BOEING INDIA PVT. LTD (Erstwhile known as Boeing Intl. Corp. India Pvt. Ltd.), NEW DELHI V. ACIT, CIRCLE- 5(1), NEW DELHI

ITA 2374/DEL/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 2430 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 7 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I1
• Assessment Year: 2012-2013
• Appeal Filed On: 05-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SURENDER PAL
• Keywords: Transfer pricing; Double taxation relief; International transaction; Rule of consistency; Question of law; TDS; Set aside
• Section: 40(a)(ia); 195; 274; 192; 13; 92CA; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH I-1 : NEW DELHI) BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER (THROUGH VIDEO CONFERENCE) ITA NO.2374/DEL./2018 (ASSESSMENT YEAR : 2012-13) ITA NO.2375/DEL./2018 (ASSESSMENT YEAR : 2013-14) M/S. BOEING INDIA PVT. LTD., VS. ACIT, (ERSTWHILE KNOWN AS BOEING INTERNATIONAL CIRCLE 5 (1), CORP. INDIA PVT. LTD.), NEW DELHI. 3 RD FLOOR, DLF CENTRE, SANSAD MARG, NEW DELHI 110 001. (PAN : AAHCB1218P) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ARVIND DATAR, SR. ADVOCATE SHRI SACHIT JOLLY, ADVOCATE MS. ANURADHA DUTT, ADVOCATE SHRI TUSHAR JARWAL, ADVOCATE REVENUE BY : SHRI SURENDER PAL, CIT DR DATE OF HEARING : 05.11.2020 DATE OF ORDER : 27.11.2020 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : SINCE COMMON QUESTIONS OF FACTS AND LAW HAVE BEEN R AISED IN BOTH THE AFORESAID APPEALS, THE SAME ARE BEING D ISPOSED OFF BY WAY OF CONSOLIDATED ORDER TO AVOID REPETITION OF DI SCUSSION. ITA NOS.2374 & 2375/DEL./2018 2 2. APPELLANT, M/S. BOEING INDIA PVT. LTD. (HEREINAF TER REFERRED TO AS THE TAXPAYER) BY FILING THE PRESENT APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER BOTH DATED 26.12.2017 PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-44, NEW DELHI IN THE APPEALS CHALLENGING THE ORDERS PASSED BY THE LD. TP O/ASSESSING OFFICER QUA THE ASSESSMENT YEARS 2012-13 & 2013-14 ON THE IDENTICAL GROUNDS, EXCEPT THE DIFFERENCE IN AMOUNT, INTER ALIA THAT :- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE & IN LAW, THE LD. CIT(A) ERRED IN UPHOLDING CORPORATE TAX DISALLO WANCE (RS.22,16,37,000 & RS.30,84,53,598 FOR AYS 2012-13 & 2013- 14) MADE BY LD. AO UNDER SECTION 40(A)(I) OF THE IN COME TAX ACT, 1961 ('THE ACT') FOR NOT WITHHOLDING' TAXES AT SOURCE, BY ERRONEOUSLY TREATING THE REIMBURSEMENT OF SALARIES AND OTHER EXPENSES AS FEES FOR TECHNICAL SERVICES ('ITS') UND ER SECTION 9(1)(VII) OF THE ACT AND FEES FOR INCLUDED SERVICES ('FIS')/ROYALTY UNDER RELEVANT ARTICLES OF INDO-USA AND INDO- AUSTRALIA TAX TREATIES. 2. IN DOING SO, THE LD. AO AS WELL AS THE LD. CIT( A) FAILED TO APPRECIATE THAT: 2.1 THE AFORESAID PAYMENTS WERE NOT CHARGEABLE TO TAX IN INDIA SINCE THEY PERTAINED TO SECONDED EMPLOYEES OF ASSOCIATED ENTERPRISES ('AES') WORKING FOR THE APPELLANT AND, WERE UNDER ITS CONTROL AND SUPERVISI ON. 2.2 TAXES WERE DULY WITHHELD UNDER SECTION 192 OF THE ACT ON SALARIES PAID TO THE SECONDED EMPLOYEES OF THE A ES OF THE APPELLANT. . 3. ON THE FACTS, IN THE CIRCUMSTANCES OF THE CASE & IN LAW, THE LD. TRANSFER PRICING OFFICER ('TPO')/ CIT(A) ER RED IN ENHANCING THE INCOME OF THE APPELLANT ON ACCOUNT OF OUTSTANDING RECEIVABLES FROM AES AND FAILED TO APPR ECIATE THAT THE OUTSTANDING RECEIVABLES AND PAYABLES OF THE APP ELLANT WERE IN ACCORDANCE WITH THE ARM'S LENGTH STANDARD. 4. ON THE FACTS, IN THE CIRCUMSTANCES OF THE CASE & IN LAW, THE LD. TPO/ CIT(A) ERRED IN NOT APPRECIATING THAT INTEREST ON RECEIVABLES IS NOT A SEPARATE INTERNATIONAL TRANSAC TION AS THE ITA NOS.2374 & 2375/DEL./2018 3 INTEREST PROPOSED TO BE CHARGED IS ALREADY BUILT IN THE PRICE CHARGED FOR SERVICES RENDERED. 5. ON THE FACTS, IN THE CIRCUMSTANCES OF THE CASE & IN LAW, THE LD. CIT(A) ERRED IN NOT APPRECIATING THAT SINCE THE APPELLANT DID NOT CHARGE INTEREST ON OUTSTANDING RE CEIVABLES FROM THIRD PARTY CUSTOMER, NO ADJUSTMENT IS WARRANT ED ON ACCOUNT OF OUTSTANDING RECEIVABLES FROM AES. 6. ON THE FACTS, IN THE CIRCUMSTANCES OF THE CASE & IN LAW, THE LD. TPO/ CIT(A) ERRED IN ENHANCING THE INCOME O F THE APPELLANT BY APPLYING INAPPROPRIATE INTEREST RATE. 7. ON THE FACTS, IN THE CIRCUMSTANCES OF THE CASE & IN LAW, THE LD. TPO/CIT(A) ERRED IN ENHANCING THE INCOME OF THE APPELLANT BY NOT ADJUSTING THE TOTAL RECEIVABLES FR OM AES, INSTEAD INCORRECTLY ADJUSTING THE RECEIVABLES AND P AYABLES FROM THE SAME AES. 8. ON THE FACTS, IN THE CIRCUMSTANCES OF THE CASE & IN LAW, THE LD. TPO/CIT(A) ERRED IN ENHANCING THE INCOME OF THE APPELLANT BY DISREGARDING THE PRINCIPLE OF CONSISTE NCY AND NOT FOLLOWING THE APPROACH ADOPTED BY THE LD. TPO IN AY 2011-12 OF NOT MAKING AN ADJUSTMENT ON ACCOUNT OF OUTSTANDI NG RECEIVABLES. 9. ON THE FACTS, IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE ORDER PASSED BY THE LD. CIT(A) IS BAD IN L AW AND VOID AB-INITIO. 3. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : M/S. BOEING INDIA PVT. LT D., THE TAXPAYER (ERSTWHILE KNOWN AS BOEING INTERNATIONAL CORPORATIO N INDIA PVT. LTD.) WAS INCORPORATED IN INDIA UNDER THE COMPANIES ACT, 1956 ON DECEMBER 8, 2003 AND WAS ACCORDED APPROVAL FROM GOV ERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF ECONOMIC AFFAIRS AND FIPB UNIT ON OCTOBER 16, 2003. THE TAXPAYER IS ENG AGED IN THE BUSINESS OF PROVIDING BUSINESS DEVELOPMENT, ADVISOR Y AND OTHER SUPPORT SERVICES TO ITS ASSOCIATED ENTERPRISES (AES ) FOR WHICH THE ITA NOS.2374 & 2375/DEL./2018 4 TAXPAYER REQUIRED EMPLOYEES HAVING REQUISITE SKILLS , KNOWLEDGE AND EXPERIENCE. FOR CARRYING OUT ITS SERVICES, THE TAXPAYER EMPLOYED SOME LOCAL EMPLOYEES AND ALSO IDENTIFIED C ERTAIN EXPATRIATE EMPLOYEES FROM ITS AES. THE AFORESAID E XPATRIATE EMPLOYEES EMPLOYED BY THE AES HAVE BEEN RELEASED AN D TAKEN INTO EMPLOYMENT BY THE TAXPAYER. 4. DURING THE YEAR UNDER ASSESSMENT, THE TAXPAYER T AKEN INTO EMPLOYMENT THE EXPATRIATE EMPLOYEES FROM US AND AUS TRALIA ON THE SALARY TO BE PAID BY THE TAXPAYER IN INDIA WHIC H WAS ACCOUNTED FOR AS EXPENSE UNDER SALARIES & WAGES IN THE BOOK S OF ACCOUNT OF THE TAXPAYER AND APPROPRIATE TAXES ON SUCH SALAR IES & WAGES WERE DEDUCTED AND DEPOSITED BY THE TAXPAYER UNDER S ECTION 192 OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT). 5. THE ASSESSING OFFICER (AO) OBSERVED THAT THE TAX PAYER HAS ENTERED INTO INTERNATIONAL TRANSACTIONS PERTAINING TO REIMBURSEMENT OF EXPENSES PAID TO ITS AES TO THE TUNE OF RS.40,97 ,62,682/-. ON SUBMITTING THE DETAILS, THE TAXPAYER WAS CALLED UPO N TO EXPLAIN WHY THE DISALLOWANCE BE NOT MADE U/S 40(A)(I) AS NO TDS (TAX DEDUCTED AT SOURCE) HAS BEEN DEDUCTED ON PAYMENTS WHICH ARE ACTUALLY IN THE NATURE OF FEE FOR TECHNICAL SERVICES (FTS). THE TAXPAYER EXPLAINED THAT SINCE THE EXPATRIATE EMPLOYEES WERE UNDER ITS CONTROL WITHOUT ANY RELATION/CONNECTION WITH THE AE S AND SALARY ITA NOS.2374 & 2375/DEL./2018 5 EXPENSES HAVE BEEN BORNE BY THE TAXPAYER ON WHICH T AX HAS BEEN DEDUCTED U/S 192 OF THE ACT, THE SAME CANNOT BE DIS ALLOWED BEING FEE FOR TECHNICAL SERVICES. DECLINING THE CONTEN TIONS RAISED BY THE TAXPAYER, THE AO AFTER REFERRING TO THE SECONDMENT AGREEMENT AND BY RELYING UPON THE DECISION RENDERED BY HONBLE DE LHI HIGH COURT IN CASE OF CENTRICA INDIA OFFSHORE P. LTD. VS. CIT (2014) 364 ITR 336 (DELHI) PROCEEDED TO INVOKE THE PROVISIONS CONTAINED U/S 40(A)(I) OF THE ACT BY HOLDING THAT THE TAXPAYE R HAS FAILED TO DEDUCT THE TAX AT SOURCE ON SALARY & OTHER ALLOWANC ES AMOUNTING TO RS.32,47,18,234/- & RS.40,97,62,682/- AND THEREBY M ADE DISALLOWANCE OF RS.22,16,37,000/- & RS.30,84,53,598 /- FOR AYS 2012-13 & 2013-14 RESPECTIVELY IN TERMS OF ARTICLE 12 (4) OF THE INDO US DOUBLE TAX AVOIDANCE AGREEMENT (INDO US DTA A). 6. LD. TPO WHILE DETERMINING THE ARMS LENGTH PRICE OF THE INTERNATIONAL TRANSACTIONS ENTERED INTO BETWEEN THE TAXPAYER AND ITS AES U/S 92CA(3) NOTICED FROM THE INVOICES RAISED BY THE TAXPAYER THAT IT HAS NOT RECEIVED THE PAYMENT WITHIN THE TIM E STIPULATED FOR THE SERVICE AGREEMENT WITH THE AES. CONSEQUENTLY, ON OUTSTANDING AMOUNTS, DELAYED PAYMENTS ARE TREATED IN THE NATURE OF UNSECURED LOANS ADVANCED TO THE AES AND THEREBY COMPUTED THE INTEREST @12.87% ON THE OUTSTANDING RECEIVABLES FROM THE AES AND MADE A ITA NOS.2374 & 2375/DEL./2018 6 TRANSFER PRICING ADJUSTMENT OF RS.25,64,446/- AND R S.2,55,230/- FOR AYS 2012-13 & 2013-14 RESPECTIVELY. 7. LD. TPO ACCORDINGLY ASSESSED THE INCOME AT RS.48,58,23,790/- & RS.62,21,78,708/- FOR AYS 2 012-13 & 2013-14 RESPECTIVELY. 8. THE TAXPAYER CARRIED THE MATTER BEFORE THE LD. C IT (A) BY WAY OF FILING THE APPEALS WHO HAS PARTLY ALLOWED TH E SAME. FEELING AGGRIEVED, THE TAXPAYER HAS COME UP BEFORE THE TRIB UNAL BY WAY OF FILING THE PRESENT APPEALS. 9. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. GROUNDS NO.1, 2, 2.1 & 2.2 IN ITA NO.2374/DEL./2018 (AY 2012-13) & ITA NO.2375/DEL./2018 (AY 2013-14) 10. AT THE OUTSET, LD. AR FOR THE TAXPAYER CHALLENG ING THE IMPUGNED DISALLOWANCE MADE BY THE AO/CIT(A) UNDER S ECTION 40(A)(I) OF THE ACT CONTENDED INTER ALIA THAT BOTH THE AO AS WELL AS LD. CIT (A) HAVE ERRED IN MAKING DISALLOWANCE U/S 4 0(A)(I) OF THE ACT AS THE SAID PAYMENTS WERE NOT CHARGEABLE TO TAX IN INDIA BEING PERTAINING TO SAID EMPLOYEES OF AES WORKING FOR THE TAXPAYER UNDER ITS CONTROL AND SUPERVISION; THAT TAXES WERE DULY DEDUCTED BY ITA NOS.2374 & 2375/DEL./2018 7 THE TAXPAYER U/S 192 OF THE ACT ON SALARIES PAID TO THE SAID EMPLOYEES OF THE AES; THAT IDENTICAL ISSUE HAS ALRE ADY BEEN DECIDED IN FAVOUR OF THE TAXPAYER BY THE COORDINATE BENCH O F THE TRIBUNAL VIDE ORDER DATED 17.08.2020 PASSED IN ITA NO.9765/DEL/20 19 FOR ASSESSMENT YEAR 2015-16 IN ITS OWN CASE BY DISTINGUISHING THE DECISION OF HONBLE DELHI HIGH COURT PASSED IN CASE OF CENTRICA INDIA OFFSHORE P. LTD. (SUPRA) AND ALSO RELIED UPON THE DECISIONS RENDERED BY HONBLE DELHI HIGH COURT IN CASES OF CIT, DELHI II VS. KARL STORZ ENDOSCOPY INDIA (P) LTD. IN ITA NO.13 OF 2008 ORDER DATED 13.09.2010 & DIRECTOR OF INCOME -TAX VS. HCL INFOSYSTEMS LTD. 274 ITR 261 (DEL.) AND COORDIN ATE BENCH OF THE TRIBUNAL IN THE CASES OF HCL INFOSYSTE MS LTD. VS. DCIT IN ITA NOS.4068 TO 4077/DEL/2020 ORDER DATED 26.02.2002, AT&T COMMUNICATION SERVICES ((INDIA) P. LTD. IN ITA NOS.354/DEL/2017 & 1653/DEL/2016 ORDER DATED 31 .10.2018 & ADDL.DIT (INTERNATIONAL TAXATION) VS. MARK AND SP ENCER RELIANCE INDIA P. LTD. (2013) 27 ITR (TRIB) 448 (MU MBAI) . 11. HOWEVER, ON THE OTHER HAND, LD. DR FOR THE REVE NUE TO REPEL THE ARGUMENTS ADDRESSED BY THE LD. AR FOR THE TAXPA YER CONTENDED INTER ALIA THAT SINCE IT IS A CASE FOR FEE FOR TEC HNICAL SERVICES (FTS), THERE IS NO ESCAPE ROUTE FOR THE TAXPAYER TO DEDUCT TAX U/S 192 OF THE ACT; THAT COORDINATE BENCH OF THE TRIBUN AL IN TAXPAYERS ITA NOS.2374 & 2375/DEL./2018 8 OWN CASE FOR AY 2015-16 DECIDED VIDE ORDER DATED 17 .08.2020 HAS NOT APPRECIATED THE REAL FACTS CANVASSED BY THE REV ENUE AND HAS REFERRED TO PARA 31 OF THE ORDER (SUPRA). HOWEVER, THE LD. DR FOR THE REVENUE HAS FAILED TO BRING ON RECORD IF THE FA CTS AND GROUNDS RAISED IN THE CASE AT HAND ARE DISTINGUISHABLE FROM TAXPAYERS OWN CASE OF AY 2015-16 DECIDED IN ITS FAVOUR BY THE COO RDINATE BENCH OF THE TRIBUNAL AND IF THE ORDER PASSED BY THE TRIB UNAL IN TAXPAYERS OWN CASE FOR AY 2015-16 HAS BEEN STAYED BY THE HIGHER COURT OR SOME APPEAL IS PENDING. LD. DR HAS ALSO F ILED WRITTEN SUBMISSIONS WHICH HAVE BEEN MADE PART OF THE RECORD BY RELYING ON HONBLE SUPREME COURT DECISIONS IN GE INDIA TECHNOL OGY CEN. (P) LTD. VS. CIT (2010) 327 ITR 456 (SC) & TRA NSMISSION CORPORATION OF A.P. LTD. & ANR. VS. CIT (1999) 239 ITR 587 (SC), WHICH HAVE BEEN DULY DEALT WITH AND FOUND DISTINGUISHABLE WITH THE FACTS OF THE PRESENT CASE BY THE COORDINAT E BENCH OF THE TRIBUNAL IN TAXPAYERS OWN CASE FOR AY 2015-16. 12. COORDINATE BENCH OF THE TRIBUNAL IN TAXPAYERS OWN CASE FOR AY 2015-16 (SUPRA) IN IDENTICAL FACTS AND CIRCUMSTANCES OF TH E CASE DECIDED THE ISSUE IN CONTROVERSY IN FAVOUR OF THE TAXPAYER BY SPECIFICALLY DISTINGUISHING THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CENTRICA INDIA OFFSHORE P. LTD. VS. CIT ITA NOS.2374 & 2375/DEL./2018 9 (SUPRA) RELIED UPON BY THE REVENUE BY RETURNING FOL LOWING FINDINGS:- 21. THE NEXT GRIEVANCE RELATES TO THE DISALLOWANCE OF RS. 56.58 CRORES FOR ALLEGED FAILURE OF NON-DEDUCTION O F TAX AT SOURCE. 22. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, TH E ASSESSING OFFICER SOUGHT CLARIFICATION OF SERVICES PERFORMED BY BOEING COMPANY USA, BOEING DEFENCE AUSTRALIA LTD, B OEING KOREA LLC AND WHETHER THE SALARY PAID TO EXPATRIATE S HAS BEEN INCLUDED IN THE TOTAL SALARY. FURTHER, THE ASSESSEE WAS ASKED TO EXPLAIN THE WORK PERFORMED BY THE EXPATRIATES. THE ASSESSEE WAS ASKED TO EXPLAIN THE REIMBURSEMENT OF EXPENSES TO B OEING COMPANY USA, BOEING INTERNATIONAL CORPORATION KOREA AND BOEING DEFENCE AUSTRALIA. THE ASSESSEE FURNISHED NE CESSARY DETAILS. IT WAS EXPLAINED THAT REIMBURSEMENT OF SAL ARY COST TO EXPATRIATE EMPLOYEES IS NOT TAXABLE AS FIS, BOTH UN DER THE PROVISIONS OF THE ACT AND RELEVANT DTAA, AND NO WIT HHOLDING TAX WAS REQUIRED ON THE SAME. 23. IT WAS FURTHER EXPLAINED THAT THE ASSESSEE WAS A REAL AND ECONOMIC EMPLOYER OF EXPATRIATE EMPLOYEES, AS THESE EMPLOYEES WERE UNDER THE CONTROL OF THE COMPANY WITHOUT ANY RELATION/CONNECTION WITH THE AES AND SALARY EXPENSE S HAVE BEEN BORNE BY THE ASSESSEE ON WHICH THE APPROPRIATE TAXE S WERE DULY DEDUCTED AND DEPOSITED U/S 192 OF THE ACT. IT WAS S TRONGLY CONTENDED THAT REIMBURSEMENT OF COST CHARGES OF SAL ARY OF EXPATRIATE EMPLOYEES IS NOT TAXABLE AS FTS/FIS. 24. THE ASSESSING OFFICER WAS NOT CONVINCED WITH TH E SUBMISSIONS OF THE ASSESSEE AND REFERRING TO THE TE RMS OF SECONDMENT AGREEMENT AND DRAWING SUPPORT FROM THE D ECISION OF THE HON'BLE HIGH COURT IN THE CASE OF CENTRICAINDIA OFFSHORE INDIA LTD 364ITR 336 AND FURTHER REFERRING TO VARIO US JUDICIAL DECISIONS, THE ASSESSING OFFICER FINALLY CAME TO TH E CONCLUSION THAT THE ASSESSEE HAS FAILED TO DEDUCT TAX AT SOURC E ON THE EXPENDITURE TOWARDS SALARIES AND OTHER ALLOWANCES A ND INVOKING THE PROVISIONS OF SECTION 40(A)(I) OF THE ACT, THE ASSESSING OFFICER MADE DISALLOWANCE OF RS. 56,58,19,799/-. 25. OBJECTIONS WERE RAISED BEFORE THE DRP BUT WERE OF NO AVAIL. 26. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE VE HEMENTLY STATED THAT THE ASSESSEE HAS DEDUCTED TAX AT SOURCE /S 192 OF THE ACT, AND, THEREFORE, THERE SHOULD NOT BE ANY DISALL OWANCE U/S 40(A)(I) OF THE ACT. RELIANCE WAS PLACED ON THE DEC ISION OF THE CO- ORDINATE BENCH IN THE CASE OF NEEMRANA HOTELS PVT L TD ITA NO. ITA NOS.2374 & 2375/DEL./2018 10 98/DEL/2017 ORDER DATED 10.07.2019. IT IS THE SAY O F THE LD. COUNSEL FOR THE ASSESSEE THAT SINCE TAX HAS BEEN DE DUCTED U/S 192 OF THE ACT, PROVISIONS OF SECTION 195 WILL NOT APPL Y. 27. DISTINGUISHING THE DECISION OF CENTRICA INDIA OFFSHORE INDIA LTD [SUPRA], THE LD. COUNSEL FOR THE ASSESSEE VEHEMENTLY STATED THAT THE DECISION IN THE CASE OF CENTRICA IN DIA OFFSHORE INDIA LTD WAS BASED UPON ENTIRELY DIFFERENT SET OF FACTS WHEREIN IN THAT CASE,THE INDIAN COMPANY WAS A NEWLY FORMED ENTITY AND DID NOT HAVE NECESSARY TRAINED HUMAN RESOURCES AND SCOPE OF WORK EMERGING FROM SERVICE AGREEMENT AND SECONDMENT AGREEMENT CLEARLY SHOWS THAT SECONDEES WERE SENT TO INDIA WITH THE KNOWLEDGE OF VARIOUS PROCESSES AND PRACTICES AN D ALSO WITH EXPERIENCE IN MANAGING AND APPLYING SUCH PROCESSES AND PRACTICES. 28. ON THESE FACTS, THE HON'BLE HIGH COURT WAS SAT ISFIED THAT THE SECONDARY EMPLOYEES ARE MAKING AVAILABLE THEIR EXPERIENCE AND SKILL IN MANAGING AND APPLYING THE PROCESSES. I T IS THE SAY OF THE LD. COUNSEL FOR THE ASSESSEE THAT IN SO FAR AS THE ASSESSEE IS CONCERNED, IT IS IN EXISTENCE SINCE 2003 AND THE EM PLOYEES RECRUITED OUTSIDE INDIA DO NOT POSSESS ANY SPECIFIC SKILL SET THAT IS NOT AVAILABLE WITH INDIAN EMPLOYEES. THE LD. COUNSE L FOR THE ASSESSEE EXPLAINED THAT IN IN-HOUSE ADMINISTRATION SUPPORT DIVISION, THE APPELLANT HAS 58 EMPLOYEES OUT OF WHI CH ONLY 6 ARE EXPATRIATE EMPLOYEES. THIS DIVISION RENDERS TRAVEL LOGISTICS, FINANCE AND ACCOUNTING SUPPORT ETC AND THE QUALIFIC ATIONS AND ROLE SHOW THAT SUCH EXPATRIATE EMPLOYEES CANNOT MAK E AVAILABLE ANY KNOWLEDGE. FURTHER RELIANCE WAS PLACED ON THE D ECISION OF THE CO- ORDINATE BENCH IN THE CASE OF AT & T COMMUN ICATION SERVICES INDIA PVT LTD 101 TAXMANNN.COM 105 [DELHI TRIB] 29. PER CONTRA, THE LD. DR STRONGLY SUPPORTED THE FINDINGS OF THE LOWER AUTHORITIES AND PLACED STRONG RELIANCE ON THE DECISION OF THE HON'BLE HIGH COURT IN THE CASE OF CENTRICA I NDIA OFFSHORE PVT LTD [SUPRA]. 30. WE HAVE GIVEN THOUGHTFUL CONSIDERATION TO THE ORDERS OF THE AUTHORITIES BELOW. WE HAVE ALSO CAREFULLY PERUS ED THE SALARY REIMBURSEMENT AGREEMENT, WHICH IS PLACED AT PAGES 2 96 ONWARDS OF THE PAPER BOOK, AND AS PER CLAUSE1.1, IT IS PROV IDED THAT THE SECONDEES HAVE EXPRESSED THEIR WILLINGNESS TO BE DE PUTED TO BIPICL [THE APPELLANT] AND TBC [AE] HAVE AGREED TO RELEASE THESE EMPLOYEES TO BIPICL. IT IS PROVIDED THAT TBC WILL FACILITATE PAYMENT OF SALARIES IN SECONDEES HOME COUNTRY ON BE HALF OF BICIPL. UNDER THE HEAD EMPLOYMENT STATUS, IT IS PRO VIDED THAT THE SECONDEES SHALL BE WORKING FOR BICIPL AND WILL BE UNDER SUPERVISION, CONTROL AND MANAGEMENT OF BICIPL AS AN EMPLOYEE OF BICIPL. ITA NOS.2374 & 2375/DEL./2018 11 31. IT IS CLEAR FROM THE AFORE-STATED RELEVANT CLA USES THAT THE SECONDEES WERE, IN FACT, IN EMPLOYMENT OF THE APPEL LANT AND AS PER THE TERMS, THE 'A' WAS PAYING SALARIES AT THE H OME COUNTRY OF THE SECONDEES AND, THEREFORE, THERE WAS REIMBURSEME NT BY THE APPELLANT. THESE FACTS CLEARLY SHOW THAT THE ASSESS EE HAS BEEN PAYING TO ITS OWN EMPLOYEES AND THIS FACT ALONE CLE ARLY DISTINGUISHES THE FACTS OF THE DECISION IN THE CASE OF CENTRICA INDIA OFFSHORE LTD [SUPRA]. 32. THE CO-ORDINATE BENCH IN THE CASE OF AT & T COMMUNICATION SERVICES INDIA PVT LTD. [SUPRA], DIST INGUISHING THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF CENTRICA INDIA OFFSHORE PVT LTD [SUPRA], HAS HELD A S UNDER: '30. THE DRP HAS AFFIRMED THE DECISION OF THE LD. A O BY HOLDING THAT THE ASSESSEE HAS DEDUCTED WITHHOLDING TAX ON SUBSTANTIAL PAYMENTS AND YET ARGUED THAT THE TAX IS NOT DEDUCTIBLE U/S 195 OF THE ACT AND PROVISION OF SECT ION 40(A)(I) CANNOT BE INVOKED IN THE CASE OF SAID PAYM ENT. 31. THE DRP HAS AFFIRMED THE DECISION OF THE AO BY HOLDING THAT THE ASSESSEE HAS DEDUCTED WITHHOLDING TAX ON SUBSTANTIAL PAYMENTS AND YET ARGUED THAT THE TAX IS NOT DEDUCTIBLE U/S 195 OF THE ACT AND PROVISION OF SECT ION 40(A)(I) CANNOT BE INVOKED IN THE CASE OF SAID PAYM ENT. 32. THE SPECIAL AUDITORS IN THEIR AUDIT REPORT HAVE WORKED OUT PARTICULARS OF PAYMENTS IN RESPECT OF WH ICH NO TDS WAS DEDUCTED U/S 40(A)(IA) OF THE ACT. CONSEQUE NTLY, AN AMOUNT OF RS. 54,06,328/- WAS NOT TO BE ALLOWED AS EXPENDITURE.' 33. WE HAVE ALSO PERUSED THE TDS CERTIFICATES, FOR MS 15CA AND 15CB, TAX DEDUCTED BY THE ASSESSEE AND ALL THES E DOCUMENTS ARE PART OF THE PAPER BOOK. THERE IS NO DISPUTE THA T THE ASSESSEE HAS DEDUCTED TAX AT SOURCE U/S 192 OF THE ACT. ON T HE GIVEN FACTS OF THE CASE, WE ARE OF THE CONSIDERED OPINION THAT THE PROVISIONS OF SECTION 195 OF THE ACT DO NOT APPLY. CONSIDERING THE FACTS OF THE CASE IN TOTALITY, IN LIGHT OF JUDICIAL DECISION S REFERRED TO HEREINABOVE, WE DO NOT FIND ANY MERIT IN THE DISALL OWANCE MADE BY THE ASSESSING OFFICER/DRP. WE, ACCORDINGLY, DIRE CT FOR DELETION OF ADDITION OF RS. 56.58 CRORES. 13. UNDISPUTEDLY, THE TAXPAYER WAS LIABLE TO PAY TH E SALARY TO THE EXPATRIATE EMPLOYEES EMPLOYED IN INDIA AND WORKING UNDER ITS CONTROL CREATING RELATIONSHIP OF EMPLOYER AND EMPLO YEES BETWEEN ITA NOS.2374 & 2375/DEL./2018 12 EXPATRIATE AND THE TAXPAYER AND THE SALARY PAYABLE TO THEM WAS ACCOUNTED FOR AS EXPENSE UNDER SALARIES & WAGES I N THE BOOKS OF ACCOUNT BY THE TAXPAYER AND HAS DEDUCTED THE TAX AT SOURCE U/S 192 OF THE ACT. IN THE GIVEN CIRCUMSTANCES, REIMBURSIN G THE AMOUNT TO AES WHO HAD DISBURSED THE SALARIES TO THE EMPLOYEES ON BEHALF OF THE TAXPAYER DOES NOT MAKE ANY CHANGE IN THE NATURE OF THE SALARY PAID TO THE EXPATRIATE. 14. HONBLE DELHI HIGH COURT IN CASE OF DIRECTOR OF INCOME- TAX VS. HCL INFOSYSTEMS LTD. 274 ITR 261 (DEL.) (SUPRA) ALSO DECIDED THE IDENTICAL ISSUE AS TO MAKING PAYMENT OF SALARY OR FEE FOR TECHNICAL SERVICES TO FOREIGN TECHNICIANS WAS P LACED AT THE DISPOSAL OF THE TAXPAYER AND HELD THAT TAXPAYER HAS RIGHTLY CONSIDERED THE PAYMENT AS SALARY AND HAD RIGHTLY DE DUCTED TAX AT SOURCE U/S 192 OF THE ACT AND EXPLANATION TO SECTIO N (9)(1)(VII) IS NOT APPLICABLE IN CASE OF SALARY BY RETURNING FOLLOWING FINDINGS:- THE INCOME-TAX DEPARTMENT AFTER A LAPSE OF SIX Y EARS ISSUED NOTICES REQUIRING THE ASSESSEE TO SHOW CAUSE WHY THE REMITTANCES MADE BY IT TO HEWLETT PACKARD (USA) IN RESPECT OF SALARIES PAID BY HP (USA) ON BEHALF OF THE ASSESSEE TO FOUR 'FOREIGN TECHNICIANS /I /EXPATRIATES, BE NOT TREATE D AS 'FEE FOR TECHNICAL SERVICES' AND WHY THE ASSESSEE SHOULD NOT BE TREATED AS AN ASSESSEE-IN-DEFAULT FOR NOT DEDUCTING TAX FROM T HE SAID PAYMENT UNDER SECTION 195 OF THE INCOME-TAX ACT, 19 61. CONSIDERING THE DOCUMENTS PLACED ON RECORD AND VARI OUS OTHER DOCUMENTS, THE INCOME-TAX APPELLATE TRIBUNAL ARRIVE D AT THE CONCLUSION THAT THE REMITTANCES WERE BY WAY OF 'SAL ARIES' AND WERE NOT 'FEE FOR TECHNICAL SERVICES' AS CLAIMED BY THE REVENUE. IT WAS SPECIFICALLY OBSERVED BY THE TRIBUNAL THAT T HE PRESUMPTION RAISED BY THE COMMISSIONER (APPEALS) COULD NOT BE S USTAINED 'IN VIEW OF THE FACT THAT IN SO FAR AS HP (USA) WAS CON CERNED, THE ITA NOS.2374 & 2375/DEL./2018 13 FEE FOR TECHNOLOGY TRANSFER AND FOR THE TRANSFER OF KNOW-HOW BY HP (USA) TO HP (INDIA) HAD ALREADY BEEN QUANTIFIED AND SEPARATELY RECEIVED. THE TECHNICIANS WERE DEPUTED A ND THE SERVICES WERE PLACED AT THE DISPOSAL OF THE ASSESSE E DURING THE DEPUTATION PERIOD, THE ASSESSEE WAS NOT ONLY LIABLE TO PAY THE SALARY BUT TO PAY THE TAX THEREON. ON APPEAL TO THE HIGH COURT: HELD, DISMISSING THE APPEAL, THAT THE TRIBUNAL RELY ING ON MATERIAL EVIDENCE, HAD HELD THAT THE ASSESSEE HAD R IGHTLY CONSIDERED THE PAYMENT AS SALARY AND HAD RIGHTLY DEDUCTED TAX AT SOURCE UNDER SECTION 192. THE EXPLANATION TO SECTION 9(1)(VII) MAKES IT CLEAR THA T SALARIES WOULD NOT FALL WITHIN THE EXPRESSION 'FEES FOR TECHNICAL SERVICES', THE TRIBUNAL WAS RIGHT AND NO SUBSTANTIAL QUESTION OF LAW AROSE FROM ITS ORDER. 15. IDENTICAL ISSUE HAS ALSO BEEN DECIDED BY THE HO NBLE HIGH COURT OF JUDICATURE AT BOMBAY IN CASE OF DIRECTOR OF INCOME-TAX (INTERNATIONAL TAXATION)-II, MUMBAI VS. M/S. MARKS & SPENCER RELIANCE INDIA PVT. LTD. IN ITA NO.893 OF 2014 ORDE R DATED 03.05.2017 BY RETURNING FOLLOWING FINDINGS :- 3] THE TRIBUNAL AFTER HAVING NOTED ALL THESE FACT S FOUND THAT THE FIRST APPELLATE AUTHORITY BY ITS ORDER DATED 28TH N OVEMBER 2011 FOR THE ASSESSMENT YEAR 2010-2011 RIGHTLY INTERFERED WI TH THE ORDER OF THE ASSESSING OFFICER. THE FINDING OF FACT OF THE T RIBUNAL IS THAT THE COMMISSIONER WAS RIGHT THAT THE ASSESSEE PAID SUM O F RS.4866187/- TO M/S. MARKS & SPENCER PLC TOWARDS SALARY EXPENDIT URE OF FOUR EMPLOYEES DEPUTED TO THE ASSESSEE FOR PROVIDING ASS ISTANCE IN THE AREA OF MANAGEMENT, TO SETTING UP OF BUSINESS, PROP ERTY SELECTION AND RETAIL OPERATIONS ETC. THERE WAS A SERVICE AGREEMEN T DRAWN UP AND FOR PROVIDING SUCH ASSISTANCE BETWEEN THESE TWO COM PANIES. IT WAS ESSENTIALLY A JOINT VENTURE. HAVING NOTED ALL THE C LAUSES IN THE AGREEMENT, THE TRIBUNAL RENDERED A FINDING OF FACT THAT THERE IS NO RENDERING OF SERVICE WITHIN THE MEANING OF THE DOUB LE TAX AVOIDANCE TREATY. THIS WAS A CLEAR CASE OF DEPUTING THE OFFIC IALS / EMPLOYEES FOR THE PROMOTION OF THE BUSINESS OF THE ASSESSEE WHICH IS INDIAN ARM OF M/S. MARKS & SPENCER PLC, UK. SINCE THE SAID PAYMEN T TO THE EMPLOYEES IS ALREADY SUBJECTED TO TAX IN INDIA, THE REFORE THERE IS NO QUESTION OF TREATING THE ASSESSEE IN DEFAULT FOR NO N DEDUCTION OF TAX AT SOURCE. ONCE THE FACTS WERE CLEAR, AS THESE, THE RE WAS NO ILLEGALITY IN THE ORDER OF THE COMMISSIONER OF INCOME TAX (APP EALS) WHICH WAS MAINTAINED BY THE TRIBUNAL. THE APPEAL OF THE R EVENUE WAS RIGHTLY DISMISSED BY THE TRIBUNAL. ITA NOS.2374 & 2375/DEL./2018 14 16. COORDINATE BENCH OF THE TRIBUNAL IN CASE OF AT&T COMMUNICATION SERVICES (INDIA) P. LTD. VS. DCIT IN ITA NO.354/DEL/2017 & ITA NO.1653/DEL/2016 ORDER DATED 31.10.2018 ALSO DECIDED THE IDENTICAL ISSUE BY OBSERVING THAT , WHEN THE PAYMENT TO NON-RESIDENT ENTITY IS IN THE NATURE OF PAYMENT CONSISTING OF INCOME CHARGEABLE UNDER THE H EAD SALARY THE TAXPAYER DOES NOT HAVE ANY TAX WITHHOLDING APPL ICATIONS UNDER SECTION 195 OF THE ACT. SO, WHEN THE SALARY IS SUB JECTED TO TDS U/S 192 OF THE ACT, SECTION 195 HAS NO APPLICATION. 17. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE, FOLLO WING THE DECISIONS RENDERED BY THE COORDINATE BENCH OF THE T RIBUNAL IN TAXPAYERS OWN CASE FOR AY 2015-16 IN THE IDENTICAL FACTS AND CIRCUMSTANCES AND BY FOLLOWING THE DECISIONS RENDER ED BY HONBLE DELHI HIGH COURT IN THE CASES OF CENTRICA INDIA OFFSHORE P. LTD. VS. CIT, DIRECTOR OF INCOME-TAX VS. HCL INFOSYSTEMS LTD. 274 ITR 261 (DEL.) (SUPRA), HONBLE HIGH COURT OF JUDICATURE AT BOMBAY IN CASE OF DIRECTOR OF INCOME-TAX (INTERNATIONAL TAXATION)-II, MUMBAI VS. M/S. MARKS & SPENCER RELIA NCE INDIA PVT. LTD. & COORDINATE BENCH OF THE TRIBUNAL IN AT&T COMMUNICATION SERVICES (INDIA) P. LTD. VS. DCIT (SUPRA), WHEN RELATIONSHIP OF EMPLOYER AND EMPLOYEES BETWEEN EXPA TRIATE EMPLOYEES AND THE TAXPAYER HAVE BEEN ESTABLISHED IN VIEW OF THE ITA NOS.2374 & 2375/DEL./2018 15 SECONDMENT AGREEMENT DULY DISCUSSED IN PARA 31 OF T HE ORDER PASSED IN TAXPAYERS OWN CASE FOR AY 2015-16 (SUPRA) AND THAT TAXPAYER HAS DULY DEDUCTED FULL TAX U/S 192 OF THE ACT BEING ON THE INCOME CHARGEABLE UNDER THE HEAD SALARIES, SECTIO N 195 OF THE ACT HAS NO APPLICABILITY. MOREOVER, WHEN EXPATRIATE EM PLOYEES SECONDED TO THE TAXPAYER HAVE WORKED AS EMPLOYEES O F THE TAXPAYER COMPANY, THEIR SALARY HAS BEEN RIGHTLY SUB JECTED TO SECTION 192 OF THE ACT AND EXPLANATION TO SECTION 9 (1)(VII) OF THE ACT WHICH APPARENTLY MAKES IT CLEAR THAT SALARY WOU LD NOT FALL WITHIN THE EXPRESSION FEE FOR TECHNICAL SERVICES HAS NO APPLICABILITY TO THE FACTS AND CIRCUMSTANCES OF THE CASE. CONSEQUENTLY, ADDITION MADE BY THE AO AND CONFIRMED BY THE LD. CIT (A) ON ACCOUNT OF DISALLOWANCE UNDER SECTION 40 (A)(I) OF THE ACT IS NOT SUSTAINABLE IN THE EYES OF LAW AND HENCE ORDERED TO BE DELETED. GROUNDS NO.1, 2, 2.1 & 2.2 ARE DETERMINED IN FAVOUR OF THE TAXPAYER. GROUNDS NO.3, 4, 5, 6, 7, 8, & 9 IN ITA NO.2374/DEL./2018 (AY 2012-13) GROUNDS NO.3, 4, 5, 6, 7 & 8 IN ITA NO.2375/DEL./2018 (AY 2013-14) 18. LD. TPO/CIT (A) MADE ADJUSTMENT OF RS.2,55,230/ - U/S 92CA OF THE ACT ON ACCOUNT OF OUTSTANDING RECEIVABL ES FROM AES. LD. AR FOR THE TAXPAYER CHALLENGED THE ADJUSTMENT O N THE GROUNDS ITA NOS.2374 & 2375/DEL./2018 16 INTER ALIA THAT OUTSTANDING RECEIVABLES AND PAYABLE S OF THE TAXPAYER WERE IN ACCORDANCE WITH THE ARMS LENGTH STANDARD A ND THAT INTEREST ON THE RECEIVABLES IS NOT A SEPARATE INTERNATIONAL TRANSACTION BECAUSE INTEREST PROPOSED TO BE CHARGED IS ALREADY BUILT IN PRICE CHARGED FOR SERVICES RENDERED AND FURTHER CONTENDED THAT IN ASSESSMENT YEAR 2011-12, THE TPO DID NOT IMPUTE ANY INTEREST ON OUTSTANDING RECEIVABLES AND AS SUCH, PRINCIPLE OF C ONSISTENCY NEEDS TO BE FOLLOWED AND RELIED UPON THE DECISIONS RENDER ED BY HONBLE SUPREME COURT IN THE CASES OF CIT VS. SHIVSAGAR ESTATE (2002) 257 ITR 59 (SC) & UNION OF INDIA VS. KAUMUDINI NARA YAN DALAL AND ANR. (2001) 249 ITR 219 (SC). 19. HOWEVER, ON THE OTHER HAND, LD. DR FOR THE REVE NUE RELIED UPON THE ORDER PASSED BY THE AO/CIT(A). 20. WHEN UNDISPUTEDLY IDENTICAL ISSUE HAS ALREADY B EEN DECIDED BY THE TPO IN FAVOUR OF THE TAXPAYER BY NOT IMPUTIN G ANY INTEREST ON OUTSTANDING RECEIVABLES, THE TPO IN THE INSTANT CASE HAS NO OPTION EXCEPT TO FOLLOW THE RULE OF CONSISTENCY, AS HAS BEEN HELD BY THE HONBLE SUPREME COURT IN CASE OF CIT VS. SHIV SAGAR ESTATE (SUPRA) THAT WHEN THE REVENUE HAS ACCEPTED THE CONT ENTION OF THE APPLICANT IN THE EARLIER YEAR, IT WOULD NOT BE ENTITLED TO CHALLENGE THAT CONTENTION IN SUBSEQUENT YEARS BY RE TURNING FOLLOWING FINDINGS :- ITA NOS.2374 & 2375/DEL./2018 17 HAVING REGARD TO THE FACT THAT NO APPEAL HAS BEEN CARRIED AGAINST THE ORDERS OF IDENTICAL ASSESSMENT FOR THE PREVIOUS YEAR, THE CIVIL APPEALS AND SPECIAL LEAVE PETITIONS ARE D ISMISSED. 21. SIMILARLY, IN CASE OF UOI VS. KAUMUDINI NARAYAN DALAL & ANR. (SUPRA), HONBLE SUPREME COURT HAS HELD THAT IF TH E REVENUE HAS ACCEPTED THE POINT RAISED BY THE TAXPAYER IT IS SUBSEQUENTLY BARRED FROM CHALLENGING THE SAME POINT BY RETURNING FOLLOWING FINDINGS :- 'THE ORDER UNDER CHALLENGE IN THIS APPEAL BY THE RE VENUE FOLLOWED THE EARLIER JUDGMENT OF THE SAME HIGH COUR T IN THE CASE OF PRADIP RAMANLAL SHETH US. UNION OF INDIA [1993] 204 ITR 866. LEARNED COUNSEL FOR THE REVENUE STATES THAT TH E PAPERS BEFORE US SUGGEST THAT A SPECIAL LEAVE PETITION WAS PREFERRED AGAINST THAT JUDGMENT BUT HE HAS NO INSTRUCTIONS AS TO WHAT HAPPENED THEREAFTER. LEARNED COUNSEL FOR THE RESPON DENTS STATES THAT THEIR ENQUIRIES WITH THE REGISTRY REVEAL THAT NO APPEAL AGAINST THAT JUDGMENT WAS PREFERRED BY THE REVENUE. IF THE REVENUE DID NOT ACCEPT THE CORRECTNESS OF TH E JUDGMENT IN THE CASE OF PRADIP RAMANLAL SHETH {1993J 204 ITR 86 6 (GUJ), IT SHOULD HAVE PREFERRED AN APPEAL THERE AGAINST AND I NSTRUCTED COUNSEL AS TO WHAT THE FATE OF THAT APPEAL WAS OR W HY NO APPEAL WAS FILED. IT IS NOT OPEN TO THE REVENUE TO ACCEPT THAT JUDGMENT IN THE CASE OF THE ASSESSEE IN THAT CASE AND CHALLENGE ITS CORRECTNESS IN THE CASE OF OTHER ASSESSEES WITHOUT JUST CAUSE. FOR THIS REASON, WE DECLINE TO CONSIDER THE CORRECTNESS OF THE DECIS ION OF THE HIGH COURT IN THIS MATTER AND DISMISS THE CIVIL APPEAL. 22. SO, IN VIEW OF THE MATTER, WE ARE OF THE CONSID ERED VIEW THAT WHEN AO/TPO HAVE NOT BROUGHT ON RECORD ANY DISTINGU ISHABLE FACT THEY ARE REQUIRED TO FOLLOW THE RULE OF CONSISTENCY BY NOT IMPUTING ANY INTEREST TO THE OUTSTANDING RECEIVABLES. SO, T HIS ISSUE IS REMITTED BACK TO THE TPO/AO TO DECIDE AFRESH BY FOL LOWING THE RULE OF CONSISTENCY. GROUNDS NO.3, 4, 5, 6, 7, 8 & 9 IN ITA NOS.2374 & 2375/DEL./2018 18 ITA NO.2374/ DEL. /2018 AND GROUNDS NO.3, 4, 5, 6, 7 & 8 IN ITA NO.2375/DEL./2018 ARE DETERMINED IN FAVOUR OF T HE TAXPAYER FOR STATISTICAL PURPOSES. 23. RESULTANTLY, BOTH THE APPEALS BEING ITA NO.2374 /DEL/2018 & ITA NO.2375/DEL/2018 FOR AYS 2012-13 & 2013-14 RESPECTIVELY ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 27 TH DAY OF NOVEMBER , 2020. SD/- SD/- (ANIL CHATURVEDI) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 27TH DAY OF NOVEMBER, 2020 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.DRP 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.