AND SHR I S. S. GODARA , JUDICIAL MEMBER THE ACIT, VAPI CIRCLE, VAPI (APPELLANT /RESPONDENT ) VS BILAG INDUSTRIES P. LTD, 306/2, IIND PHASE, GIDC, VAPI, PAN: AABCB2100L (RESPONDENT /APPEL LANT ) REVENUE BY : S H RI MAHESH SHAH, CIT - D . R. ASSESSEE BY: S H RI M.K. PATEL WITH A GOPALKRISHNAN , A.R. DATE OF HEARING : 16 - 0 6 - 2 016 DATE OF PRONOUNCEMENT : 05 - 08 - 2 016 / ORDER P ER : S. S. GODARA , JUDICIAL MEMBER : - THIS SET OF THREE APPEALS PERTAINS TO ASSESSMENT YEAR 2002 - 03. THE REVENUE AND ASSESSEE FILE THEIR RESPECTIVE CROSS APPEAL S ITA 1441 & 1670 /AHD/2006 AGAINST THE CIT(A), VALSAD S ORDER DATED 31 - 03 - 2006 IN APPEAL NO. CIT(A)/VLS/56/05 - 06 ; IN PROCEEDINGS UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . I T A NO S 1441 & 1670 / A HD/20 0 6 & 343/AHD/2012 A SSESSMENT YEAR 200 2 - 03 I.T.A NO S . 1441 & 1670 /AHD/06 & 343 /AHD/20 12 A.Y. 2002 - 03 PAGE NO ACIT VS. BILAG INDUSTRIS PVT. LTD. 2 THE ASSESSEE HAS FILED ITS LATTER APPEA L AGAINST THE COMMON LOWER APPELLATE ORDER PASSED IN CIT(A)/VLS/327/05 - 06 IN PROCEEDINGS U/S. 1 43(3) R.W.S. 263 OF THE ACT. 2. WE COME TO THE RIVAL PLEADINGS FIRST. THE REVENUE IN ITS APPEAL ITA 1441/AHD/2006 RAISES EIGHT SUBSTANTIVE GROUNDS INTER ALIA CHALLENGING THE LOWER APPELLATE ORDER DELETING DISALLOWANCES/ADDITIONS OF STAFF WELFARE EXPENSES AMOUNTING TO RS. 2,19,434/ - , LEGAL PROFESSIONAL EXPENSES OF RS. 1,20,000/ - , FOREIGN TRAVEL EXPENSES OF RS. 11,24,043/ - , OIL AND PETROL EXPENSES OF RS. 72,804/ - , PF/ESIC CONTRIBUTIONS OF RS. 9,939/ - , DIRECTIONS GIVEN TO ASSESSING OFFICER FOR NOT EXCLUDING INTEREST INCOME OF RS. 1,01,75,905/ - , EXCHANGE GAIN OF RS. 8029/ - , PROVISION S WRITTEN BACK OF RS. 1,40,77, 969/ - AND SCRAP SALE OF RS. 38,56,085/ - FOR THE PURPOSE OF COMPUTING SECTION 80HHC DEDUCTION, REVERSING UPWARD TRANSFER PRICING ADJUSTMENT OF RS. 2,9 6,10,000/ - AND IN FURTHER HOLDING THAT EXCISE DUTY AND SALES TAX ARE NOT TO BE INCLUDED IN TOTAL TURNOVER FOR COMPUTING SECTION 80HHC DEDUCTION; RESPECTIVELY. 3. THE ASSESSEE S CROSS APPEAL ITA 1670/AHD/2006 INVOLVES TWO SUBSTANTIVE GROUNDS ASSAILING COR RECTNESS OF THE LOWER APPELLATE ORDER CONFIRMING ASSESSING OFFICER S ACTION IN NOT TREATING ITS INTEREST INCOME OF RS. 1,01,75,905/ - AS BUSINESS INCOME FOR THE PURPOSE OF SECTION 80 HHC DEDUCTION AND UPHOLDING DISALLOWANCE OF LOSS ON TRADED ITEMS TO THE TU NE OF RS. 13,67,412/ - ; RESPECTIVELY. I.T.A NO S . 1441 & 1670 /AHD/06 & 343 /AHD/20 12 A.Y. 2002 - 03 PAGE NO ACIT VS. BILAG INDUSTRIS PVT. LTD. 3 4. WE COME TO ASSESS EE S LATTER APP EAL ITA 343/AHD/2012 RAISING SOLE ISSUE OF DISALLOWANCE O F LOSS ON TRADED ITEMS AS IN ITS FORMER AP PEAL . IT EMANATES FROM THE CASE FILE THAT THE INSTANT APPEAL SUFFERS FROM DELAY O F 2038 DAYS IN FILING. THE ASSESSEE - APPELLANT HAS PUT UP A CONDONATION PETITION INTER ALIA PLEADING THAT THE INSTANT APPEAL ARISES FROM CIT(A) S ORDER IN LATTER APPEAL INVOLVING PROCEEDING U/S. 143(3) R.W.S 263 OF THE ACT. IT HIGHLIGHTS THE FACT TO HAVE RAISED THE ISSUE IN QUESTION OF LOSS ON TRADED GOODS IN EARLIER APPEAL ARISING FROM SECTION 143(3) PROCEEDINGS. THE ASSESSEE ACCORDINGLY STATES THAT IT HAS PREFERRED THE INSTANT APPEAL ON COMING TO KNOW ABOUT THE LEGAL REQUIREMENT OF INSTITUTION OF SEPAR ATE APPEALS FROM THE LOWER APPELLATE ORDER PASSED IN DIFFERENT CASES. THE REVENUE FAILS TO CONTROVERT THIS LEGAL AND FACTUAL POSITION . IT HAS ALREADY COME ON RECORD THAT THE ASSESSEE HAS RAISED THE VERY GROUND IN ITS FORMER APPEAL. WE OBSERVE IN THESE F ACTS THAT THERE IS NO REASON FOUND TO REJE CT ASSESSEE S CONDONATION PETITION ON THIS TECHNICAL ISSUE SINCE IT HAS ALREADY RAISED THE VERY GROUND IN IT S FORMER APPEAL. WE CONDONE THIS DELAY OF 2038 DAYS IN QUESTION. APPEAL ITA 343/AHD/2012 IS ADMITTED F OR ADJUDICATION ON MERITS. 5. WE COME TO THE RELEVANT FACTS COMMON TO ALL THREE APPEALS NOW. THE ASSESSEE COMPANY MANUFACTURES PESTICIDES AND INTERMEDIATES. IT FILED RETURN ON 30 - 10 - 2002 STATING INCOME OF RS. 92,62,68,920/ - UNDER NORMAL PROVISIONS FOLL OWED BY MAT PROFITS AMOUNTING TO RS. 94,03,09,000/ - . THE ASSESSING OFFICER COMPLETED A REGULAR ASSESSMENT ON 21 - 03 - 2005 COMPUTING TAXABLE INCOME AS RS. I.T.A NO S . 1441 & 1670 /AHD/06 & 343 /AHD/20 12 A.Y. 2002 - 03 PAGE NO ACIT VS. BILAG INDUSTRIS PVT. LTD. 4 1,04,55,77,950/ - IN VIEW OF VARIOUS DISALLOWANCES / ADDITIONS BEING MADE I.E. STAFF WELFARE EXPENSES, LEG AL/PROFESSIONAL CHARGES PAID TO SMT. KIRAN MINO CHA, FOREIGN TRAVEL EXPENSES, OIL/PETROL EXPENSES, LATE PAYMENT OF PF AND ESIC CONTRIBUTIONS, TRANSFER PRICING UPWARD ADJUSTMENT AND REWORKING OF SECTION 80HHC AS WELL AS 80G DEDUCTIONS AMOUNTING TO RS. 2,19,4 34/ - , RS. 1,20,000/ - , RS. 11,24,043/ - , RS. 72,804/ - , RS. 9939/ - , RS. 2,96,10,000/ - , RS. 86,90,52,173/ - AND RS. 11,12,500/ - ; RESPECTIVELY. THIS FOLLOWED ASSESSING OFFICER S RECTIFICATION DATED 04 - 08 - 2005 DETERMINING ASSESSE E S TAXABLE INCOME AS RS. 1,05, 2 0,44,197/ - . 6. IT TRANSPIRES FROM THE CASE FILE THAT THE CIT THEREAFTER FORMED AN OPINION THAT THE ABOVE STATED REGULAR ASSESSMENT WAS ERRONEOUS CAUSING PREJUDICE TO INTEREST OF THE REVENUE. HE ISSUED SECTION 263 SHOW CAUSE NOTICE DATED 13 - 10 - 2005 FO R INVOKING REVISION JURISDICTION AS UNDER: - 'IN THE ABOVE CASE THE ASSESSEE - COMPANY FILED ITS RETURN FOR A.Y.2002 - 03 ON 31 ST OCTOBER, 2002 SHOWING INCOME OF RS.92,62,68,920/ - UNDER THE NORMAL PROVISIONS AND A BOOK PROFIT OF RS.94,03,09,000/ - . ASSESSMENT OR DER U/S. 143(3) OF THE I. T. ACT WAS PASSED ON 21.03.2005 DETERMINING TOTAL INCOME OF RS. 1,04,55,77,950/ - . SUBSEQUENTLY ORDER U/S. 154 OF THE I. T. ACT WAS PASSED ON 4.8.2005 REVISING THE TOTAL INCOME AT RS. 1,05,20,44,197/ - . WHILE COMPLETING THE ASSESSM ENT, THE A.O HAS ALLOWED EXCESS DEDUCTION U/S. 80HHC OF THE I.T. ACT. THE DEDUCTION WAS WORKED OUT ON THE BASIS OF TOTAL TURNOVER OF RS.4,07,65,78,758/ - . THE EXCISE DUTY AND SALES TAX COLLECTED BY THE ASSESSEE WERE NOT CONSIDERED AS PART OF THE TOTAL TURNO VER WHICH HAS RESULTED IN EXCESS ALLOWANCE OF DEDUCTION U/S. 80HHC OF THE I. T. ACT AND HAS RENDERED THE ASSESSMENT ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVENUE. I.T.A NO S . 1441 & 1670 /AHD/06 & 343 /AHD/20 12 A.Y. 2002 - 03 PAGE NO ACIT VS. BILAG INDUSTRIS PVT. LTD. 5 BESIDES,' THE FOLLOWING ISSUES HAVE NOT BEEN EXAMINED BY THE A. O (I) LOSS I N TRADED GOODS (II) TRIAL RUN EXPENSES V/S. TRIAL RUN PRODUCT/ON AND CLAIM FOR DEPRECIATION ON SUCH PLANT & MACHINERY. (III) THE OUTCOME OF SHOW - CAUSE NOTICE ISSUED BY THE CENTRAL EXCISE AUTHORITIES. (IV) EXPENDITURE ON ENERGY AND FUEL IN VIE W OF EXPENDITURE ON ENERGY SAVING DEVICES. 7. THE CIT ACCORDINGLY PASSED HIS ORDER DATED 22 - 12 - 2005 DIRECTING THE ASSESSING OFFICER TO FRAME A DE - NOVO ASSESSMENT ON THE ABOVE STATED ASPECTS. THE ASSESSING OFFICER FINALIZED CONSEQUENTIAL PROCEEDINGS ON 24 - 02 - 2006 INTER ALIA ADDING TRADING LOSS OF RS. 13,67,412/ - AND FURTHER REVISED SECTION 80HHC DEDUCTION TO RS. 82,57,46,823/ - . THE TOTAL TAXABLE INCOME ACCORDINGLY STOOD COMPUTED TO RS. 1,09,02,50,712/ - . THE ASSESSEE APPEARS TO HAVE PREFERRED TWO SEPARAT E APPEALS NO. 56 AND 327/2 005 - 06. THE CIT(A) HAS PARTLY ACCEPTED BOTH OF THEM VIDE COMMON ORDER UNDER CHALLENGE IN THESE THREE CASES T O THE EXTENT INDICATED HEREINABOVE. BOTH THE LEARNED REPRESENTATIVES REITERATE THEIR RESPECTIVE PLEADINGS. THEY FU RTHER SUPPORT THE CIT(A) S ORDER TO THE EXTENT IT HAS GONE IN THEIR FAVOUR. 8. WE PROCEED TO DEAL WITH THE REVENUE S APPEAL ITA 1670/AHD/2006. ITS FIRST SUBSTANTIVE GROUND SEEKS TO REVIVE STAFF WELFARE EXPENDITURE DISALLOWANCE OF RS. 2,19,434/ - COMING TO 20% OF THE GROSS SUM OF RS. 10,97,701/ - ON THE ASSUMPTION THAT THE I.T.A NO S . 1441 & 1670 /AHD/06 & 343 /AHD/20 12 A.Y. 2002 - 03 PAGE NO ACIT VS. BILAG INDUSTRIS PVT. LTD. 6 ASSESSEE MIGHT HAVE INCURRED THE SAME FOR ITS CUSTOMERS ENTERTAINMENT AS WELL AS VISITORS AND RELATIVES OF ITS EMPLOYEES AND DIRECTORS. HE FOLLOWED HIS DISCUSSION IN ASSESSMENT YEARS 2000 - 01 AND 2001 - 02. THE CIT(A) DELETES THE SAME BY HOLDING THAT THE IMPUGNED DISALLOWANCE IS NOT SUPPORTED BY ANY COGENT REASON. THE VERY FACTUAL POSITION CONTINUES HEREIN AS WELL SINCE THE REVENUE FAIL S TO PRODUCE ANY MATERIAL ON RECORD BUTTRESSING T HE IMPUGNED 20% DISALLOWANCE WHEREIN THE REST 80% ALREADY STAND ACCEPTED. NOR DOES IT MAKE OUT A CASE THAT THE IMPUGNED DISALLOWANCE STANDS AFFIRMED IN THE ABOVE STATED PRECEDING ASSESSMENT YEARS. ITS FIRST SUBSTANTIVE GROUND FAILS ACCORDINGLY. 9. THE REVENUE S SECOND SUBSTANTI VE GROUND CHALLENGES CORRECTNESS OF THE LOWER APPELLATE ORDER DELETING DISALLOWANCE OF LEGAL AND PROFESSION EXPENDITURE AMOUNTING TO RS. 1,2 0,000/ - PAID TO SMT. KIRAN MINOCHA , WIFE OF ASSESS EE S DIRECTOR. WE NOTICE THAT THIS TRIB UNAL IN ASSESSEE S OWN CASE ITA 2817/AHD/2008 FOR ASSESSMENT YEAR 2000 - 01 HAS ALREADY ADJUDICATED THIS VER Y ISSUE IN ITS FAVOUR. LEARNED DEPARTMENTAL REPRESENTATIVE FAILS TO POINT OUT ANY EXCEPTION ON FACTS OR LAW. WE REJECT THIS SECOND SUBSTANTIVE GROUN D AS WELL. 10. THE REVENUE S THIRD SUBSTAN T I VE GROUND SEEKS TO REVIVE FOREIGN TRAVEL EXPENDITURE DISALLOWANCE OF RS. 11,24,043/ - . THERE DOES NOT APPEAR TO BE ANY DISPUTE THAT THIS TRIBUNAL IN ASSESSMENT YEAR 2000 - 01 HAS REJECTED SIMILAR REVENUE S PLEA S. LEARNED DEPARTMENTAL REPRESENTATIVE PLEADS THAT THE ASSESSEE HAS NOT FILED THE RELEVANT I.T.A NO S . 1441 & 1670 /AHD/06 & 343 /AHD/20 12 A.Y. 2002 - 03 PAGE NO ACIT VS. BILAG INDUSTRIS PVT. LTD. 7 DETAILS OF THESE FOREIGN TRAVEL EXPENSES. SHRI PATEL TAKES US TO PAGES 48 TO 50 OF THE PAPER BOOK CATEGOR ICALLY DEMONSTRATING ALL RELEVANT DATES, PAYMENT CHANNEL, PARTICULARS FOLLOWED BY CORRESPONDING SUMS IN A TABULATED FORM. NO IRREGULARITY OR INFIRMITY IS POINTED OUT THEREIN. WE FIND NO REASON TO INTERFERE IN THE LOWER APPELLATE FINDINGS UNDER CHALLENGE. THIS THIRD SUBSTANTIVE GROUND ALSO MEETS THE SAME FATE A S THE FORMER TWO. 11. REVENUE S FOURTH SUBSTANTIVE GROUND ASS AILS CORRECTNESS OF THE CIT(A) S ORDER DELETING OIL AND PETROL EXPENSES DISALLOWANCE AMOUNTING TO RS. 72,804/ - MADE IN THE COURSE OF ASSESSMENT ALLEGING FAILURE IN FILING LOG BOOKS ALONG WITH OTHER CONTEMPORARY EVIDENCE. THE ASSESSING OFFICER INVOKED THE IMPUGNED DISALLOWANCE @ 20% OF THE GROSS CLAIM ON ESTIMATION BASIS ONLY. THE CIT(A) DELETES THE SAME QUOTING ASSESSING OFFICER S FAILURE IN PIN POINTING SPECIFIC DEFECTS IN ASSESSEE S CLAIM . THERE IS NO DISPUTE THAT THE ASSESSING AUTHORITY HAS ALREADY ACCEPTED 80% OF THE CLAIM SUM BY NOT RAISING ANY ISSUE THEREIN. WE CONCLUDE IN THESE FACTS THAT THE CIT(A) HAS RIGHTLY DECIDED THIS ISSUE IN ASSESSEE S FAVOUR. THIS FOURTH SUBSTANTIVE GROUND IS DECLINED. 12. THE REVENUE S FIFTH SUBS TA N TIVE GROUND SEEKS REVIVAL OF PF AND ESIC CONTRIBUTIONS DISALLOWANCES AMOUNTING TO RS. 9,939/ - . THERE IS NO DISPUTE THAT ASSESSEE DEDUCTED THE IMPUGNED CONTRIBUTIONS BUT PAID THE SAME BEFORE FILING ITS RETUR N. THE CIT(A) FOLLOWS HON BLE JURISDICTIONAL HIGH COURT DECI SI ON IN CASE OF ALEMBIC I.T.A NO S . 1441 & 1670 /AHD/06 & 343 /AHD/20 12 A.Y. 2002 - 03 PAGE NO ACIT VS. BILAG INDUSTRIS PVT. LTD. 8 GLASS INDU STRIES LTD. (2005) 149 TAXMANN 15 (GUJ) WHILST DELETING THE IMPUGNED DISALLOWANCE. THEIR LORDSHIPS IN A LATTER DECISION (2014) 366 ITR 170 (GUJ) IN CASE OF GUJ ARAT STATE ROAD TRANSPORT CORPORATION UPHOLD AN IDENTICAL DISALLOWANCE PERTAINING TO EMPLOYEES CONTRIBUTIONS TO PF/ESIC. WE DRAW SUPPORT THEREFROM TO DIRECT THE ASSESSING OFFICER FOR FRAMING A FRESH COMPUTATION ACCORDINGLY QUA EMPLOYEE S CONTRIBUTIONS IN QUESTION. WE COME TO EMPLOYERS CONTRIBUTION DISALLOWANCE ISSUE TO NOTICE THAT THEIR LORDSHIPS IN TAX APPEAL NO. 1373/09 DECIDED ON 19 - 03 - 2014 IN ASSESS EE S OWN CASE REJECT REVENUE S IDENTICAL ARGUMENT. THERE IS NO DISTINCTION IN THE IMPUGNED ASSESSMENT Y EAR AS POINT ED OUT IN COURSE OF HEARING. WE PARTLY ACCEPT THIS REVENUE S SUBSTANTIVE GROUND . SHRI PATEL AT THIS STAGE POINTS OUT THAT THE ASSESSEE HAS ALREADY DISALLOWED ON ITS OWN A SUM OF RS. 3,30,353/ - IN THIS REGARD. IT GOES WITHOUT GAINSAYING THA T THE ASSESSING OFFICER S CONSEQUENTIAL COMPUTATION WOULD BE ADJUSTED AGAINST THE SAME AS PER LAW. 13. THE REVENUE S SIXTH SUBSTANTIVE GROUND RAISES SECTION 80HHC DEDUCTION ISSUE QUA INTEREST INCOME OF R S. 1,01,75,905/ - , EXCHANGE GAIN OF RS. 8029, PROVI SION WRITTEN BACK OF RS. 1,40,77,969/ - AND SCRIP SALE OF RS. 38,56,085/ - ; RESPECTIVELY. THE ASSESSING OFFICER INVOKED SECTION 80HHC EXPLANATION (BAA) ENVISAGING 90% EXCLUSION OF EXPORT INCENTIVES COVERED IN SECTION 28[III(A), (B) & (C) CLAUSES ] AS WELL A S OTHER RECEIPTS BY WAY OF BROKERAGE, COMMISSION , INTEREST, RENT AND I.T.A NO S . 1441 & 1670 /AHD/06 & 343 /AHD/20 12 A.Y. 2002 - 03 PAGE NO ACIT VS. BILAG INDUSTRIS PVT. LTD. 9 OTHER SIMILAR RECEIPTS. THE ASSESSING OFFICER S VIEW IS THAT THE ABOVE STATED INTEREST INCOME HAS BEEN EARNED OUT OF SURPLUS FUNDS WITHOUT HAVING ANY DIRECT NEXUS WITH ASSESSEE S MANUFAC TURING AND EXPORT ACTIVITIES. HIS OPINION IS THAT THE ASSESSEE HAS NOT DERIVED THIS INTEREST INCOME FROM THE ABOVE TWO ACTIVITIES IN OTHER WORDS. THE ASSESSEE S CASE THROUGHOUT HAS BEEN THAT IT HAS DERIVED THE IMPUGNED INTEREST RECEIPTS IN THE NATURE OF RECOVERY OF INTEREST. IT PAID INTEREST OF RS. 12,73,02,750/ - ON TERM, WORKING CAPITAL AND OTHER LOANS. IT FURTHER PLEADED TO HAVE DEPLOYED SU R PLUS FUNDS ARISING FROM OPERATION TO RECOVER PART OF INTEREST COST WITHOUT ANY INVESTMENT BEING MADE ON LONG TE RM BASIS. THE ASSESSING OFFICER IN ASSESSMENT ORDER REITERATED DERIVED FROM PRINCIPLE TO EXCLUDE THE IMPUGNED INTEREST SUM FROM SECTION 80HHC DEDUCTION CLAIM. 14. THE CIT(A) ACCEPTS ASSESSEEE S ARGUMENT AS FOLLOWS: - 14.1.6 I HAVE CONSIDERED THE FIN DINGS OF THE ASSESSING OFFICER IN THE ASSESSMENT ORDER AND ALSO WENT THROUGH THE SUBMISSION AS MADE BY THE A.R. AND THE JUDICIAL FINDINGS RELIED UPON BY HIM. IN THE ABOVE REFERRED DECISIONS, IT IS SEEN THAT THE A.R. RELIED ON THE FINDINGS OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. NAGPUR ENGINEERING CO. 245 ITR 806.. WHEREIN ACCORDING TO THE A.R., THE HON'BLE COURT HAS HELD THAT INTEREST INCOME FROM FIXED DEPOSITS ARE ELIGIBLE PROFITS OF THE BUSINESS WHILE COMPUTING DEDUCTION U/S. 80HHC OF THE I.T. ACT. THE A.R. HAS ALSO MENTIONED THAT THE HON'BLE SUPREME COURT HAS DISMISSED SPECIAL LEAVE PETITION FILED BY THE DEPARTMENT AGAINST THE JUDGMENT AND THE SAME HAS BEEN REPORTED IN 244 ITR (ST.) 54. IN OTHER DECISIONS AS DELIVERED BY THE HON'BLE ITAT BENCH ES AHMEDABAD IN THE CASES OF SUNCITY SYNTHETICS LTD. ITA NO.230/AHD/1998; INDUCTOTHERM (INDIA) LTD. VS. DCIT, ITA NO.3850 (1995) AND PINK STAR VS. DCIT 72 ITD 137, IT IS OBSERVED THAT THE HON'BLE ITAT HAS ALLOWED NETTING OF EXPENSES AGAINST THE INCOME EARN ED AND HELD THAT IF THERE IS ANY I.T.A NO S . 1441 & 1670 /AHD/06 & 343 /AHD/20 12 A.Y. 2002 - 03 PAGE NO ACIT VS. BILAG INDUSTRIS PVT. LTD. 10 POSITIVE INCOME, THE SAME SHOULD BE EXCLUDED WHILE ALLOWING DEDUCTION U/S.80HHC. IT IS ALSO FOUND THAT SIMILAR VIEW HAS ALSO BEEN TAKEN BY THE HON'BLE ITAT BENCH AHMEDABAD IN THE CASES OF M/S. PRIYANKA GEMS SURAT; M/S. R. J AYKUMAR & CO., SURAT; M/S. MITUL GEMS, SURAT AND M/S. B.S.P. EXPORTS, SURAT. ETC, BY FOLLOWING THE DECISION OF ITAT DELHI (SPECIAL BENCH) IN THE CASE OF LALSONS VS. DCIT (2004) 89 ITD 25. WHEREIN IT HAS BEEN OBSERVED THAT FOR THE PURPOSE OF EXPLANATION (BA A) BELOW SUB - SECTION 4(B) OF SECTION 80HHC, WHILE REDUCING 90% OF NET INTEREST REMAINING AFTER ALLOWING SET OFF OF INTEREST PAID, WHICH HAS A NEXUS WITH THE INTEREST RECEIVED, THAT CAN BE REDUCED AND NOT THE 90% OF THE INTEREST AND THUS, RESPECTFULLY FOLLO WING THE VERDICT OF THE HON'BLE ITAT (SB), THE HON'BLE ITAT B - BENCH AHMEDABAD DIRECTED THE ASSESSING OFFICER IN THE CASES OF ABOVE ASSESSEES TO REDUCE 90% OF THE NET INTEREST RECEIVED BY WHILE COMPUTING DEDUCTION U/S 80HHC(4B). THE HON'BLE ITAT HAS (OBSERV ED THAT IF THE NET RESULT OF INTEREST PAYMENT AND RECEIPT IS REPRESENTED BY OF INTEREST PAID, NO REDUCTION IS TO BE MADE IN TERMS OF EXPLANATION (BAA). HERE, IN THE CASE OF THE APPELLANT COMPANY, IT IS SEEN THAT THE EXPENDITURE INCURRED , IN THE FORM OF IN TEREST IS MORE THAN THE INTEREST EARNED BY THE APPELLANT COMPANY DURING THE YEAR. I, THEREFORE, IN VIEW OF THE ABOVE REFERRED FINDINGS OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. NAGPUR ENGINEERING CO. LTD., 245 ITR 806 (BOM.), THE DECISION OF HON'BLE DELHI ITAT IN THE CASE OF LALSONS ENTERPRISES VS. DCIT 89 ITD 25 (SUPRA) ALONG WITH OTHER REFERRED DECISIONS, ACCEPT THE CONTENTION OF THE A.R. AND REJECT THE EXCLUSION AS MADE BY THE ASSESSING OFFICER IN THE FORM OF INTEREST RECEIVED AMOUNTING TO RS. 1,01,75,905/ - FOR WORKING OUT THE DEDUCTION U/S.80HHC. IN THE CASE OF THE APPELLANT COMPANY, IT IS SEEN THAT THE AMOUNT OF INTEREST RECEIVED IS FAR LESS THAN THE AMOUNT OF INTEREST PAID AND THEREFORE, THERE IS NO CAUSE FOR EXCLUSION AND HENCE THE EXCLU SION OF INTEREST INCOME AMOUNTING TO RS.1,01,75,905/ - AS MADE BY THE ASSESSING OFFICER IS REJECTED. THE APPELLANT SUCCEEDS IN THIS GROUND OF APPEAL IN THIS ISSUE. 15. WE HAVE HEARD RIVAL SUBMISSIONS. THERE IS NO DISPUTE THAT THIS VERY ISSUE AROSE IN AS SESSMENT YEAR 2000 - 01 AS WELL BEFORE THE TRIBUNAL. A CO - ORDINATE BENCH IN ITS ORDER DATED 05 - 12 - 2008 RESTORED THE SAME BACK TO THE ASSESSING OFFICER WITH A CLEAR - CUT DIRECTION THAT I.T.A NO S . 1441 & 1670 /AHD/06 & 343 /AHD/20 12 A.Y. 2002 - 03 PAGE NO ACIT VS. BILAG INDUSTRIS PVT. LTD. 11 IN CASE THE IMPUGNED INTEREST RECEIPT S ARE HELD TO BE BUSINESS INCOME NETT ING FORMULA IS TO BE ALLOWED AS PER CASE LAW CIT VS. SHRI RAM HONDA POWER EQUIPMENTS (2007) 289 ITR 475 (DEL) AS WELL AS TRIBUNAL S SPECIAL BENCH DECISION IN LALSONS ENTERPRISES VS. DCIT (2004) 82 TTJ 1048 (DEL) (SB). SRI PATEL FAILS T O POINT OUT ANY EXCE PTION IN THE IMPUGNED ASSESSMENT YEAR SINCE WE DO NOT SEE AN FINDING IN THE LOWER AUTHORITIES ORDER S ON THE CRUCIAL ASPECT AS TO WHETHER THE INTEREST INCOME IN QUESTIO N IS BUSINESS INCOME OR NOT. WE FOLLOW THE SAME COURSE OF ACTION AS IN THE EARLIER ASSE SSMENT YEAR . THE ASSESSING OFFICER SHALL DECIDE THIS ISSUE AFRESH. THE ASSESSEE SHALL BE AT LIBERTY TO RAISE ALL ITS PLEAS AS PER LAW. 16. WE COME TO FOREIGN EXCHANGE GAIN COMPONENT VIS - - VIS ASSESSEE S CLAIM SECTION 80HHC DEDUCTION. THERE IS NO QUAR REL THAT THE ASSESSEE HAS ALREADY SUCCEEDED BEFORE THIS TRIBUNAL IN ASSESSMENT YEAR 2000 - 01 (SUPRA) ON THE VERY ISSUE. HON BLE JURISDICTIONAL HIGH COURT HAS UPHELD THE SAME IN ITA 1373/2009 BY QUOTING ITS EARLIER ORDER IN CIT VS. PRIYANKA GEMS IN TAX APPE AL NO. 1468/2006. THE REVENUE FAILS TO HIGHLIGHT ANY DISTINCTION IN THE IMPUGNED EXCHANGE GAINS INVOLVED IN THESE TWO ASSESSMENT YEARS IN QUESTION. WE FOLLOW CONSISTENCY TO DECLINE THIS REVENUE S GROUND. 17. THE REVENUE S NEXT ARGUMENT ON THIS SECTION 80HHC DEDUCTION ISSUE IS QUA PROVISIONS WRITTEN BACK OF RS. 1,40,77,969/ - INCLUDING EXCISE DUTY AND DOUBTFUL DEBTS COMPO NENT AMOUNTING TO R S. 1,06,96,614/ - AND RS. 33,81,355/ - ; RESPECTIVELY . THE ASSESSING I.T.A NO S . 1441 & 1670 /AHD/06 & 343 /AHD/20 12 A.Y. 2002 - 03 PAGE NO ACIT VS. BILAG INDUSTRIS PVT. LTD. 12 OFFICER I NVOKED CASE LAW OF CIT VS. STER LING FOODS 237 ITR 579 (SC) FOR NOT TREATING THE SAME AS BUSINESS INCOME. 18. THE CIT(A) REVERSES ASSESSING OFFICER S FINDINGS TO HOLD THAT EXCISE DUTY IN CLOSING STOCK IS A NOTIONAL ENTRY REVERSED ON FIRST DAY OF THE SUBSEQUENT YEAR WITHOUT ANY IMPACT ON PROFITS . HE CON CLUDES THAT DOUBTFUL DEBTS IN QUESTION CONSTITUTES REVERSAL OF EXPENSES REDUCED FROM MANUFACTURING PROFITS EARLIER TO BE TREATED AS ELIGIBLE FOR SECTION 80HHC DEDUCTION. 19. HEARD RIVAL SUBMISSIONS. RELEVANT FINDINGS PERUSED. IT TRANSPIRES FR OM THE CASE FILE THAT NEITHER OF THE LOWER AUTHORITY DISCUSSES THE RELEVANT FINDINGS ABOUT THE ASSESSEE S ACTION IN ALLEGEDLY REVERSING NOTIONAL ENTRIES AS PER ICAI GUIDELINES AND CORRESPONDING IMPACT ON ITS PROFITS. SHRI PATEL TAKES US TO PAGE 90 OF THE PAPER BOOK. WE FIND THE SAME TO BE ASSESSEE S WRITTEN SUBMISSION S INSTEAD OF THE RELEVANT EVI DENCE. HE FILES BEFORE US A WRITTEN NOTE EXP LAINI NG REVERSAL IN QUESTION . WE OBSERVE THAT THIS DETAILED DOCUMENT FORMS ALL THE MORE REASON FOR US TO SEND THIS I SSUE BACK TO THE ASSESSING OFFICER FOR ADJUDICATION AFRESH SINCE THE SAME HAD NOT BEEN DEALT WITH IN THE FIRST ROUND. ORDERED ACCORDINGLY. 20. THE REVENUE S NEXT ARGUMENT IS ON THE ISSUE OF ALLOW ABILITY OF SECTION 80HHC DEDUCTION ON SCARP SALE OF RS. 38 ,56,085/ - . SHRI PATEL S CASE IS THAT HON BLE JURISDICTIONAL HIGH COURT IN ASSESSMENT YEAR 2000 - 01 HAS REJECTED SIMILAR REVENUE S ARGUMENT . IT FURTHER I.T.A NO S . 1441 & 1670 /AHD/06 & 343 /AHD/20 12 A.Y. 2002 - 03 PAGE NO ACIT VS. BILAG INDUSTRIS PVT. LTD. 13 TRANSPIRES FROM THE CASE FILE THAT HON BLE APEX COURT IN (20 14) 364 ITR 144 (SC) CIT VS. PU NJAB STAINLE SS STEEL INDUSTRIES INTERPRETS TURNOVER COMPONENT IN SECTION 80HHC TO MEAN ONLY AMOUNTS OF SALE PROCEED RECEIVED IN RESPECT OF GOODS IN WHICH THE CONCERNED ASSESSEE IS DEALING WITH. THE CIT(A) OBSERVES IN LOWER APPELLATE FINDINGS THAT ASSESSEE S SCRAP I S NATURAL OUTCOME OF ITS MANUFACTURING PROCESS. LEARNED DEPARTMENTAL REPRESENTATIVE POINTS OUT THAT THE ASSESSEE HAS NOT FILED ANY MATERIAL HIGHLIGHT ING THE IMPUGNED SCRAP TO HAVE BEEN GENERATED FROM EXPORT ACTIVITIES. HE DOES NOT POINT OUT ANY EXCEPTIO N TO EARLIER ASSESSMENT YEAR S FACT S VIS - A - VIS THOSE OF TH E IMPUGNED ASSESSMENT YEAR . N OR IS THERE ANY FINDING AT ASSESSING OFFICER S BEHEST THAT THE IMPUGNED SCRAP IS IN RESPECT OF THE GOODS IN WHICH THE ASSESSEE IS NOT DEALING WITH. WE FIND NO REASON TO DEVIATE FROM OUR EARLIER ORDER. THIS REVENUE S ARGUMENT IS REJECTED. WE PARTLY ACCEPT THE REVENUE S ARGUMENTS ON THIS SUBSTANTIVE GROUND QUA SECTION 80HHC DEDUCTION ISSUE INVOLVING FOUR COMPONENT S OF INTEREST, FOREIGN EXCHANGE GAINS, PROVISIONS WRITT EN BACK AND SCRAP SALE; FOR STATISTICAL PURPOSES AS INDICATED IN PRECEDING PARAGRAPHS. 21. THE REVENUE S NEXT SUBSTANTIVE ASSAILS THE CIT(A) S ORDER DELETING UPWARD TRANSFER PRICING ADJUSTMENT OF RS. 2, 96,10,000/ - MADE BY THE ASSESSING OFFICER. WE COME TO RELEVANT FACTS FIRST. THIS ASSESSEE IS A SUBSIDIARY OF M/S. AVENTIS CROPSCIENCE SA AND THAT BILAKHIAS HOLDING PVT. LTD TO THE EXTENT OF 51 AND 49% ; RESPECTIVELY. IT MANUFACTURES AND MARKETS TECHNICAL GRADE CHEMICAL PRODUCTS. IT HAS THE LARGEST SYNTH ETIC PYRETHROID COMPLEX IN THE WORLD. THE I.T.A NO S . 1441 & 1670 /AHD/06 & 343 /AHD/20 12 A.Y. 2002 - 03 PAGE NO ACIT VS. BILAG INDUSTRIS PVT. LTD. 14 ASSESSEE S RANGE OF TECHNICAL GRADE PRODUCTS INCLUDE ALLETHRIN, DELTAMETHRIN AND CYPERMETHRIN ETC. FALLS IN CATEGORY OF AGRO CHEMICAL/CROP PROTECTION PRODUCTS. IT TRANSPIRES THAT M/S AVENTIS C ROPSCIENCE SA FRANCE ACQUIRED 51 % EQUITY SHARE CAPITAL OF M/S MITSU INDUSTRIES VIDE AGREEMENT EXECUTED IN 1999. THE SAME RESULTED IN CHANGE OF ABOVE LATTER ENTITY TO M/S BILAG INDUSTRIES I.E. THE PRESENT ASSESSEE. 22. WE PROCEED TO DEAL WITH THE IMPUGNED TRANSFER PRICING IS SUE IN THIS FACTUAL BACKDROP. THE ASSESSEE S SA LES FIGURES READ RS. 4,09,76,18,294/ - . THIS INCLUDED ITS INTERNATIONAL TRANSACTION RECEIPTS WITH THREE OVERSEAS ASSOCIATE ENTERPRISES BASED IN FRANCE, BRAZIL AND CHINA INVOLVING GROSS SUM OF RS. 1,91,31,88, 555/ - INVOLVING PURCHASE OF RAW MATERIAL AS WELL AS SALE OF FINISHED GOODS. THE ASSESSEE EMPLOYED TRANSACTION NET MARGIN METHOD (TNMM) USING OPERATING MARGIN AS PROFIT LEVEL INDICATOR FOR BENCHMARKING THESE INTERNATIONAL TRANSACTIONS. THE ASSESSING OFFIC ER MADE SECTION 92CA(1) REFERENCE TO THE TRANSFER PRICING OFFICER (TPO HEREAFTER) TO DETERMINING ARMS LENGTH PRICE (ALP) OF ASSESSEE S SALES RECEIPTS. 23. THERE DOES NOT APPEAR ANY DISPUTE THAT THIS ASSESSEE AND ITS DOMESTIC ASSOCIATE ENTERPRISE M/S. AV ENTIS CROPSCIENCE INDIA BELONG TO M/S. AVENTIS CROPSCINCE GROUP BASED IN FRANCE. THE ASSESSEE SOLD 18 TONES I.E. 1 8,000 KILOGRAMS OF DELTAMETHRIN TO ITS FRENCH ASSOCIATE ENTERPRISE @ US $ 126.20 PER KG. THIS SALE OF CHEMICA LS WAS IN FURTHERANCE TO A SUPP L Y AGREEMENT DATED 03 - 07 - 1999 QUOTING I.T.A NO S . 1441 & 1670 /AHD/06 & 343 /AHD/20 12 A.Y. 2002 - 03 PAGE NO ACIT VS. BILAG INDUSTRIS PVT. LTD. 15 PRICE @ US $ 161.20 PER KG . T HE ASSESSEE HAD FURTHER SOLD B - CISTHEMIC ACID TO ITS DOMESTIC ASSOCIATE ENTERPRISE M/S AVENTIS CROPSCINCE INDIA AT AN AVERAGE PRICE OF US $ 164.25 PER KG CALCULATED IN TERMS OF RUPEE CURRE NCY. THE ASSESSING OFFICER SOUGHT TO VERIFY AS I F THE ABOVE STATED DELTAMETHRIN SALE EXECUTED IN MARCH, 2002 WAS AT ARM S LENGTH OR NOT. 24. THE ASSESSEE S REPLY CAME ON 05 - 11 - 2004. IT INTER ALIA PLEADED TO HAVE HONOURED ITS SUPPLY AGREEMENT QUOTING DELTAMETHRI N PRICE HEREINABOVE FOR 125 TO NES, CLAIMED TO HAVE SOLD 100.9 TONES DELTAMETHRIN @ 161.20 US $ PER KG FOLLOWED BY FURTHER SUPPLY OF 24.5 TONES OF B CISTHEMIC ACID TO ITS DOMESTIC ASSOCIATE ENTERPRISE AT AVERAGE PRICE OF 164.20 PER KG IN FURTHER ANCE TO THE VERY SUPPLY AGREEMENT. THE ASSESSEE SUBMITTED THAT IT HAD SUPPLIED 18 TON ES OF THE IMPUGNED DELTAMETHRIN AT COST + MARKUP OF 55% COMING TO AVERAGE PRICE OF 126.20 US $ PER KG. IT STRENGTHENED THE POINT JUSTIF YING SALE PRICE OF DELTAMETHRIN S UPPLY IN QUESTION TO BE AS PER ITS AGREEMENT STIPULATION S . 25. THE T RANSFER PRICING OFFICER ISSUED FURTHER SHOW CAUSE NOTICE AS TO WHETHER THE ASSESSEE S D OMESTIC SALE OF B CISTHEMIC ACID TO ITS DOMESTIC ENTERPRISE WAS COVERED UNDER THE SUPPLY AGREEME NT DATED 03 - 07 - 1999 OR NOT. THE ASSESSEE S REPLY CAME ON 25 - 11 - 2004. IT SOUGHT TO EXPLAIN THAT B CISTHEMIC ACID SALES FELL UNDER DELTAMETHRIN AND ITS INTERMEDIATES CATEGORY CLAUSE OF THE AGREEMENT. IT FURTHER STATED TO HAVE SUPPLIED THIS LATTER C HEMIC AL IN LIEU OF DELTAMETHRIN I.T.A NO S . 1441 & 1670 /AHD/06 & 343 /AHD/20 12 A.Y. 2002 - 03 PAGE NO ACIT VS. BILAG INDUSTRIS PVT. LTD. 16 AGREEMENT. THE TRANSFER PRICING OFFICER THEREAFTER SERVED SE CTION 133(6) NOTICES TO ASSESSE E S DOMESTIC ASSOCIATE ENTERPRISE M/S. AVENTIS CROPSCI E NCE INDIA RAISING SPECIFIC QUERY MAINLY AS TO WHETHER ITS B CISTHEMIC PURCHASES WE RE AS PER ITS OVERSEAS ASSOCIATE ENTERPRISE BEHEST OR NOT. THIS ENTITY FILED ITS REPLY ON 24 - 02 - 2005. IT STATED TO HAVE PURCHASED THE B CISTHEMIC ACID IN QUESTION FROM THE ASSESSEE SIN CE THE SAME SATISFIED ITS QUAN T IT ATIVE AND QUALIT Y REQUIREMENT S AND A LSO IN VIEW OF THE F ACT THAT EARLIER IMPORT SOURCE PLANT WAS CLOSING DOWN. THIS ENTITY NOWHERE STATED THAT ITS B CISTHEMIC PURCHASES WERE IN LIEU OF DELTAMETHRIN SUPPLY TO BE MADE BY THE ASSESSEE TO ITS OVERSEAS ASSOCIATE ENTERPRISE IN QUESTION. 26. THE TPO TOOK NOTE OF ALL THESE DEVELOPMENT S TO OBSERVE THAT ASSESSEE S SALES TO ITS DOMESTIC ASSOCIATE ENTERPRISE DI D NOT FORM PART OF DELTAMETHRIN SUPPLY AGREEMENT DATED 03 - 07 - 1999 EXECUTED WITH THE OVERSEA S ASSOCIATE ENTERPRISE. HE REVERTED BACK TO ASS ESSEE BY WAY OF A LETTER DATED 27 - 01 - 2005 SEEKING TO KNOW AS TO WHETHER IT HAD SUPPLIED B CISTHEMIC ACID IN LIEU OF DELTAMETHRIN OR NOT. THE ASSESSEE S REPLY CAME ON 07 - 02 - 2005 INTER ALIA PLACING ON RECORD MAIN AND SUPPLEMENTARY AGREEMENTS DATED 03 - 07 - 199 9 AND 04 - 09 - 2000; RESPECTIVELY. THE LATTER MODIFIED THE FORME R AGREEMENT TO THE EFFECT THAT THE ASSESSEE HAD TO SELL TO AND SUPPLY AVENTIS AND /OR ITS DESIGN WITH THE PRODUCT . THIS ALSO ACCOMPANIES ASSESSEE S OVERSEAS ASSOCIATE ENTERPRISE CONFIRMATION DATED 07 - 02 - 2005 THAT THE DOMESTIC ASSOCIATE ENTERPRISE WAS ITS DESIGNEE. THE TPO REJECTED I.T.A NO S . 1441 & 1670 /AHD/06 & 343 /AHD/20 12 A.Y. 2002 - 03 PAGE NO ACIT VS. BILAG INDUSTRIS PVT. LTD. 17 THE SAME FOR WANT OF CONTEMPORARY EVIDENCE IN SUPPORT OF DESIGNEE PLEA AFORESAID ALONG WITH AUTHORIZATION TO ASSESSEE FOR EXECUTING SUPPLY AGREEMENT IN QUESTION. HE ACCORDINGLY DECLINED THE CORRESPONDING PLEA. HE FURTHER TOOK NOTE OF DOMESTIC ASSOCIATE ENTERPRISE REPLY TO HAVE PURCHASED B CISTHEMIC ACID MEETING ALL REQUIRED PARAMETERS. THE TPO THEREAFTER PREPARED A CHART OF ASSESSEE S DOMESTIC B CISTHMIC SUPPLY F ROM APRIL, 2001 TO MARCH, 2002 TO OBSERVE THAT THE DOMESTIC ASSOCIATE ENTERPRISE HAD BEEN REGULARLY PURCHASING SIMILAR SUPPLY. HE FURTHER OBSERVED THAT THIS DOMESTIC ENTITY HAD PAID MUCH HIGHER PRICE THAN THE OVERSEAS E NTITY. HE QUOTED ASSESSEE S FAIL URE IN PRODUCING PURCHASE ORDER FROM ITS OVERSEA ASSOCIATE ENTERPRISE QUA DOMESTIC SUPPLY HEREINABOVE . ALL THIS MADE HIM TO CONCLUDE THAT THE ASSESSEE HAD MADE EXPORT SALE I N QUESTION @ 126.20 US $ PER KG WHEREAS ITS DOMESTIC PRICES WERE MUCH HIGHER (SUPRA). HE WAS FURTHER OF THE OPINION THAT ALL THIS LED TO SHIFTING OF PROFIT S AT ASSESSEE S BEHEST TO ITS OVERSEAS ASSOCIATE ENTERPRISE. WE NOTE FROM PAGE 292 OF THE PAPER BOOK THAT ASSESSEE ITSELF IN ITS LETTER DATED 08 - 10 - 2004 MADE IT CLEAR THAT ARMS LENGTH PRICE OF ITS DELTA METHRIN WAS US $ 161.20 PER KG INSTEAD OF THAT CHARGED @ 126.20 US $ PER KG. ALL THIS RESULTED IN THE IMPUGNED UPWARD ADJUSTMENT OF US $ 6,30,000/ - COMPUTED IN RUPEE TERMS COMING TO RS. 2,96,10,000/ - BEING PROPOSED IN TPO S ORDER DATED 10 - 03 - 2005. THE ASSESSING OFFICER ACCORDINGLY FRAMED CONSEQUENTIAL ASSESSMENT . I.T.A NO S . 1441 & 1670 /AHD/06 & 343 /AHD/20 12 A.Y. 2002 - 03 PAGE NO ACIT VS. BILAG INDUSTRIS PVT. LTD. 18 27. WE COME TO THE LOWER APPELLATE PROCEEDINGS NOW. THE CIT(A) DELETES THE IMPUGNED UPWARD TRANSFER PRICING ADDITION AS FOLLOWS: - 16.6 I HAVE PERUSED THE REMAND REPORT RECEIV ED BY THE TRANSFER PRICING OFFICER. THE TRANSFER PRICING OFFICER HAS NOT ADVERSELY COMMENTED UPON THE CONTENTIONS OF THE A.R. OF THE APPELLANT COMPANY THAT THERE IS NO LOSS OF REVENUE TO THE GOVERNMENT OF INDIA. 16.7 ON THE OTHER HAND THE A.R. OF THE APPE LLANT COMPANY HAD SUBMITTED THAT THE TRANSACTION BETWEEN THE INDIAN AE AND THE APPELLANT COMPANY IS NOT AN INTERNATIONAL TRANSACTION, BUT ONLY A DOMESTIC TRANSACTION. THE PURCHASE PRICE PAID BY THE AE WILL REDUCE THE PROFITS OF THE INDIAN AE AND AT THE SAM E TIME WILL INCREASE THE PROFITS OF THE APPELLANT COMPANY TO THE SAME EXTENT. THE A.R. OF THE APPELLANT COMPANY ALSO SUBMITTED BEFORE ME THAT THE INDIAN AE WOULD NOT HAVE MANUFACTURED DELTAMETHRIN IF THE B - CISTHEMIC ACID WAS NOT PURCHASED FROM THE APPELLAN T COMPANY. THIS WOULD HAVE RESULTED IN LOWER PRODUCTION, LOWER PROFITS AND LOWER TAX PAYMENTS. THE TRANSFER PRICING OFFICER HAS NOT LOOKED INTO THIS ASPECT OF THE CASE IN ITS PROPER PERSPECTIVE. 16.8 THE APPELLANT COMPANY IS FURTHER FORTIFIED OWING TO THE FACT THAT SALES TO ITS PARENT COMPANY ABROAD WOULD HAVE RESULTED IN MORE DEDUCTION U/S. 80HHC OF THE ACT. THE SALES TO THE INDIAN AE HAS NOT BEEN INCLUDED IN THE TERM EXPORT TURNOVER FOR THE PURPOSE OF CLAIMING DEDUCTION U/S. 80HHC BY THE APPELLANT COMPAN Y. IN THIS MANNER THE DEDUCTION U/S. 80HHC AVAILABLE TO THE APPELLANT COMPANY IS LOWER \ WHEN COMPARED TO THE POSSIBLE SCENARIO ENVISAGED BY THE TRANSFER PRICING OFFICER W HEREIN THE PRODUCT SHOULD HAVE BEEN SOLD TO THE FOREIGN AE AS PER THE ORIGINAL SU PPLY AGREEMENT. 16.9 AFTER GOING THROUGH THE ORDER PASSED BY THE TRANSFER PRICING OFFICER, IT CAN BE FOUND THAT AFTER CONSIDERATION OF ALL THE FACTS OF THE CASE THE TRANSFER PRICING OFFICER HAS MADE TH E UPWARD ADJUSTMENT TO THE ARMS LENGTH PRICE OF SUPPLY O F DELTAMETHRIN TO AVENTIS CROPSCIENCE SA ON THE CONSIDERATION THAT IT HAS RESULTED IN LESSER TAX PAYMENT TO THE GOVERNMENT OF INDIA ON ACCOUNT OF HIGHER PURCHASE PRICE PAID BY THE INDIAN AE OF THE APPELLANT COMPANY. THE PROFIT OF THE APPELLANT COMPANY HAS INCREASED TO THE EXTENT OF EXCESSIVE PRICE CHARGED TO THE INDIAN AE, WHOSE PROFIT HAS I.T.A NO S . 1441 & 1670 /AHD/06 & 343 /AHD/20 12 A.Y. 2002 - 03 PAGE NO ACIT VS. BILAG INDUSTRIS PVT. LTD. 19 CORRESPONDINGLY REDUCED. HENCE THERE HAS BEEN NO EFFECT ON TAX REVENUE TO THE GOVERNMENT OF INDIA. 16.10 THE A.R. OF THE APPELLANT COMPANY FURTHER ARGUED THAT IF AT AL L THERE IS A LOSS OF TAX REVENUE TO THE GOVERNMENT OF INDIA, DUE TO THE PRICE ADOPTED BY THE APPELLANT COMPANY FOR THE TRANSACTION, THE ISSUE OF UPWARD ADJUSTMENT ON SUCH GROUND SHOULD HAVE BEEN CONSIDERED IN THE ASSESSMENT OF THE INDIAN AE AND NOT IN THE CASE OF THE APPELLANT COMPANY. 16.11 THE A.R. OF THE APPELLANT COMPANY REFERRED TO THE WORKING CALCULATION ON THE EFFECT OF THE TRANSACTION, IF THE TRANSACTION HAD BEEN UNDERTAKEN IN THE MANNER ENVISAGED BY THE TRANSFER PRICING OFFICER. THE A.R. POINTED OUT THAT SINCE THE ASSOCIATED ENTERPRISE IN INDIA AND THE APPELLANT COMPANY ARE ASSESSED TO TAX AT THE SAME MAXIMUM MARGIN RATE APPLICABLE TO THE COMPANY A CHANGE IN THE PRICE OF GOODS SOLD BY THE APPELLANT COMPANY TO ITS INDIAN AE WOULD NOT AFFECT THE TA X REVENUE OF GOVERNMENT OF INDIA TAKEN AS A WHOLE. THIS IS BECAUSE THE TAX SAVING TO ONE COMPANY WILL RESU LT IN TAX GAIN TO THE OTHER COM PANY ON EQUAL AMOUNTS. ON THE OTHER HAND IF THE APPELLANT COMPANY HAD SOLD THE SAME GOODS TO ITS AE ABROAD AT THE HIGHE R RATE, IT COULD HAVE GAINED A TOTAL AMOUNT OF RS. 48.72 LACS AS PER THE DETAILED WORKING FURNISHED BY THE A.R. OF THE APPELLANT COMPANY. IN THIS MANNER THE A.R. OF THE APPELLANT COMPANY CONCLUDED THAT THE TRANSACTION AS UNDERTAKEN BY THE APPELLANT COMPANY AND ITS ASSOCIATED ENTERPRISE HAS NOT RESULTED IN A TAX BENEFIT TO THE MULTINATIONAL GROUP AS A WHOLE AS HELD BY THE TRANSFER PRICING OFFICER. 16.12 I HAVE CONSIDERED THE FACTS OF THE CASE AND THE CONTENTIONS OF THE PARTIES TO THE APPEAL. ON A CAREFUL CONSIDERATION OF THE FACTUAL MATRIX OF THE CASE IT HAS BEEN SEEN THAT THE HIGHER SELLING PRICE ADOPTED BY THE APPELLANT COMPANY FOR SUPPLY OF MATERIAL TO THE INDIAN AE HAS NOT RESULTED IN SHIFTING OF PROFITS ABROAD OR IN THE REDUCTION OF TAX REVENUE TO TH E GOVERNMENT OF INDIA. 28. WE HAVE HEARD BOTH THE SIDES. LEARNED REPRESENTATIVES REITERATE THEIR RESPECTIVE PLEADINGS IN SUPPORT OF AND AGAINST THE IMPUGNED TRANSFER PRICING ADJUSTMENT. THERE IS HARDLY ANY DISPUTE I.T.A NO S . 1441 & 1670 /AHD/06 & 343 /AHD/20 12 A.Y. 2002 - 03 PAGE NO ACIT VS. BILAG INDUSTRIS PVT. LTD. 20 THAT THE ASSESSEE AGREED TO SUPPLY DE LTAMETRIN AND ITS INTERMEDIATE CHEMICAL SOLUTIONS TO THE ABOVE STATED ASSOCIATE ENTERPRISE OR ITS DESIGNEE. THIS LIS HOWEVER IS CONFINED TO ARMS LENGTH PRICE DETERMINATION OF 18 TONES SUPPLIED TO THE FOREIGN ENTITY . THE ASSESSEE CHARGES @ US $ 126.2 PER KG BY FOLLOWING COST + 55% MARKUP. ITS AGREEMENT QUOTED DELTAMETRIN PRICE TO BE @ 161.20 US $ PER KG. THE ASSESSEE ALSO ADMITTED THE LATTER RATE TO BE A T ARMS LENGTH PRICE AS ALREADY INDICATED IN PAGE 292 OF THE PAPER BOOK. THIS MADE THE TPO TO INTER A LIA TO REJECT ASSESSEE S OTHER CONTENTIONS FOR MAKING IMPUGNED UPWARD TRANSFER PRICING ADJUSTMENT OF RS. 2,96,10,000/ - SUBJECT MATTER OF THE INSTANT LITIGATION. 29. WE DEEM IT APPROPRIATE AT TH IS STAGE TO DEAL WITH CHAPTER X OF THE ACT CONTAINING TRAN SFER PRICING PROVISIONS RELATING TO AVOIDANCE OF TAX INTRODUCED BY THE FINANCE ACT, 2001 W.E.F . 01 - 04 - 2002. THE IMPUGNED ASSESSMENT YEAR BEFORE US IS THE FIRST FULL FLEDGED YEAR OF BUSINESS THEREAFTER. SECTION 92(1) MANDATES ANY INCOME ARISING FROM AN I NTERNATIONAL TRANSACTION TO BE COMPUTED HAVING REGARD TO ARMS LENGTH PRICE. THE SAME ADMITTEDLY APPLIES IN CASE OF INTERNATIONAL TRANSACTIONS; AS IT THEN W AS, BETWEEN TWO ASSOCIATE ENTERPRISE S ILLUSTRATED IN SECTION 92A OF THE ACT. WE REPEAT THAT TH IS AS SESSEE AND ITS OVERSEAS ASSOCIATE ENTERPRISE ADMITTEDLY FALL IN THIS CATEGORY. THERE IS FURTHER NO QUARREL ABOUT ITS DELTAMETHRIN SALE TO BE IN THE NATURE OF INTERNATIONAL TRANSACTIONS U/S. 92B OF THE ACT. WE NOTICE THAT SECTION 92C(1) OF THE ACT POSTUL ATES ARMS LENGTH PRICE COMPUTATION BY APPLYING SIX METHODS NAMELY; COMPARABLE UN - I.T.A NO S . 1441 & 1670 /AHD/06 & 343 /AHD/20 12 A.Y. 2002 - 03 PAGE NO ACIT VS. BILAG INDUSTRIS PVT. LTD. 21 CONTROLLED PRICE METHOD (CUP), RE - SALE PRICE METHOD (RPM), COST + METHOD (CPM), PROFIT SPLIT METHOD (PSM), TRANSACTIONAL NET MARGIN METHOD (TNMM) AND THE RESIDUARY ONE SUCH OT HER METHODS AS MAY BE PRESCRIBED BY THE CENTRAL BOARD OF DIRECT TAXES. AN ASSESSING OFFICER S JURISDICTIONAL FLOWS THEREAFTER U/S. 92CA OF THE ACT TO MAKE REFERENCE TO THE TPO FOR ASCERTAINING ARMS LENGTH PRICE OF THE RELEVANT INTERNATIONAL TRANSACTIONS. 30. WE NOW COME TO THE CORRESPONDING INCOME TAX RULES. RULE 10A DEFINES VARIOUS EXPRESSIONS USED IN ALL CONTEMPORARY PROVISIONS. SUB - RULE (A); AS IT WAS IN THE IMPUGNED ASSESSMENT YEAR DEFINE S AN UN - CONTROLLED TRANSACTION TO MEAN A TRANSACTION OTHER TH AN THAT BETWEEN TWO ASSOCIATE ENTERPRISES; WHETHER RESIDENT OR NON - RESIDENT. WE KEEP IN MIND THE SAME AND PROCEED FURTHER TO RULE 10B PRESCRIBING ARMS LENGTH PRICE FOR THE PURPOSE OF SECTION 92C(2) OF THE ACT BY USING ANY OF THE SIX METHOD AS THE MOST APP ROPRIATE METHOD AS ENUMERATED IN CLAUSE (A) TO (F); RESPECTIVELY IN THE GIVEN SEQUENCE IN CHAPTER 10 OF THE ACT. THE LAST CLAUSE (F) RELEVANT FOR ANY OTHER APPROPRIATE METHOD HEREINABOVE CONTAINS A SPECIFIC RULE 10AB. THIS IS ADMITTEDLY NOT GERMANE TO TH E ISSUE BEFORE US. WE FIND THAT ONLY CLAUSE (A) TO (E) HEREINABOVE PERTAINING TO CUP AND TNMM METHODS ARE RELEVANT FOR THE INSTANT ADJUDICATION. WE FIND IT A FIT CASE TO REPEAT THAT THE ASSESSEE HAD EMPLOYED TNMM METHOD FOR CHARGING @ COST + 55% MARK UP I.E. AN INDIRECT METHOD FOR DECLARING ITS ALP . THE TPO ADOPTED ITS DIRECT SALE PRICE @ 161.2 US $ PER KG FOR MAKING THE IMPUGNED UPWARD ADJUSTMENT. WE DO NOT FIND A SINGLE I.T.A NO S . 1441 & 1670 /AHD/06 & 343 /AHD/20 12 A.Y. 2002 - 03 PAGE NO ACIT VS. BILAG INDUSTRIS PVT. LTD. 22 OBSERVATION EVEN IN HIS ORDER REJECTING ASSESSEE S TNMM METHOD BEFORE ADOPTING THE AGREEMENT PRICE IN QUESTION UNDER THE CUP METHOD. 31. WE STAY BACK ON RULE 10B(1)(A) AT THIS STAGE. IT IS EVIDENT THAT THIS CLAUSE PRESCR IBES CUP METHODS APPLICATION TO DETERMINE CONTROLLED PRICE OF AN INTERNATIONAL TRANSACTION BY THE PRICE CHARG ED OR PAID FOR PROPERTY TRANSFER OR SERVICES PROVIDED IN A COMPARABLE UN - CONTROLLED TRANSACTION; OR A NUMBER OF TRANSACTION, AS IDENTIFIED. THE SAME FORMS A PRICE CHARGED OR PAID IN RELATION TO PROPERTY OR SERVICES AS THE BASIS OF ALP TRANSACTION. WE REF ERRED TO THE ABOVE STATED RULE 10A(A) TO OBSERVE HERE THAT THE EXPRESSION COMP A RABLE UN - CONTROLLED TRANSACTION SIGNIFIES A TRANSACTION BETWEEN ENTERPRISES OTHER THAN ASSOCIATE ONES; WHETHER RESIDENT OR NON - RESIDENT. IT HAS ALREADY COME ON RECORD THAT TH E TPO IN THE INSTANT CASE RELIED UPON ASSESSEE S AGREED PRICE RATE OF US $ 161.20 PER KG FOR DELTAMETHRIN SUPPLY IN ORDER TO MAKE THE IMPUGNED TRANSFER PRICING ADJUSTMENT. WE REPLY ON ABOVE STATED STATUTORY PROVISION IN THE ACT AS WELL AS RULE TO OB SER VE THAT THE SAME IS RATHER IN THE NATURE OF A COMPARABLE CONTROLLED TRANSACTION BETWEEN TWO ASSOCIATE ENTERPRISE S NEGATING THE BASIC FUNDAMENTAL CONDITION OF CUP METHODS APPLICATION. 32. WE PROCEED FURTHER TO OBSERVE HERE THAT VARIOUS CO - ORDINATE BENCH ES OF THIS TRIBUNAL HAVE ALREADY ADJUDICATED THIS ISSUE AS TO WHETHER AN ACCEPTED NET PROFIT MARGIN FROM A TRANSACTION WITH AN ASSOCIATE ENTERPRISE CAN BE TAKEN AS COMPARABLE OR NOT BEING AN I.T.A NO S . 1441 & 1670 /AHD/06 & 343 /AHD/20 12 A.Y. 2002 - 03 PAGE NO ACIT VS. BILAG INDUSTRIS PVT. LTD. 23 INTERNAL COMPA RA BLE FOR DETERMINING ARMS LENGTH PRICE. TWO TRIBU NALS DECISION S REPORTED AS (2012) 24 TAXMANN.COM 28 (MUM) (TM) TECHNIMONT ICB P VT. LTD. VS. ACIT AS REITERATED IN ITA 2587/AHD2012 PINO BISAZZA GLASS PVT. LTD VS. ACIT ALREADY DECIDE THIS ISSUE IN ASSESSEE S FAVOUR TO CONCLUDE THAT SUCH A COMPARABLE IS NOT TO BE ADOPTED AS COMPARABLE UN - CONTROLLED TRANS ACTION PRICE IN QUESTION . 33. WE HAVE ALREADY NOTICED THAT A COMPARABLE UN - CONTROLLED TRANSACTION INSTEAD OF A CONTROLLED FORMS SINE QUA NON FOR DETERMINING ALP OF AN INTERNATIONAL TRANSACTION BETWEEN TWO A SSOCIATE ENTERPRISES LEAVING BEHIND NO SCOPE OF APPLICATION OF ESTOPPEL PRINCIPLE OR ACCEPTANCE OF AGREED PRICES IN ABSENCE OF AN COMPARABLE UN - CONTROLLED TRANSACTION . THE REVENUE S VEHEMENT CONTENTIONS ADVANCED IN THE COURSE OF HEARING SEEKING TO INVOKE ESTOP PEL PRINCIPLE FAIL S TO CONVINCE US. 34. WE FURTHER DEEM IT APPROPRIATE TO OBSERVE AT THIS STAGE THAT THE IMPUGNED ASSESSMENT YEAR 2002 - 03 IS THE FIRST FULL - FLEDGED BUSINESS OF YEAR AFTER INTRODUCTION OF CHAPTER X TRANSFER PRICING PROVISION INCORPO RAT ED IN THE ACT. THE TPO S ORDER DATED 10 - 03 - 20 05 DOES NOT EVEN ISSUE A SHOW C AUSE NOTICE DISAGREEING WITH ASSESSEE S TNMM METHOD. HE HAS RATHER PROCEEDED TO ADOPT CUP METHOD(SUPRA) AGAIN BY IGNORING TH E FUNDAMENTAL CONDITION OF APPLYING THE SAME. SAME IS THE CASE WITH LEARNED CIT(A) WHO HAS PROCEEDED ON REVENUE NEUTRAL IMPLICATION WITHOUT EVEN TAKING INTO SECTION 92(1) R.W.S. 92C AND 92C(4) PROVISO ALONG WITH RULES DISCUSSED HEREINABOVE AT LENGTH. I.T.A NO S . 1441 & 1670 /AHD/06 & 343 /AHD/20 12 A.Y. 2002 - 03 PAGE NO ACIT VS. BILAG INDUSTRIS PVT. LTD. 24 THERE IS HARDLY ANY DISPUTE THAT THIS CHAPTER AND THE RULES NOTIFIED THEREUNDER PRESCRIBE THAT AN ARMS LENGTH PRICE IS NOT THE PRICE AN ASSESSEE IS CHARGING OR PAYING FOR BEING A PARTY IN THE INTERNATIONAL TRANSACTION IN QUESTION BUT IT IS THE PRICE I.E. TO BE PAID OR CHARGED IN SUCH A COMPARABLE CONTROLLED T RANSACTION IN COMPARISON TO A COMPARABLE UN - CONTROLLED TRANSACTION . WE REPEAT THAT THE TPO HAS NOT KEPT IN MIND THIS FINE DISTINCTION . WE ACCORDINGLY REVERSE HIS ACTION ON THIS SOLE LEGAL PRINCIPLE. NEEDLESS TO SAY, THE CIT(A) HAS ALREADY DELETED THE IM PUGNED ADJUSTMENT. WE FIND NO REASON TO INTERFERE IN THE LOWER APPELLATE ORDER ALBEIT ON A DIFFERENT SCORE AS ENUMERATED HEREINABOVE. THIS REVENUE S GROUND IS DECLINED ACCORDINGLY. 35 . THE REVENUE S NEXT SUBSTAN T I VE GROUND CHALLENGES CIT(A) S ORDER HOLDING T HAT EXCISE DUTY AND SALES TAX ARE NOT TO BE INCLUDED IN TOTAL TURNOVER FOR COMPUTING SECTION 80HHC DEDUCTION. THIS ISSUE ADMITTEDLY EMANATED FROM CIT' S SECTION 263 ORDER DATED 22 - 12 - 2005 AND ASSESSING OFFICER S CONSEQUENTIAL ASSESSMENT FRAMED THEREAFTER. WE FIND THAT A CO - ORDINATE BENCH IN ITA 452/AHD/2006 DECIDED ON 08 - 05 - 2009 HAS REVERSED CIT S ORDER THEREBY RESTORING THE IM PUGNED REGULAR ASSESSMENT . WE HOLD IN THESE FACTS THAT THIS REVENUE S GROUND HAS NO LEGS TO STAND. THE SAME IS ACCORDINGLY REJECT ED. REVENUE S APPEAL ITA 1441/AHD/2006 IS PARTLY ACCEPTED FOR STATISTICAL PURPOSES . I.T.A NO S . 1441 & 1670 /AHD/06 & 343 /AHD/20 12 A.Y. 2002 - 03 PAGE NO ACIT VS. BILAG INDUSTRIS PVT. LTD. 25 36 . WE COME TO ASSESSEE S CROSS APPEAL ITA 1670/AHD/2006 RAISING TWO SUBSTANTIVE GROUNDS IN CHALLENGING THE LOWER APPELLATE ORDER NOT CONSIDERING INTEREST AMOUNT OF RS . 1,01,75,905/ - AS BUSINESS INCOME FOR SECTION 80HHC DEDUCTION AND FURTHER UPHOLDING DISALLOWANCE ON TRADE ITEMS OF RS. 13,67,412/ - . WE NOTICE THAT THE FORMER GROUND IS NO MORE RES INTEGRA IN VIEW OF OUR CORRESPONDING FINDING IN REVENUE S SUBSTAN TIVE GRO UND NO. 6 ON THE VERY ISSUE. THE SAME IS ACCORDINGLY REMITTED BACK TO THE ASSESSING OFFICER. 37 . WE COME TO ASSESSEE S LATTER GROUND CHALLENGING TRADED ITEMS LOSS DISALLOWANCE OF RS. 13,67,412/ - . THE SAME AROSE FROM CIT S ORDER INVOKING REVISION JURISD ICTION AND ASSESSING OFFICER S CONSEQUENT IAL ASSESSMENT. WE NOTICE THAT ASSESSEE S INSTANT CROSS APPEAL IS AGAINST CIT S ORDER RELATING SECTION 143(3) PROCEEDINGS ONLY. WE CONCLUDE THAT THIS SUBSTANTIVE GROUND IS NOT MAINTAINABLE IN ASSESSEE S INSTANT AP PEAL. THE SAME IS REJECTED. ITA 1670/AHD/2006 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 38 . THIS LEAVES US WITH ASSESSEE S APPEAL ITA 343/AHD/2012 RAISING SOLE SUBSTANTIVE ISSUE OF DISALLOWANCE ON TRADED ITEMS OF RS. 13,67,412/ - . BOTH THE LEARNED R EPRESENTATIVES POINT OUT AT THE OUTSET THAT THE SAME FLOWS FRO M CIT S SECTION 263 ORDER AND CONSEQUENTIAL ASSESSMENT FRAMED THERETO. IT HAS ALREADY COME ON RECORD THAT THIS TRIBUNAL HAS REVERSED ABOVE STATED REVISION ORDER ITSELF (SUPRA). WE CONCLUDE IN THIS FACTUAL BACKDROP THAT THE IMPUGNED DISALLOWANCE OF I.T.A NO S . 1441 & 1670 /AHD/06 & 343 /AHD/20 12 A.Y. 2002 - 03 PAGE NO ACIT VS. BILAG INDUSTRIS PVT. LTD. 26 LOSS DESERVES TO BE DELETE D ON THIS SCORE ALONE . THE SAME STANDS DELETED . ITA 343/AHD/2012 IS ACCEPTED. 39 . THE REVENUE S APPEAL ITA 1441/AHD/2006 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES . ASS ESSEE S APPEAL S ITA 1670/AHD/2006 AND 343/AHD/2012 ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES AND ALLOWED; RESPECTIVELY. ORDER PR ONOUNCED IN THE OPEN C OURT ON 05 - 08 - 201 6 SD/ - SD/ - ( PRAMOD KUMAR ) ( S. S. GODARA ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 05 /08 /2016 AK / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,