GOLDMAN SACHS (INDIA) SECURITIES P. LTD, MUMBAI V. DCIT RG 3(1), MUMBAI

ITA 222/MUM/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2105 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: K
• Next Hearing Date: 05-05-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 08-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N K CHAND
• Assessee Lawyers: P J PARDIWALA
• Keywords: Transfer pricing; Business expenditure; Opportunity of being heard; Question of law; Wholly owned subsidiary; Non compliance; Revised return
• Section: 143(3); 37(1); 37

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL K BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI N.K . BILLAIYA, ACCOUNTANT MEMBER / I .T A NO. 222/MUM/2014 ( / ASSESSMENT YEAR : 2009 - 10 M/S. GOLDMAN SACHS (INDIA) SECURITIES PVT. LTD., 951 A, RATIONAL HOUSE, APPASAHEB MARATHE MARG, PRABHADEVI, MUMBAI - 400 025 / VS. THE DCIT, RANGE 3(1), MUMBAI ./ ./ PAN/GIR NO. : AAFCA 6819F ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY: SHRI P.J. PARDIWALA / RESPONDENT BY: SHRI N.K. CHAND / DATE OF HEARING : 09.11 . 2015 / DATE OF PRONOUNCEMENT : 30 .11 .2015 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST THE ASSESSMENT ORDER D ATED 2 7 . 1 1 .201 3 MADE U/S. 143(3) R.W. SECTION 144C(13 OF THE ACT. 2. THE ASSESSEE WAS INCORPORATED IN MARCH 2006 FOR THE PURPOSE OF INTER ALIA UNDERTAKING SECURITIES BROKING, INVESTMENT BANKING, UNDERWRITING AND OTHER FINANCIAL SERVICES BUSINESS IN INDIA. THE ITA. NO. 222/M/2014 2 ASSESSEE IS A WHOLLY OWNED SUBSIDIARY OF GOLDMAN SACHS(MAURITIU S) LLC. 3. THE ASSESSEE FILED ITS RETURN OF INCOME ON 30.9.2009 DECLARING TOTAL INCOME AT RS. 230,09,17,720/ - . SUBSEQUENTLY, THE ASSESSEE FILED A REVISED RETURN ON 31.3.2011 DECLARING THE SAME TOTAL INCOME WHILE CLAIMING ADDITIONAL CLAIM OF TDS. THE RET URN WAS SELECTED FOR SCRUTINY ASSESSMENT AND ACCORDINGLY STATUTORY NOTICES WERE ISSUED AND SERVED UPON THE ASSESSEE. THE FOLLOWING TRANSACTIONS REPORTED BY THE ASSESSEE IN FORM NO. 3CEB WERE NOTICED : S.NO. PARTICULARS AMOUNT METHOD 1. PROVISION OF INVESTMENT BANKING SERVICES RS. 23,975,939 (RECEIPT SERVICES) RS. 197,487,761 (PAYMENT FOR SERVICES) TNMM 2. INVESTMENT ADVISORY SERVICES IN RESPECT OF LISTED INDIAN EQUITIES RS. 113,802,147 TNMM 3. INVESTMENT ADVISORY AND SUPPORT SERVICE S IN RESPECT OF STRATEGIC INVESTMENTS INTO INDIA. RS. 463,736,750 TNMM 4. SECURITIES BROKING SERVICES IN RESPECT OF SECURITIES TRADED IN THE CASH EQUITY SEGMENT ON NSE AND BSE RS. 741,198,967 CUP 5. SECURITIES BROKING AND CLEARING SEVICES IN RESPECT OF CONTRACTS ENTERED IN THE DERIVATIVES SEGMENT ON NSE AND BSE RS. 365,367,953 CUP 6. PROVISION OF INFORMATION TECHNOLOGY ENABLED SERVICES RS. 435,013,724 TNMM 7. REIMBURSEMENT/RECOVERY OF EXPENSES RS. 432,490,891 NA 8. ALLOCATION OF EXPENSES RS. 87,487,835 NA ITA. NO. 222/M/2014 3 3.1. ACCORDINGLY, A REFERENCE U/S. 92C(1) OF THE ACT WAS MADE TO THE TPO AND TP ADJUSTMENT PROCEEDINGS STARTED. DURING THE COURSE OF THE TRANSFER PRICING ASSESSMENT PROCEEDINGS, THE TPO FOUND THAT THE ASSESSEE IS INTO INVESTMENT ADVISOR Y SERVICES FOR INDIAN EQUITIES AND STRATEGIC INVESTMENTS IN INDIA. THE TPO FURTHER NOTICED THAT THE ASSESSEE HAS SEGMENTED IN THE INVESTMENT ADVISORY SERVICES IN INDIAN EQUITIES AND FOR THE STRATEGIC INVESTMENT IN INDIA. THE TPO FOUND THAT THE ASSESSEE H AS RESORTED TO INDEPENDENT BENCHMARKING IN RESPECT OF BOTH SERVICES PROVIDED BY IT. THE ASSESSEE WAS ASKED TO DEMONSTRATE THE DIFFERENCE BETWEEN THESE TWO SERVICES. THE ASSESSEE FILED A DETAILED REPLY DATED 27.12.2012 EXPLAINING THE DIFFERENCE BETWEEN THE TWO DIFFERENT SERVICES. AFTER CAREFULLY PERUS ING THE DETAILS, THE TPO OBSERVED THERE IS HARDLY ANY DIFFERENCE BETWEEN THESE TWO SERVICES EXCEPT FOR THE FACT THAT THE ADVISORY SERVICES IN RESPECT OF LISTED SECURITIES IS MORE OF A STATIONERY ACTIVITY WH EREIN THE SUB ADVISORS NEED NOT RESORT TO ACTIVITIES SUCH AS DUE DILIGENCE OF INVESTMENT OPPORTUNITIES , INTERACTION WITH THE PORTFOLIO COMPAN IES , FORMULATION AND EVALUATION OF STRATEG IES FOR INVESTMENT, SUPPORT IN CONNECTION WITH THE NEGOTIATIONS AND THE OTHER LOGISTICS RELATED SUPPORT. 3.2. THE TPO FURTHER OBSERVED THAT THE BASIC DIFFERENCE BETWEEN THE TWO ACTIVITIES IS NOT RELATED TO THE FUNCTIONAL ASPECT OF THE ADVISORY SERVICES BEING PROVIDED BUT THE MANNER IN WHICH SERVICES ARE BEING PROVIDED. 3.3. THE TPO FOUND THAT THE ASSESSEE HAS USED ENTITY WISE MARGIN FOR THE PURPOSE OF BENCHMARKING AND HAS SELECTED TNMM AS THE MOST APPROPRIATE METHOD WITH NCM(OPERATING PROFIT/OPERATING ITA. NO. 222/M/2014 4 COST) AS THE PLI. IN THE TP STUDY REPORT, IT WAS FOUND THAT THE ASS ESSEE HAS TAKEN 18 COMPARABLES ( 9 IN RESPECT OF ADVISORY FOR INDIAN EQUITIES AND 10 IN RESPECT OF STRATEGIC INVESTMENTS IN WHICH ONE COMPANY IS COMMON. 3.4. TPO NOTICED THAT THE ASSESSEE HAS USED 3 YEARS WEIGHTED AVERAGE OF THE COMPARABLE AS THE BENCHMAR K, DRAWING SUPPORT FROM THE PROVISO TO RULE 10B(4). THE TPO WAS OF THE OPINION THAT THE USE OF THE DATA PERTAINING TO THE TWO EARLIER YEARS ARE NOT JUSTIFIED. THE TPO PROCEEDED WITH CURRENT YEARS MARGIN. 3.5. THE ASSESSEE HAS SELECTED FOLLOWING PARTICIPANTS: 1 . ACCESS ADVISORS LTD. 2 . BESANT RAJ INTERNATIONAL LTD. 3 . CAPITAL TRUST LTD (SEG) 4 . CRISIL LTD (SEG) 5 . ICRA MANAGEMENT CONSULTING SERVICES LTD. 6 . ICRA ONLINE LTD. 7 . IDCI LTD. 8 . INFORMED TECHNOLOGIES LTD 9 . INTEGRATED CAPITAL SERVICES LTD. 10. KINETIC TRUST LTD 3.6. THE TPO ISSUED A SHOW CAUSE NOTICE TO THE ASSESSEE ASKING HIM AS TO WHY THE FOLLOWING COMPANIES SHOULD NOT BE REGARDED AS COMPARABLE COMPANIES FOR INVESTMENT ADVISORY SERVICES (LISTED AND UNLISTED. ITA. NO. 222/M/2014 5 S. NO. NAME OF THE COMPANY MARGIN FOR TH E YEAR ENDED 31 ST MARCH 2009 (%) 1. AXIS PRIVATE EQUITY LTD 30.42% 2. BRESCON ADVISORS 116.24 3. FUTURE CAPITAL INVESTMENT ADVISORS LTD. 23.4 4. KHANDWALA SECURITIES LTD. 40.8 5. KSHITIJI INVESTMENT ADVISORY CO. LTD. 28.28 6. MOTILAL OSWAL INVESTMENT ADVISORS PVT. LTD. `82.44 7. SUNDRAM FINANCE DISTRIBUTION LTD. 10847 8. INTEGRATED CAPITAL SERVICES LTD. 69.79 ARITHMETIC MEAN 62.50% 3.7. THE ASSESSEES OBJECTION IS AS UNDER: A) REJECTION OF TP DOCUMENTATION I S NOT PROPER B) TPO HAS RESORTED TO CHERRY PICKING THE COMPANIES C) REJECTION OF COMPANIES EARNING SUPER NORMAL PROFITS D) APPROPRIATENESS ON USE OF VARIOUS FILTERS APPLIED E) USE OF SINGLE YEAR DATA NOT PROPER AND F) THE BUSINESS PROFILES OF THE COMPA NIES SELECTED DO NOT MATCH WITH THE BUSINESS ACTIVITY OF THE ASSESSEE. 3.8. THE TPO FOUND ASSESSEES ARGUMENT MORE OF GENERAL IN NATURE. DRAWING SUPPORT FROM THE FINDINGS OF THE DRP GIVEN FOR THE YEAR ENDING 31.3.2008, THE TPO CONCLUDED BY MAKING THE FOLLOWING ADJUSTMENTS FOR LISTED AND UNLISTED FOR INVESTMENT A DVISORY SERVICES: FOR INVESTMENT ADVISORY - LISTED ITA. NO. 222/M/2014 6 PARTICULARS MARGINS OPENING COSTS 95,836,769 MARKUP OF 62.50% AS DISCUSSED 59,897,980 LESS MARKUP OFFERED BY THE ASSESSEE @ 18.75% 17,965,378 ADJUSTMENT 41,932,602 FOR INVESTMENT ADVISORY - UN LISTED PARTICULARS MARGINS OPENING COSTS 366,810,717 MARKUP OF 62.50% AS DISCUSSED 229,256,698 LESS MARKUP OFFERED BY THE ASSESSEE @ 26.42% 96,926,033 ADJUSTMENT 132,330,665 ACCORDINGLY, A TP ADJUSTMENT OF RS. 17,42,63,267/ - WAS MADE. 4. THE ASSESSEE CARRIED THE MATTER BEFORE THE DRP. IT WAS STRONGLY CONTENDED THAT THE TPO HAS GROSSLY ERRED IN REJECTING THE SEPARATE FUNCTIONAL ANALYSIS, SEARCH PROCESS ADOPTED AND DOCUMENTATION MAINTAINED BY THE ASSESSEE FOR THE TRANSACTIONS. IT WAS FURTHER ARGUED THAT THE TPO WAS WRONG IN TREATING THE TWO SEPARATE TRANSACTIONS AS A SINGLE TRANSACTION FOR THE PURPOSE OF ITA. NO. 222/M/2014 7 DETERMINING THE ALP. FUR THER OBJECTIONS WERE RAISED FOR INCLUSION OF CERTAIN COMPARABLE COMPANIES WHO WERE FUNCTIONALLY DIFFERENT FROM THE ASSESSEE. 4.1. AFTER CONSIDERING THE FACTS AND THE SUBMISSIONS AND THE OBJECTIONS RAISED BY THE ASSESSEE, THE DRP FOUND THAT THE MATTER IS N OT NEW AND IN THE CASE OF THE ASSESSEE ITSELF FOR A.YRS 2007 - 08 AND 2008 - 09 THE SAME HAD BEEN DEALT WITH BY THE DRP AND THE STAND OF THE TPO HAD BEEN CONFIRMED. THE DRP FURTHER OBSERVED THAT THE SELECTION OF COMPARABLES IS BASED ON THE FUNCTION OF INVESTM ENT ADVISOR WHICH IS HELD TO BE THE BUSINESS OF THE ASSESSEE. THE DRP CONCLUDED BY CONFIRMING THE TP ADJUSTMENTS MADE BY THE TPO. 5. AGGRIEVED BY WHICH, THE ASSESSEE IS BEFORE US. 6. THE SENIOR LD. COUNSEL VEHEMENTLY SUBMITTED THAT NONE OF THE LOWER AU THORITIES HAS GIVEN REASONS FOR REJECTING ASSESSEES COMPARABLES. THE LD. COUNSEL FURTHER STATED THAT THE DRP HAS NOT EVEN CONSIDERED THE OBJECTIONS RAISED BY THE ASSESSEE. THE LD. COUNSEL FURTHER POINTED OUT THAT THE TPO GROSSLY ERRED IN MAKING ADJUSTME NTS TREATING THE TWO SERVICES SEPARATELY WHEN HE PROCEEDED THE TP ADJUSTMENTS PROCEEDINGS BY INTEGRATING BOTH THE SERVICES. THE LD. SR. COUNSEL ONCE AGAIN STRONGLY OBJECTED TO THE INCLUSION OF THE FOLLOWING COMPARABLES VIZ., SR. NO. NAME OF THE COMPARA BLE AS PER TP ORDER A.Y. 2009 - 10 MARGIN (%) TERATION1:EXCLUDING MOTILAL,BRESCON,SUNDARAM, INTEGRATED KHANDWALA AND AXIS FROM TPO SET 1. MOTILAL OSWAL INVESTMENT ADVISORS PVT. LTD. 82.44% - 2. BRESCON CORPORATE ADVISORS PVT. LTD., 116.24% - 3. SUNDRAM FINANCE 108.47% - ITA. NO. 222/M/2014 8 DISTRIBUTION LTD. 4. INTEGRATED CAPITAL SERVICES LTD. 69.79% - 5. KHANDWALA SECURITIES LTD. 40.80% - 6. AXIS PRIVATE EQUITY LTD 30.42% - 6.1 THE LD. SENIOR COUNSEL FURNISHED A DETAILED CHART STATING THAT IF THE COMPARABLES ARE EXCLUDED THE OPERATING MARGINS OF THE ASSESSEE WOULD BE IN THE RANGE OF 5% FROM THE ARITHMETIC MEAN. THE LD. COUNSEL DREW OUR ATTENTION TO THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2007 - 08 IN ITA NO. 7724/M/2011. IT IS THE SAY OF THE LD. COUNSEL THAT SINCE THE DRP HAS DRAWN SUPPORT FROM THE FINDINGS GIVEN IN EARLIE R ASSESSMENT YEARS AND THE ORDER OF THE DRP HAS BEEN REVERSED FROM THE TRIBUNAL, THE SAME VIEW SHOULD ALSO BE TAKEN FOR THE YEAR UNDER CONSIDERATION. 7. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE STRONGLY RELIED UPON THE FINDINGS OF THE REVENUE AUTHO RITIES. IT IS THE SAY OF THE LD. DR THAT THE COMPARABLES SELECTED BY THE TPO AND CONFIRMED BY THE DRP ARE FUNCTIONALLY COMPARABLE WITH THAT OF THE ASSESSEE AS THE COMPARABLE COMPANIES AND THE ASSESSEE ARE DOING RESEARCH AND THEREAFTER GIVING ADVISO RIES. IT IS THE SAY OF THE DR THAT EVEN THOUGH THE ADVISORS ARE BEING GIVEN ON DIFFERENT ISSUES BUT THE FACT OF THE MATTER IS THAT AFTER DOING RESEARCH BOTH ARE GIVING ADVISED THEREFORE, THEY ARE GOOD COMPARABLES. REFERRING TO THE DECISION OF THE HONBLE HIGH COURT OF KERALA 211 ITR 635, THE LD. DR VEHEMENTLY SUBMITTED THAT THE INTELLIGENT ANALYSIS HAS TO BE MADE AND ONE SHOULD NOT BE CARRIED AWAY WITH THE VIEW TAKEN IN EARLIER YEARS AS RESJUDICAT A IS NOT APPLICABLE TO TAX PROCEEDINGS. ITA. NO. 222/M/2014 9 8. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE RIVAL CONTENTIONS AND HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTHORITIES BELOW. THE UNDISPUTED FACTS ARE THAT THE ASSESSEE IS INTO SHARE BROKING BUSINESS, IT ENABLED SERVICES TO ITS ASSOCIATED ENTERPRISES AND INVESTMENT ADVISORY SERVICES. THE TRANSFER PRICING ADJUSTMENT DISPUTE RELATES TO ONLY TH IRD CATEGORY OF SERVICES I.E. INVESTMENT ADVISORY SERVICES WHICH THE ASSESSEE IS GIVING (A) FOR LISTED SECURITIES AND (B) FOR UNLISTED SECURITIES. AS MENTIONED ELSEWHERE, ASSES SEE HAS FURNISHED THE COMPARABLES. THE DETAILS OF MARKUP CHARGED BY THE ASSESSEE AND ARITHMETIC MEAN OF MARGIN OF COMPARABLE COMPANY SELECTED BY THE ASSESSEE ARE AS UNDER: PARTICULARS MARGIN OF THE APPLICANT ARITHMETIC MEAN OF MARGIN OF COMPARABLE COMPA NIES SELECTED BY THE APPLICANT ON MULTIPLE YEAR BASIS INVESTMENT ADVISORY SERVICES FOR UNLISTED SECURITIES 26.42% 19.84% INVESTMENT ADVISORY SERVICES FOR LISTED SECURITIES 18.75% 19.04% 8.1. THE COMPARABLE COMPANIES SELECTED BY THE ASSESSEE WERE REJECTED BY THE TPO WHO PROCEEDED BY SELECTING THE FOLLOWING COMPANIES: NAME OF THE COMPARABLE MARGIN (%) AXIS PRIVATE EQUITY LTD. 30.42% BRESCON ADVISORS 116.24% ITA. NO. 222/M/2014 10 FUTURE CAPITAL INVESTMENT ADVISORS LTD 23.40% KHANDWALA SECURITIES LTD. 40.80% KSHITIJ INVESTMENT ADVISORY CO. LTD 28.28% MOTILAL OSWAL INVESTMENT ADVISORS PVT. LTD. 82.44% SUNDRAM FINANCE DISTRIBUTION LTD. 108.47% INTEGRATED CAPITAL SERVICES LTD. 69.79% ARITHMETIC MEAN 62.50% 8.2. LET US NOW CONSIDER THE COMPARABLES SELECTED BY THE TPO AND OBJECTED BY THE ASSESSEE BY ONE BY ONE. 1 . MOTILAL OSWAL INVESTMENT ADVISORS PVT. LTD. THIS COMPANY HAS BEEN EXCLUDED AS A COMPARABLES FOR INVESTMENT ADVISORY SERVICES BY THE CO - ORDINATE BENCHES IN THE CASE OF ARISAIG PARTNERS INDIA PVT. LTD IN ITA NO. 1083/M/2014 WHEREIN THE CO - ORDINATE BENCH AT PARA - 15 HAS HELD THAT THIS COMPANY IS ENGAGED IN THE BUSINESS OF MERCHANT BANKING AND, THEREFORE, IS NOT A GOOD COMPARABLE OF A COMPANY PROVIDING INVESTMENT ADVISORY SERVICES TO THE AE. SIMILAR VIEW WAS TAKEN BY THE TRIBUNAL IN THE CASE OF WELLS FARGO REAL ESTATE ADVISORS PVT. LTD IN ITA NO. 1093/M/2014 WHEREIN THE TRIBUNAL AT PARA - 6 OF ITS ORDER HAS HELD THAT MOTILAL OSWAL INVESTMENT ADVISORS PVT. LTD. WAS CARRYING ON BUSINESS OF MERGERS AND ACQUISITIONS AND OTHER RELATED ACTIVITIES AND IS ALSO A MERCHANT BANKER. DRAWING SUPPORT FROM THE DECISION OF THE CO - ORDINATE BENCH GIVEN IN THE CASE OF CARLYLE INDIA ITA. NO. 222/M/2014 11 ADVISORS PVT. LTD. IN ITA NO. 2200/M/2011 , IT WAS HELD THAT MOTILAL OSWAL INVESTMENT ADVISORS PVT. LTD. , IS FUNCTIONALLY NOT COMPARABLE WITH AN INVESTMENT ADVISORY COMPANY. IN THE CASE OF BAIN CAPITAL ADVISORS (INDIA) PVT. LTD IN ITA NO. 1360/M/2014, THE CO - ORDINATE BENCH OF THE TRIBUNAL ARE TAKING A CONSISTENT VIEW THAT MOTILAL OSWAL INVESTMENT ADVISORS PVT. LTD. HAS TO BE EXCLUDED FROM COMPARABLES ON THE PLEA THAT IT WAS ENGAGED IN DIVERSIFIED ACTIVITIES. RESPECTFULLY FOLLOWING THE FINDINGS OF THE CO - ORDINATE BENCHES , WE DIRECT FOR THE EXCLUSION OF MOTILAL OSWAL INVESTMENT ADVISORS PVT. LTD. FROM THE LIST OF COMPARABLES IN THE CASE OF INVESTMENT ADVISORY SERVICES. IT WOULD NOT BE OUT OF PLACE TO REFER TO THE DECISION OF THE TRIBUNAL IN THE CASE OF GENERAL ATLANTIC PVT. LTD IN ITA NO. 1019/M/20 14 WHEREIN THE SAME COMBINATION HAVE EXCLUDED MOTILAL OSWAL INVESTMENT ADVISORS PVT. LTD. FROM THE LIST OF FINAL COMPARABLES. 2 . BRESCON ADVISORS LIMITED A REVIEW OF THE ANNUAL REPORT INDICATES THAT THIS COMPANY HAS EARNED ITS REVENUE FROM DEBT RESOLUTION/DEBT SYNDICATION AND FINANCIAL RESTRUCTURING ADVISORY SERVICES. AS PER THE PROFITS AND LOSS ACCOUNT, INCOME IS EARNED FROM DEBT RESOLUTION AND DEBT SYNDICATION. IT IS FURTHER OBSERVED THAT THIS COMPANY ALSO MAKES SIGNIFICANT INVESTMENTS I N COMPANIES USING ITS OWN FUNDS. THIS COMPANY HAS NOT BEEN CONSIDERED BY THE CO - ORDINATE BENCHES OF THE TRIBUNAL IN THE CASE OF CARLYLE INDIA ADVISORS PVT. L TD 146 TTJ 121 AND ALSO IN THE CASE OF TEMASEK ITA. NO. 222/M/2014 12 HOLDINGS ADVISORS (I) PVT. LTD. IN ITA NOS. 4203/M /2012 & 6504/M/2012 WHEREIN THE TRIBUNAL AT PARA - 53 ON PAGE - 56 OF ITS ORDER HAVE OBSERVED THAT THIS COMPANY IS MOSTLY INTO MAKING INVESTMENT IN THE COMPANIES USING ITS OWN FUND AND IT IS A LEADING PLAYER IN DISTRESS AND SPECIAL SITUATION ADVISOR AND INV ESTMENT COMPANY. THE OVERALL FUNCTION AS PER THE PROFILE OF THE COMPANY CANNOT BE SAID TO HAVE MUCH FUNCTIONAL SIMILARITY WITH THAT OF THE ASSESSEE. RESPECTFULLY FOLLOWING THE FINDINGS/OBSERVATIONS OF THE CO - ORDINATE BENCHES IN RESPECT THIS COMPANY (SU PRA) WE DIRECT THE TPO TO EXCLUDE THIS COMPANY FROM THE FINAL LIST OF COMPARABLES. 3 . SUNDRAM FINANCE DISTRIBUTION LTD. ON PERUSAL OF THE ANNUAL REPORT OF THIS COMPANY SHOW THAT THIS COMPANY IS PRIMARILY ENGAGED IN THE BUSINESS OF AGENCY AND RETAIL DISTRI BUTION, OPERATIONAL INCOME AND INCOME FROM BROKERAGE SERVICE CHARGES AND INCENTIVES FORMS 96% OF THE TOTAL INCOME. WE ALSO FIND FROM THE ANNUAL REPORT THAT THE INCOME IS RECOGNIZED FROM INSURANCE AGENCY COMMISSION AND BROKERAGE. THIS COMPANY WAS NOT CONS IDERED BY THE CO - ORDINATE BENCH IN THE CASE OF J.P. MORGAN INDIA PVT. LTD. IN ITA NO. 8193/M/2010 WHEREIN THE CO - ORDINATE BENCH AT PARA - 24 HAS OBSERVED THAT THIS COMPANY HAS NO EMPLOYEES ON ITS PAY ROLL AND HAS OUTSOURCED ITS ACTIVITIES AND FOR SIMILAR REA SONS THE TRIBUNAL IN THE CASE OF STREAM INTERNATIONAL SERVICES PVT. LTD IN ITA NO. 8997/M/2010 HAS DIRECTED THE EXCLUSION OF THIS COMPANY FROM THE LIST OF COMPARABLES. RESPECTFULLY FOLLOWING THE FINDINGS/OBSERVATIONS OF THE CO - ORDINATE BENCHES (SUPRA), ITA. NO. 222/M/2014 13 WE DIRECT THE TPO FOR THE EXCLUSION OF THIS COMPANY FOR THE FINAL LIST OF COMPARABLES. 4. INTEGRATED CAPITAL SERVICES LTD. THE ONLY REASON FOR INCLUDING THIS COMPANY IN THE FINAL SET OF COMPARABLES IS THAT THE DRP WAS OF THE STRONG VIEW THAT THE ASSESSEE ITSELF HAS ADOPTED THIS COMPANY AS COMPARABLE THOUGH DURING THE COURSE OF THE PROCEEDINGS BEFORE THE DRP, THE ASSESSEE REQU ESTED FOR THE REJECTION OF THIS COMPANY AS COMPARABLE. THE DRP DID NOT ACCEPT THIS CONTENTION SINCE THE ASSESSEE HAD NOT TAKEN ANY GROUND RELATING REJECTION OF THIS COMPARABLE. THIS REASONING GIVEN BY THE DRP CANNOT BE ACCEPTED. THE CO - ORDINATE BENCH IN THE CASE OF STREAM INTERNATIONAL SERVICES PVT. LTD IN ITA NO. 8997/M/2010 HAS CLEARLY LAID DOWN THE PRINCIPLE THAT THERE CAN BE NO ESCAPE FROM THE PROPOSITION THAT THE ASSESSEE IS ENTITLED TO ARGUE ATLEAST BEFORE THE APPELLATE AUTHORITIES THAT A WRONG ST AND TAKEN AT THE TIME OF FILING THE RETURN OF INCOME SHOULD BE ALLOWED TO BE MODIFIED. STRONG RELIANCE WAS PLACED ON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF NIRMALA L. MEHTA 269 ITR 01. DRAWING SUPPORT FROM THE DECISION OF THE CO - ORDINATE BENCH (SUPRA), WE DO NOT FIND ANY STRENGTH IN DRPS OBSERVATIONS. SINCE THIS COMPANY IS ALSO NOT COMPARABLE, WE DIRECT THE TPO TO EXCLUDE THE SAME FROM THE FINAL LIST OF CO MPARABLES. THIS COMPANY WAS ALSO EXCLUDED BY THE TRIBUNAL IN THE CASE OF Q - INDIA INVESTMENT ADVISORS PVT. LTD. IN ITA NO. 923/M/2015 ITA. NO. 222/M/2014 14 WHEREIN THE TRIBUNAL AT PARA - 10 OF ITS ORDER HAS OBSERVED THAT THIS COMPANY IS RENDERING ADVISORY AND CONSULTANCY SERVIC ES IN THE AREA OR MERGER ACQUISITION AND RECONSTRUCTION OF BUSINESS. FOR SIMILAR REASONS IT WAS ALSO EXCLUDED BY THE TRIBUNAL IN THE CASE OF NEW SILK ROUTE ADVISORS PVT. LTD IN ITA NO.1327/M/2014. RESPECTFULLY FOLLOWING THE FINDINGS/OBSERVATIONS OF THE C O - ORDINATE BENCHES (SUPRA), WE DIRECT THE TPO TO EXCLUDE THIS COMPANY FROM THE FINAL LIST OF COMPARABLES. 5. KHANDWALA SECURITIES LIMITED THE OVERALL OPERATIONS OF THIS COMPANY INCLUDE INVESTMENT BANKING, CORPORATE ADVISORY SERVICES, INSTITUTIONAL BAN KING, PRIVATE CLIENT BROKING AND INVESTMENT ADVISORY SERVICES. IT IS SEEN FROM THE ANNUAL REPORT OF THIS COMPANY, THIS COMPANYS PERFORMANCE WAS AFFECTED BY THE GLOBAL CRISIS AND THE RESULTANT/MARKET ME ANT DOWN. FOR MANAGEMENT PURPOSES THIS COMPANY IS ORGANIZED INTO TWO SEGMENTS - F EE BASED AND INVESTMENT/STOCK. THIS COMPANY HAS CONSIDERED THESE TWO DIVISIONS AS ITS BUSINESS SEGMENTS. THE FEE BASED DIVISION PROVIDES FINANCIAL ADVISORY SERVICES RELATING TO MERGERS AND ACQUISITIONS, EQUITY AND DEBT ISSUE MANAGEMENT, PORTFOLIO MANAGEMENT AND BROKING. INVESTMENT AND STOCK DIVISION CARRIES OUT TRADING, INVESTING AND SPECULATION ACTIVITIES IN CAPITAL MARKETS (DEBT AND EQUITY) FOR THE COMPANY. THE DRP HAS ALSO ADMITTED THE FACT S THAT THIS COMPANY IS ALSO ENGAGED IN CORPORATE ADVISORY SERVICES FOR WHICH SEPARATE ITA. NO. 222/M/2014 15 SEGMENTAL ARE AVAILABLE. HOWEVER, ON PERUSAL OF THE ANNUAL REPORT SHOW THAT AND AS REPORTED UNDER THE HEAD SEGMENTAL INFORMATION, THE COMPANY HAS NOT REPORTED ANY SECONDARY SEGMENT INFORMATION. THIS COMPANY HAS ALSO BEEN EXCLUDED BY THE CO - ORDINATE BENCH IN THE CASE OF CARLYLE INDIA ADVISORS PVT. LTD. IN ITA NO. 7901/M/2011 FOR THE REASON THAT THE TPO HIMSELF HAS REJECTED THIS COMPANY AS COMPARABLE ON THE GROUND THAT ITS INCOME IS VERY AKIN AS SECURITY AND STOCK BROKERS. THOUGH THE TPO CHANGED HIS VIEW AND INCLUDED THIS COMPANY IN THE FINAL LIST OF COMPARABLE, THE CO - ORDINATE BENCH ACCORDINGL Y DIRECTED FOR THE EXCLUSION OF THIS COMPANY. THIS ORDER OF THE TRIBUNAL WAS CONFIRMED BY THE HONBLE HIGH COURT OF BOMBAY VIDE INCOME TAX APPEAL L. NO. 1286 OF 2012 DT. 22.2.2013. RESPECTFULLY FOLLOWING THE OBSERVATION/FINDINGS OF THE CO - ORDINATE BENCH , WE DIRECT THE TPO FOR THE EXCLUSION OF THIS COMPANY FROM THE FINAL LIST OF COMPARABLES. 6. AXIS PRIVATE EQUITY LTD. THIS COMPANY IS ENGAGED IN MANAGING DIRECTLY OR INDIRECTLY INVESTMENTS, MUTUAL FUNDS, VENTURE, CAPITAL FUNDS OF SHARE FUNDS, PENSION FUNDS, PROVIDENT FUNDS, INSURANCE FUNDS OR ANY OTHER FUNDS AND TO PROMOTE MANAGE AND CARRY ON ANY VENTURE CAPITAL FUNDS OPERATION. THIS COMPANY ACTS AS INVESTMENT MANAGER OF AXIS INFRASTRUCTURE FUND. OUT OF ITS GROSS INCOME OF RS. 11.45 CRORES, 11.28% HAS COME FROM MANAGEMENT FEE I.E. FROM AXIS INFRASTRUCTURE FUND. WE ALSO FIND THAT AXIS BANK LTD., OWNS 100% OF THE PAID UP CAPITAL OF THE COMPANY. IN OUR CONSIDERED OPINION, THE RELATED PARTY ITA. NO. 222/M/2014 16 TRANSACTIONS ARE MORE THAN 90%. MOREOVER, THE PRINCIPLE PRO DUCT/SERVICES OF THE COMPANY AS PER BALANCE SHEET ABSTRACT SHOW THAT IT IS INTO THE ASSET MANAGEMENT SERVICES. THUS, IT CAN BE SAFELY CONCLUDED THAT THIS COMPANY HAS FUNCTIONALLY DIFFERENT FROM THE ASSESSEE. THEREFORE, IT WOULD BE BETTER TO EXCLUDE THIS COMPANY FROM THE FINAL LIST OF COMPARABLES. WE DIRECT ACCORDINGLY. 9. HAVING SAID ALL THAT ABOUT THE EXCLUSION OF THESE COMPANIES FROM THE FINAL LIST OF COMPARABLES, ONLY TWO COMPANIES REMAINED I.E. KSHITIJ INVESTMENT ADVISORY CO. LTD - 28.28% AND FUTURE CAPITAL INVESTMENT ADVISORS LTD 23.40%, THE ARITHMETIC MEAN COMES TO 25.84%. THE ASSESSEES MARGIN IS AT 24.83%. THUS ASSESSEES MARGIN IS WITHIN THE RANGE. THIS IS PROPERLY EXPLAINED AS UNDER: NAME OF THE COMPARABLE MARGIN (%) MOTILAL OSWAL INVESTMENT ADVISORS PVT. LTD. 82.44% BRESCON ADVISORS 116.24% SUNDRAM FINANCE DISTRIBUTION LTD. 108.47% INTEGRATED CAPITAL SERVICES LTD. 69.79% KHANDWALA SECURITIES LTD. 82.44% AXIS PRIVATE EQUITY LIMITED 30.42% 10. FOR THE SAKE OF COMPLETENESS WE WOULD LIKE TO MAKE IT CLEAR THAT WE HAVE ONLY CONSIDERED THE AFOREMENTIONED COMPARABLES THOUGH THERE ARE MANY OTHERS WHOSE ACCEPTANCE/REJECTION HAS NOT BEEN CONSIDERED. WE, DIRECT THE TPO TO REDO THE TP ADJUSTMENTS AS ITA. NO. 222/M/2014 17 PER O UR DIRECTIONS MENTIONED HEREINABOVE. THE GRIEVANCE RELATED TO UPWARD TRANSFER PRICING ADJUSTMENTS IS ACCORDINGLY ALLOWED. 11. GROUND NO. 3 & 4 RELATE TO THE COMPUTATION OF DEDUCTION U/S. 10A OF THE ACT. 11.1. THIS ISSUE HAS BEEN CONSIDERED BY THE AO A T PARA - 5 OF HIS ORDER WHEREIN HE HAS DRAWN SUPPORT FROM THE OBSERVATIONS MADE IN THE ASSESSMENT ORDER FOR A.Y. 20 - 08 - 09 BY WHICH THE ASSESSEE WAS ASKED TO EXPLAIN WHY 50% OF THE TELECOMMUNICATION EXPENSES SHOULD NOT BE EXCLUDED FROM EXPORT TURNOVER FOR INC LUSION OF DEDUCTION U/S. 10A OF THE ACT. 11.2. THE ASSESSEE STRONGLY OBJECTED TO THIS PROPOSAL OF THE AO WHICH WAS NOT ACCEPTED BY THE AO AND WHO PROCEEDED BY COMPUTING THE DEDUCTION U/S. 10A BY EXCLUDING THE TELECOMMUNICATION EXPENSES IN FOREIGN CURRENC Y FROM THE EXPORT TURNOVER OF THE UNDERTAKING WHICH WAS CONFIRMED BY THE DRP. 11.3. BEFORE US, AT THE VERY OUTSET, THE LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE DECISION OF THE HONBLE HIGH COURT OF BOMBAY IN THE CASE OF CIT VS GEM PLUS JE WELLERY 330 ITR 175. 11.4. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE COULD NOT BRING ANY DISTINGUISHING DECISION IN FAVOUR OF THE REVENUE. 11.5. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE FACTS QUA THE DECISION OF THE HONBLE HIGH COURT OF BOMBAY (SUPRA). RESPECTFULLY FOLLOWING THE RATIO LAID DOWN BY THE HONBLE HIGH COURT OF BOMBAY, WE DIRECT THE AO TO EXCLUDE THE TELECOMMUNICATION EXPENSES FROM ITA. NO. 222/M/2014 18 TOTAL TURNOVER ALSO . GROUND NO. 3 & 4 ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSE. 12. GROUND NO. 5 & 6 RELATE TO THE GRIEVANCE RELATED TO ESOP COST. 12.1. THE AO HAS CONSIDERED THIS ISSUE AT PARA - 6 OF HIS ORDER. WHILE SCRUTINIZING THE RETURN OF INCOME, THE AO FOUND THAT THE EMPLOYEE COSTS INCLUD E THE COST OF RESTRICTIVE STOCK UNIT AND STOCK OPTIONS PLANT UNDER THE GOLDMAN SACHS GROUP INC. AMENDED AND RESTATED STOCK INCENTIVE PLAN, WHICH IS BEING CHARGED TO THE PROFIT AND LOSS ACCOUNTS OVE R THE PERIOD OF VESTING. THE ASSESSEE WAS ASKED TO SUBMIT THE COPIES OF THE SAID AGREEMENT AND THE DETAILS OF SUCH EXPENDITURE. THE ASSESSEE FILED A DETAILED REPLY DATED 18.2.2013, THE CONTENTS OF WHICH ARE EXTRACTED AT PARA - 6.2 OF THE ASSESSMENT ORDER. 12.2. THE SUBMISSIONS MADE BY THE ASSESSEE WERE CONSIDERED BUT NOT FOUND CONVINCING. THE AO PROCEEDED BY DISALLOWING THE NET AMOUNT ON ACCOUNT OF AMORTIZATION WHICH WAS CONFIRMED BY THE DRP. 12.3. BEFORE US, THE LD. SENIOR COUNSEL DREW OUR ATTENTION TO THE DECISION OF THE SPECIAL BENCH OF THE BANGALORE TRIBUNAL IN THE CASE OF BIOCON LTD 144 ITD 21 (BANG) WHEREIN ON SIMILAR FACTS THE DISCOUNT ON ISSUE OF ESOP WAS ALLOWED AS DEDUCTION. 12.4. THE LD. DR COULD NOT BRING ANY DISTINGUISHING DECISION IN FAVOUR OF THE REVENUE. RESPECTFULLY FOLLOWING THE DECISION OF THE SPECIAL BENCH (SUPRA), WE HOLD THAT DISCOUNT ON ISSUE OF EMPLOYEES STOCK OPTIONS IS ALLOWABLE AS DEDUCTION IN COMPUTING THE INCOME ITA. NO. 222/M/2014 19 UNDER THE HEAD PROFITS AND GAINS OF BUSINESS OF PROFE SSION. GROUND NO. 5 & 6 ARE ACCORDINGLY ALLOWED. 13. GROUND NO. 7 RELATES TO THE DISALLOWANCE OF CHARGES PAID TO NATIONAL SECURITIES CLEARING CORPORATION LTD, BOMBAY STOCK EXCHANGE AND NATIONAL STOCK EXCHANGE. 13.1. THIS ISSUE HAS BEEN CONSIDERED BY TH E AO AT PARA - 7 OF HIS ORDER. WHILE SCRUTINIZING THE RETURN OF INCOME, THE AO FOUND THAT THE ASSESSEE HAS PAID RS. 22,91,790/ - TO STOCK EXCHANGES TOWARDS FIND FOR NON COMPLIANCE OF CLEARING HOUSE TRADES, CLIENT CODE MODIFICATION ETC. THE AO DISALLOWED THE SAME TREATING AS VIOLATIONS OF LEGISLATED LAW. THE SAME WAS CONFIRMED BY THE DRP. 13.2. BEFORE US, THE LD. SENIOR COUNSEL DREW OUR ATTENTION TO THE DECISION OF THE HONBLE HIGH COURT OF BOMBAY IN THE CASE OF ANGEL CAPITAL & DEB IT T MARKET LTD. IN IN COME TAX APPEAL ( L ) NO. 475 OF 2011 WHEREIN THE HONBLE COURT HAD THE OPINION TO CONSIDER THE FOLLOWING QUESTION OF LAW. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE HONBLE TRIBUNAL WAS JUSTIFIED IN DELETING THE DISALLOWANC E MADE BY THE ASSESSING OFFICER OF CLAIM OF THE ASSESSING COMPANY FOR A DEDUCTION OF PAYMENT OF RS. 6,51,240/ - TOWARDS PENALTY PAID TO STOCK EXCHANGE EVEN THOUGH SUCH PENALTY PAYMENT WAS CLEARLY DISALLOWABLE UNDER EXPLANATION TO SECTION 37(1) OF THE INCOME TAX ACT? AND THE SAME WAS ANSWERED BY THE HONBLE HIGH COURT AS UNDER: ITA. NO. 222/M/2014 20 AS REGARDS QUESTION (C) IS CONCERNED, THE FINDING OF FACT RECORDED BY THE ITAT IS THAT THE AMOUNT PAID AS PENALTY WAS ON ACCOUNT OF IRREGULARITIES COMMITTED BY THE ASSESSEES CLIENTS. SUCH PAYMENTS WERE NOT ON ACCOUNT OF ANY INFRACTION OF LAW AND HENCE ALLOWABLE AS BUSINESS EXPENDITURE. IN SUCH A CASE THE EXPLANATION TO SEC. 37 WOULD NOT APPLY. ACCORDINGLY QUESTION (C) RAISED BY THE REVENUE CANNOT BE ENTERTAINED. RESPECTF ULLY FOLLOWING THE RATIO LAID DOWN BY THE HONBLE HIGH COURT (SUPRA), WE DIRECT THE AO TO DELETE THE IMPUGNED ADDITIONS. GROUND NO. 7 IS ACCORDINGLY ALLOWED. 14. GROUND NO. 8 RELATES TO NON - ALLOWANCE OF DEDUCTION ON THE GROUND THAT BONUS EXPENSE AMOUN TING TO RS. 1,11,48,316/ - ARE NOT ACTUALLY PAID . 14.1. THIS ISSUE HAS BEEN CONSIDERED BY THE AO AT PARA - 9 OF HIS ORDER WHEREIN THE AO OBSERVED THAT AN AMOUNT OF RS. 1,11,48,316/ - IS ADJUSTED DURING THE YEAR WHICH PERTAINS TO BONUS OF EMPLOYEES OF OTHER GR OUP COMPANIES. THE ASSESSEE WAS ASKED TO JUSTIFY ITS CLAIM. THE SSESSEE FILED A DETAILED REPLY VIDE LETTER DATED 18.2.2013 BY WHICH THE ASSESSEE EXPLAINED THAT IN A.Y. 2008 - 09, THE ASSESSEE HAS DISALLOWED BONUS AMOUNTING TO RS. 36,46,21,050/ - PAYABLE TO EMPLOYEES AS THE SAME WAS NOT PAID ON OR BEFORE THE DUE DATE OF FILING THE RETURN OF INCOME. THE SAID AMOUNT WAS PAID ON A.Y. 2009 - 10 AND THE SAME IS CLAIMED AS DEDUCTION. THE CLAIM OF THE ASSESSEE WAS REJECTED BY THE AO WHO WAS OF THE FIRM BELIEF THAT OUT OF THE TOTAL BONUS PAYABLE, THE AMOUNT OF RS. 1,11,48,316/ - IS NOT ACTUALLY PAID ITA. NO. 222/M/2014 21 BUT ADJUSTED AND ACCORDINGLY DISALLOWED THE SAME WHICH WAS CONFIRMED BY THE DRP. 14.2. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO EXHIBIT 275 WHI CH IS APPENDIX - IV TO THE AUDIT REPORT FOR THE YEAR ENDED 31.3.2008. IT WAS POINTED OUT BY THE LD. COUNSEL THAT THE BONUS AMOUNT OF RS. 36,46,21,050/ - WAS NOT PAID ON OR BEFORE THE DUE DATE FOR FURNISHING THE RETURN OF INCOME OUT OF WHICH THE ASSESSEE PAID AN AMOUNT OF RS. 35,34,72,734/ - DURING THE YEAR UNDER CONSIDERATION. IT IS THE SAY OF THE LD. COUNSEL THAT THE AO HAS NOT PROPERLY APPRECIATED THE FACTS OF THE CASE. 14.3. WE FIND FORCE IN THE CONTENTION OF THE LD. COUNSEL. IT APPEARS THAT THE AO HAS NOT APPRECIATED THE FACTS IN THE RIGHT PERCEPTIVE THEREFORE IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE RESTORE THIS ISSUE TO THE FILE OF THE AO. THE AO IS DIRECTED TO CONSIDER THE FACTS OF THE CASE PROPERLY AND DECIDE THE ISSUE AFRESH AFTER GIVING REAS ONABLE AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. GROUND NO. 8 IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. 15. GROUND NO. 9 RELATES TO THE ADDITION ON ACCOUNT OF THE DIFFERENCE BETWEEN THE ACTUAL PAYMENTS MADE BY THE ASSESSEE TO AMERI CAN EXPRESS BANKING CORPORATION (AEBC) AND THE CONFIRMATION PROVIDED BY AEBC. 15.1. THE AO HAS CONSIDERED THIS ISSUE AT PARA - 10 OF HIS ORDER ON THE BASIS OF AIR INFORMATION. THE AO OBSERVED THAT THE ASSESSEE HAS MADE A PAYMENT OF RS. 26,82,34,382/ - TO A EBC AGAINST CREDIT CARD. THE ASSESSEE WAS ASKED TO RECONCILE ALONGWITH DOCUMENTARY ITA. NO. 222/M/2014 22 EVIDENCES. THE ASSESSEE EXPLAINED THAT IT HAS MADE PAYMENT OF RS. 11,55,45,253/ - . ON FINDING A HUGE DIFFERENCE, THE ASSESSEE WAS ASKED TO SUBMIT CONFIRMATION FROM AEBC WH ICH WAS DULY SUBMITTED. AEBC CONFIRMED OF HAVING RECEIVED A PAYMENT OF RS. 11,43,25,060/ - AND ADMITTED THAT THE HIGHER AMOUN T REPORTED IN AIR WAS A MISTAKE. THE AO ADDED THE DIFFERENCE BETWEEN THE AMOUNT CONFIRMED BY AEBC AND DEBITED BY THE ASSESSEE WHIC H WAS CONFIRMED BY THE DRP. 15.2. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE LETTERS/CONFIRMATION WRITTEN BY AEBC WHICH ARE PLACED AT PAGES 276 TO 280 OF THE PAPER BOOK. IT IS THE SAY OF THE LD. COUNSEL THAT ONCE AEBC HAS CONF IRMED THE AMOUNT WHICH IT HAS ACTUALLY PAID TO THE ASSESSEE, THERE REMAINS NO REASON FOR THE IMPUGNED ADDITIONS. 15.3. WE HAVE CAREFULLY GONE THROUGH THE DOCUMENTARY EVIDENCE BROUGHT ON RECORD BEFORE US. WE FIND FORCE IN THE CONTENTION OF THE LD. COUNSE L. A PERUSAL OF DRPS ORDER ALSO SHOW THAT THE CORRECTED AMOUNT WAS PROVIDED TO THE DRP BUT THE SAME WAS NOT ACCEPTED AS IT WAS NOT UPLOADED BY AEBC ON AIR. IN OUR CONSIDERED OPINION, IF THE PAYEE DOES NOT AMEND ITS AIR INFORMATION, THE PAYER CANNOT BE PENALIZED FOR THE SAME. ONCE AEBC HAS CONFIRMED OF HAVING RECEIVED AN AMOUNT OF RS. 11,55,45,253/ - ALONGWITH RELEVANT BANK STATEMENTS EVIDENCING THE PAYMENT, WE DO NOT FIND ANY REASON/LOGIC IN MAKING THE ADDITIONS. THE AO IS DIRECTED TO DELETE THE SAME. GROUND NO. 9 IS ACCORDINGLY ALLOWED. ITA. NO. 222/M/2014 23 16. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH NOVEMBER , 2015 . SD/ - SD/ - ( SAKTIJIT DEY ) (N.K. BILLAIYA) /JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 30 TH NOVEMBER , 2015 . . ./ RJ , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI