M/s. Wipro GE Healthcare Private Limited, Bangalore V. Deputy Commissioner Of Income Tax, Circle- 7(1)(2), Bangalore

ITA 2442/BANG/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1673 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 08-03-2021
• Assessment Year: 2015-2016
• Appeal Filed On: 29-11-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Transfer pricing; Principle of natural justice; International transaction; TDS; Set aside
• Section: 90; 143(3); 234B; 40(a)(ia); 144C; 13; 92CA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI CHANDRA POOJARI , ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER IT(TP)A NO.2442/BANG/2019 ASSESSMENT YEAR : 2015 16 WIPRO GE HEALTHCARE PVT. LTD., NO.4, KADUGODI INDUSTRIAL AREA, WHITEFIELD, BENGALURU-560 067. (PRESENTLY AT PRESTIGE SHANTHINEKATAN, 6 TH FLOOR, CRESCENT-4, ITPL, WHITEFILED, BENGALURU-560 048. PAN AAACW 1685 J VS. THE DY. COMMISSIONER INCOME TAX, CIRCLE-7(1)(2), BENGALURU. APPELLANT RESPONDENT APPELLANT BY : SHRI K.R PRADEEP & SMT. GIRIJA G.P, ADVOCATES RESPONDENT BY : MS. NEERA MALHOTRA, CIT (DR) DATE OF HEARING : 10-12-2020 DATE OF PRONOUNCEMENT : 11-12-2020 ORDER PER BEENA PILLAI, JUDICIAL MEMBER PRESENT APPEAL HAS BEEN FILED BY ASSESSEE AGAINST F INAL ASSESSMENT ORDER DATED 31/10/19 PASSED BY LD.ACIT C IRCLE 7(1)(2) UNDER SECTION 143(3) READ WITH SECTION 144C (13) OF THE ACT, FOR ASSESSMENT YEAR 2015-16 ON FOLLOWING GROUN DS OF APPEAL: 1. THAT THE ORDER OF THE ASSESSING OFFICER (AO),TRANSF ER PRICING OFFICER (TPO), THE DIRECTIONS OF THE DISPUTE RESOLU TION PANEL PAGE 2 OF 13 IT(TP)A NO.2442/BANG/2019 (DRP) AND THE ORDER OF THE TRANSFER PRICING OFFICER IN SO FAR AS IT IS AGAINST THE APPELLANT IS AGAINST THE LAW, FAC TS, CIRCUMSTANCES, NATURAL JUSTICE, EQUITY, WITHOUT JUR ISDICTION, BAD IN LAW AND ALL OTHER KNOWN PRINCIPLES OF LAW. 2. THAT THE TOTAL INCOME COMPUTED AND THE TOTAL TAX COMPUTED IS HEREBY DISPUTED. 3. THAT THE FINDINGS, REASONS, CONCLUSIONS AND DIRE CTIONS OF DISPUTE RESOLUTION PANEL (DRP) U/S 144C ARE UNSUSTA INABLE IN LAW REQUIRES TO BE SET ASIDE. CONSEQUENTLY THE ADDITION S BASED ON SUCH DIRECTIONS ALSO REQUIRES TO BE SET ASIDE. 4. THE DRP ERRED IN NOT CONSIDERING THE RELEVANT MA TERIALS, EVIDENCES, DATA AND RELEVANT LAW. THE DIRECTIONS. I SSUED ARE WITHOUT APPLICATION OF MIND. 5. THAT THE ORDERS AO/TPO DIRECTIONS OF THE DRP VIO LATES THE PRINCIPLES OF JUDICIAL DISCIPLINE AS THE BINDING NA TURE OF THE ORDERS OF THE HIGHER APPELLATE AUTHORITIES HAVE BEEN TOTAL LY IGNORED. 6. THAT THE ORDER OF THE AO/TPO/DRP AND THE DIRECTI ONS GIVEN THEREIN ARE BAD IN LAW AND NOT AS PER LAW REQUIRES TO BE CANCELLED. 7. THAT THE AO/TPO/DRP ERRED IN NOT PROVIDING ADEQU ATE AND SUFFICIENT OPPORTUNITY AS REQUIRED UNDER LAW THUS V IOLATING THE PRINCIPLE OF NATURAL JUSTICE, HENCE ON THIS GROUND ALONE THE ORDERS REQUIRES TO BE ANNULLED. ISSUE OF TRANSFER PRICING 8. THAT THE ORDER OF THE TRANSFER PRICING OFFICER I S WITHOUT JURISDICTION, AGAINST THE LAW, FACTS, CIRCUMSTANCES , NATURAL JUSTICE, EQUITY AND ALL OTHER KNOWN PRINCIPLES OF LAW. 9.THE LEARNED DRP ERRED IN OVERLOOKING THE FACT THA T THE ENTIRE OBJECTIONS FILED BY THE APPELLANT HAVE NOT BEEN CON SIDERED BY THE TPO BEFORE PASSING ORDER U/S 92CA. 10.THE APPELLANT DENIES THE TAX LIABILITY ON THE S URPLUS ARISING ON THE COMPUTATION OF ARMS LENGTH PRICE FOR THE IMPUGN ED ASSESSMENT YEAR. 11. (I) THE LEARNED AO ERRED IN BRINGING TO TAX A S UM OF RS. 246,02,17,944/- AS OUTLINED BELOW IN THE TABLE UNDE R SECTION 92CA OF THE ACT AS PER THE COMMUNICATION/ ORDER OF THE T RANSFER PRICING OFFICER AND THE DIRECTIONS OF DRP, PAGE 3 OF 13 IT(TP)A NO.2442/BANG/2019 SL.NO. DESCRIPTION AMOUNT (IN RS.) 1 ARMS LENGTH PRICE DIFFERENCE IN THE ROYALTY PAID 7,29,91,441/ - 2 ARMS LENGTH PRICE DIFFERENCE IN THE DISTRIBUTION SEGMENT 175,84,64,764/- 3 ARMS LENGTH PRICE DIFFERENCE IN THE SOFTWARE SERVICES SEGMENT 70,17,53,230/- 4 ARMS LENGTH PRICE DIFFERENCE IN THE SUPPORT SERVICES 4,94,14,855/ - (II) THE LEARNED TPO/DRP ERRED IN DISREGARDING THE USE OF MULTIPLE YEAR DATA AND OUGHT TO HAVE ACCEPTED THE USE OF CON TEMPORANEOUS DATA AS PER THE TRANSFER PRICING REGULATIONS DUE TO NON AVAILABILITY OF CURRENT YEAR DATA IN PUBLIC DOMAIN AT THE TIME O F PREPARING THE REPORT. III)THE LEARNED TPO/DRP ERRED IN REJECTING COMPANIE S HAVING DIFFERENT FINANCIAL YEAR ENDING OR WHOSE DATA DOES NOT FALL WITHIN THE 12 MONTH PERIOD OF IMPUGNED FINANCIAL YEAR. IV) THE LEARNED TPO/DRP ERRED IN NOT CONSIDERING WO RKING CAPITAL ADJUSTMENTS. V)THE LEARNED AO / TPO / DRP ERRED IN FAILING TO RE LY ON BINDING DECISIONS OF THE HON'BLE ITAT IN APPELLANTS OWN CAS E FOR THE ASSESSMENT YEARS 2002- 03 TO 2004 - 05, 2008-09 AND SUBSEQUENT ORDERS OF THE ITAT FOR AY: 2005-06 & 2006-07. 12. (I) THE LEARNED AO / TPO / DRP ERRED IN MAKING ADJUSTMENT TOWARDS THE ROYALTY FOR USE OF TECHNOLOGY AMOUNTING RS.7,29,91,441/- WITHOUT DETERMINING THE COMPARABLE TRANSACTION IN THE PUBLIC DOMAIN AS PRESCRIBED UNDER THE ACT AN D RULES. II) THE LEARNED AO/ TPO/DRP HAVE FAILED TO IDENTIFY A COMPARABLE IN TERMS OF RULE 10B(3). III) THE 1D.AO/TPO/DRP ERRED IN FAILING TO RELY ON DECISION OF THE ITAT IN APPELLANT'S OWN CASE FOR THE YEARS 2002-03 TO 2004-05 AND SUBSEQUENT ORDERS OF THE ITAT FOR AY:2005-06 & 2006 -07. 13.(I) THE LEARNED AO / TPO / DRP ERRED IN MAKING A DJUSTMENT TOWARDS THE ARMS LENGTH PRICE DIFFERENCE IN THE DIS TRIBUTION SEGMENT AMOUNTING RS.175,84,64,764/-. PAGE 4 OF 13 IT(TP)A NO.2442/BANG/2019 II. THE LEARNED AO / TPO / DRP ERRED IN MAKING ADJU STMENT ON TRANSACTIONS BEYOND AE TRANSACTIONS, THUS, THE ADJU STMENT PROPOSED INCLUDES NON AE TRANSACTIONS. III. THE LEARNED AO / TPO / DRP ERRED IN WRONGLY AD OPTING THE FINANCIAL RESULTS OF THE ASSESSEE. IV.THE LEARNED AO / TPO / DRP ERRED IN COMPARING TH E APPELLANT'S DISTRIBUTION MARGIN WITH COMPARABLES WHICH ARE NOT IN THE BUSINESS OF TRADING/ DISTRIBUTION. V. THE LEARNED AO / TPO / DRP ERRED IN NOT FOLLOWIN G THEIR OWN ORDERS PASSED FOR THE EARLIER ASST. YEARS ON THIS I SSUE. VI. THE SELECTION OF THE METHOD BY THE LEARNED AO / TPO / DRP IS NOT AS PER LAW. VII. THE LEARNED AO / TPO / DRP ERRED IN NOT GRANTI NG THE VARIANCES DEDUCTION ENVISAGED IN THE ACT AND CIRCUL AR. VIII. THE LEARNED AO / TPO / DRP ERRED IN NOT CARRY ING OUT THE ADJUSTMENTS AS REQUIRED UNDER LAW AS WELL AS THE FA CTS. IX. THE LEARNED AO/TPO/DRP HAVE FAILED TO IDENTIFY A COMPARABLE IN TERMS OF RULE 10B(3). X. THE LEARNED TPO/DRP ERRED IN REJECTING CERTAIN C OMPARABLES ON UNSUSTAINABLE AND UNTENABLE GROUNDS/REASONS WHILE C ONSIDERING COMPARABLES WHICH FAILED TO MEET THE FILTERS /CRITE RIA AS REQUIRED UNDER LAW. XI) THE AC/TPC/DRP ERRED IN REJECTING THE FOLLOWING COMPARABLES SELECTED BY THE ASSESSEE 1) ADVANCED MICRONICS DEVICES LTD 2) CENTRAL SCIENTIFIC SUPPLIES CO LTD 3) LYKA EXPORTS LTD 4) FRONTLINE ELECTRO MEDICAL LTD 5) MAX MEDICAL SERVICES LTD 6) ADS DIAGNOSTIC LTD XII) THE AO/TPO/DRP ERRED IN CONSIDERING THE FOLLOW ING COMPARABLES OVERLOOKING/REJECTING THE OBJECTIONS MA DE BY THE ASSESSEE 1) INFRA MEDICA EXIM PVT LTD 2) BIOMEX INSTRUMENTS PVT LTD 3) VINOD MEDICAL SYSTEMS PVT LTD 4) WELDON BIOTECH (INDIA) PVT LTD 5) IRIS HEALTHCARE TECHNOLOGIES PVT LTD PAGE 5 OF 13 IT(TP)A NO.2442/BANG/2019 6) AFFIANCE MEDI TECH PVT LTD 7) CYRONICS INSTRUMENTS PVT LTD 8) PEERLESS BIOTECH PVT LTD 9) SCHILLER HEALTHCARE INDIA PVT LTD 10) PINNACLE BIOMED PVT LTD 1 1)MAQUET MEDICAL INDIA PVT LTD 12)NARANG MEDICAL LTD 13)KALELKER SURGICALS PVT LTD XIII) THE LEARNED AC / TPO / DRP ERRED IN FAILING T O RELY ON DECISION OF THE ITAT IN ASSESSEE'S OWN CASE FOR THE YEARS 2002 - 03 TO 2004 - 05 AND SUBSEQUENT ORDERS OF THE HAT FOR O THER ASSESSMENT YEARS. XIV.THE LEARNED AO / TPO / DRP ERRED IN ADOPTING TN MM AS THE MAM IGNORING THE FINDINGS OF ITAT IN THE APPELLANTS OWN CASE FOR EARLIER YEARS AND ACCEPTED BY DEPARTMENT ON THE SAM E ISSUE. XV.THE LEARNED TPO / DRP HAVE FAILED TO APPLY THE P ROVISIONS OF RULE 10B(4)&(5) & 10CA(2) WHILE SELECTING THE CRITE RIA AND FILTERS: XVI. THE LEARNED AO / TPO / DRP ERRED IN NOT CARRYI NG OUT THE ADJUSTMENTS LIKE RISK, WORKING CAPITAL, ETC., AS RE QUIRED UNDER LAW AS WELL AS THE FACTS. XVII.THE LEARNED TPO/DRP ERRED IN REJECTING THE PRI CE PER UNIT ADJUSTMENT CARRIED OUT BY THE APPELLANT XVIII. THE LEARNED TPO/DRP ERRED IN REJECTING THE I MPORT DUTY ADJUSTMENT CARRIED OUT BY THE APPELLANT XIX.THE LEARNED TPO/DRP ERRED IN NOT CONSIDERING TH E AFTER SALES SUPPORT SERVICE SEGMENT WHILE DETERMINING OPERATING MARGIN OF DISTRIBUTION SEGMENT. XXI. THE LEARNED TPO/DRP ERRED IN REJECTING THE COR ROBORATIVE ANALYSIS PROVIDED BY THE APPELLANT. XXII) THE LEARNED TPO./DRP ERRED IN APPLYING THE TR ADING INCOME THRESHOLD OF 75% TO SALES TO SELECT COMPARABLE. COM PANIES. 14.(I) THE LEARNED AO / TPO / DRP ERRED IN MAKING A DJUSTMENT TOWARDS THE ARMS LENGTH PRICE DIFFERENCE IN THE SOF TWARE DEVELOPMENT SEGMENT AMOUNTING RS.70,17,53,230/-. II) THE LEARNED AO / TPO / DRP ERRED IN SELECTING T HE COMPARABLES. THE SELECTION OF COMPARABLES DOES NOT CONFIRM TO THE I.T. 1RULES. FURTHER IT ALSO DOES NOT COMPLY WITH T HE CASE LAWS ON THIS POINT. PAGE 6 OF 13 IT(TP)A NO.2442/BANG/2019 III)THE LEARNED AO / TPO / DRP ERRED IN NOT CARRYIN G OUT THE ADJUSTMENTS LIKE RISK, WORKING CAPITAL, ETC., AS RE QUIRED UNDER LAW AS WELL AS THE FACTS. IV THE LEARNED AO / TPO / DRP ERRED IN WRONGLY ADOP TING THE FINANCIAL RESULTS OF THE ASSESSEE. V)THE LEARNED AO/TPO/DRP HAVE FAILED TO IDENTIFY A COMPARABLE IN TERMS OF RULE 10B(3). VI)THE LEARNED TPO/DRP ERRED IN REJECTING CERTAIN C OMPARABLES ON UNSUSTAINABLE AND UNTENABLE GROUNDS/REASONS WHILE CONSIDERING COMPARABLES WHICH FAILED TO MEET THE FI LTERS /CRITERIA AS REQUIRED UNDER LAW. VII) THE LEARNED AO/TPO/DRP ERRED IN NOT GRANTING T HE VARIANCES DEDUCTION ENVISAGED IN THE ACT AND CIRCULAR. THE LE ARNED TPO/DRP HAVE FAILED TO APPLY THE PROVISIONS OF RULE 10B(4)&(5) & 10CA(2) WHILE SELECTING THE CRITERIA AND FILTERS. VIII)THE LEARNED TPO / DRP ERRED IN REJECTING R & D EXPENSE MORE THAN 3% ON TURNOVER TO ELIMINATE COMPANIES ENGAGED IN R & D ACTIVITIES. IX)THE LEARNED TPO / DRP ERRED IN APPLYING THE SOFT WARE DEVELOPMENT SERVICE INCOME THRESHOLD OF 75% TO SALE S TO SELECT COMPARABLE COMPANIES. X)THE LEARNED TPO / DRP ERRED IN REJECTING THE COMP ARABLE COMPANIES HAVING RATIO OF EMPLOYEE COST TO SALES LE SS THAN 25%. XI)THE LEARNED TPO/DRP ERRED IN REJECTING THE FOLLO WING COMPANIES AS COMPARABLES REJECTING THE SUBMISSIONS / OBJECTIO NS MADE BY THE APPELLANT. A) CAT TECHNOLOGIES LTD B) AKSHAY SOFTWARE TECHNOLOGIES LTD C) CAMBRIDGE TECHNOLOGY ENTERPRISES LTD D) SPRY RESOURCES INDIA PVT LTD E) RSYSTEMS INTERNATIONAL LTD F) HELLOS & MATHESON INFORMATION TECHNOLOGY LTD G) BELLS SOFTECH LTD H) MINVESTA INFOTECH I) NEW-AGE BIZSOFT SOLUTIONS PVF LTD J) 12T2 INDIA LTD K) DAFFODIAL SOFTWARE LTD PAGE 7 OF 13 IT(TP)A NO.2442/BANG/2019 XII) THE LEARNED TPO/DRP ERRED IN CONSIDERING THE F OLLOWING COMPANIES AS COMPARABLES REJECTING THE SUBMISSIONS / OBJECTIONS MADE BY THE APPELLANT. A) KALS INFORMATIOM SYSTEMS LTD B) TATA ELXSI LTD (SEG) C) RHEAL SOFTWARE PVT LTD D) MINDTREE LTD E) L & T INFOTECH LTD F) INFOBEANS TECHNOLOGIES LTD G) NIHILENT TECHNOLOGIES LTD H) ASPIRE SYSTEMS (INDIA) PVT LTD I) INTEQ SOFTWARE PVT LTD J) INFOSYS LTD K) THIRDWARE SOLUTIONS LTD I) CYBAGE SOFTWARE PVT LTD 15. (I) THE LEARNED AO / TPO / DRP ERRED IN MAKING ADJUSTMENT TOWARDS THE ARM'S LENGTH PRICE DIFFERENCE IN THE SU PPORT SERVICES/SPECIFIED DOMESTIC TRANSACTIONS AMOUNTING RS.4,94,14,855/-. II)THE LEARNED TPO / DRP ERRED IN MAKING ADJUSTMENT ON SUPPORT SERVICES/SPECIFIED DOMESTIC TRANSACTIONS OVERLOOKIN G THE STATUTORY REPORTS AND THESE REPORTS CANNOT BE FOUND FAULT WIT H IN THE ABSENCE OF ANY COGENT OR CONTRARY EVIDENCE. III. THE LEARNED AO / TPO / DRP ERRED IN NOT IDENTI FYING A COMPARABLE AS REQUIRED UNDER LAW. IV.THE LEARNED AO / TPO / DRP ERRED IN NOT CONSIDER ING THE DETAILS, INFORMATION AND EVIDENCES FURNISHED BY THE ASSESSEE. OTHER ISSUES/ADDITIONS/DISALL0WANCES 16. THE LEARNED AO / DRP ERRED IN DISALLOWING PROVI SION FOR ONEROUS CONTRACT AMOUNTING TO RS.60,00,000/-. 17. THE LEARNED AO / DRP ERRED IN DISALLOWING THE S UM OF RS. 7,49,33,375/- BEING 30% OF RS.24,97,77,917/- FOR NO N DEDUCTION OF TAX AT SOURCE U/S.40(I)(IA) OF THE ACT ON THE FO LLOWING PROVISION FOR EXPENSE PAGE 8 OF 13 IT(TP)A NO.2442/BANG/2019 EXPENSES UNDER WHICH PROVISIONS ARE MADE AND NO TDS DEDUCTED AMOUNT (RS.) ADVERTISEMENT 10,93,276 LEGAL AND PROFESSIONAL CHARGES 16,72,58,556 REPAIRS AND MAINTENANCE 57,58,470 MISCELLANEOUS EXPENSES ( - )01,39,11,153 DEALER COMMISSION 8,95,78,767 TOTAL 24,97,77,917 18. THE AO/DRP FAILED TO APPRECIATE AND CONSIDER TH AT IF PAYEES/RECEIVERS/DEDUCTEES HAVE PAID THE TAX THEN N O DISALLOWANCE CAN BE MADE U/S 40(A)(IA) OF THE ACT. 19. THE ABOVE DISALLOWANCES HAVE BEEN MADE WITHOUT PROVIDING SUFFICIENT AND ADEQUATE OPPORTUNITY AS REQUIRED UND ER LAW AND THE ACT. ON THIS GROUND ALONE THE ABOVE DISALLOWANCES R EQUIRES TO BE DELETED. 20. THE LEARNED AO/DRP ERRED IN NOT GRANTING RELIEF U/S 90 OF THE ACT TO THE EXTENT OF RS.11,72,448/- AND NO REASONS HAVE BEEN GIVEN FOR NOT GIVING CREDIT FOR THE ABOVE AMOUNT. 21. THE LEARNED AO/DRP ERRED IN NOT GIVING TDS CRED IT AMOUNTING TO RS.1,14,36,741/- AND NO REASONS OR EXPLANATIONS HAVE BEEN GIVEN FOR DENYING THE CREDIT. ISSUE OF INTEREST U/S.234 B&C 22. THE APPELLANT DENIES THE LIABILITIES FOR INTERE ST U/S 234B & C OF THE ACT. FURTHER PRAYS THAT THE INTEREST IF ANY SHO ULD BE LEVIED ONLY ON RETURNED INCOME. NO OPPORTUNITY HAS BEEN GIVEN B EFORE THE LEVY OF INTEREST U/S 234 B & C OF THE ACT. 23. WITHOUT PREJUDICE TO THE APPELLANTS RIGHT OF SE EKING WAIVER BEFORE APPROPRIATE AUTHORITY THE APPELLANT BEGS FOR CONSEQUENTIAL RELIEF IN THE LEVY OF INTEREST U/S 234B & C OF THE ACT. 24. FOR THE ABOVE AND OTHER GROUNDS AND REASONS WHI CH MAY BE SUBMITTED DURING THE COURSE OF HEARING OF THIS APPE AL, THE ASSESSEE REQUESTS THAT THE APPEAL BE ALLOWED AS PRAYED AND J USTICE BE RENDERED, PAGE 9 OF 13 IT(TP)A NO.2442/BANG/2019 2. BRIEF FACTS OF THE CASE ARE AS UNDER: ASSESSEE IS JOINT VENTURE BETWEEN GENERAL ELECTRIC CO USA AND WIPRO LTD. IT HAS BEEN STATED TO BE ENGAGED IN CONT RACT MANUFACTURING OF MEDICAL DIAGNOSTIC IMAGING EQUIPME NT, ULTRASOUND SYSTEMS, PATIENT MONITORING AND X-RAY SY STEMS, PROVISION OF ENGINEERING AND SOFTWARE SERVICES AND DISTRIBUTION OF MEDICAL DIAGNOSTIC IMAGING EQUIPMENT, THERAPY EQUIP MENT AND LIFE SCIENCE PRODUCTS. DURING THE YEAR UNDER CONSID ERATION ASSESSEE ENTERED INTO INTERNATIONAL TRANSACTIONS WI TH ITS AE AND SPECIFIED DOMESTIC TRANSACTIONS. 3. LD.TPO/AO PASSED THE ORDER BY MAKING FOLLOWING A DDITIONS: 1. TP ADJUSTMENT ROYALTY DISTRIBUTION SEGMENT SOFTWARE DEVELOPMENT SEGMENT SUPPORT SERVICES (SPECIFIED DOMESTIC TRANSACTIONS ) 2. PROVISION FOR ONEROUS CONTRACT 3. DISALLOWANCE MADE U/S/40(A(IA) FOR NON DEDUCTION OF TAX ADVERTISEMENT EXPENSES LEGAL AND PROFESSIONAL EXPENSES REPAIRS AND MAINTAINANCE MISCELLANEOUS EXPENSES DEALER COMMISSION 4. RELIEF UNDER 90 5. TDS CREDIT PAGE 10 OF 13 IT(TP)A NO.2442/BANG/2019 4. AT THE OUTSET, ADMITTEDLY IT IS SUBMITTED THAT ALL ISSUES RAISED BY ASSESSEE IN PRESENT APPEAL EXCEPT FOR DIS ALLOWANCE OF PROVISION FOR ONEROUS CONTRACT ARE SQUARELY COVERED BY DECISIONS OF THIS TRIBUNAL IN ASSESSEE'S OWN CASE FOR ASSESSM ENT YEARS 2005-06 TO 2014-15. IT HAS BEEN SUBMITTED THAT ALL ISSUES HAVE BEEN SET ASIDE BY THIS TRIBUNAL TO LD.TPO FOR RE-ADJUDICATION AFRESH. 5. WE HAVE PERUSED SUBMISSIONS ADVANCED BY BOTH SI DES IN THE LIGHT OF THE RECORDS PLACED BEFORE US. 6. IT HAS BEEN SUBMITTED THAT GROUND NO. 1-12 ARE GENERAL IN NATURE AND THEREFORE, DO NOT REQUIRE ADJUDICATION. LD.AR HAS FILED BEFORE US A CHART DETAILING MANNER IN WHICH THE GRO UNDS IN PRESENT APPEAL ARE COVERED BY ORDERS OF THIS TRIBUNAL FOR EARLIER ASSESSMENT YEARS ANNEXED AS ANNEXURE-I. AS SUBMITTE D BY LD.AR, WE HAVE PERUSED ALL DECISIONS PASSED BY THIS TRIBUNAL IN ASSESSEE'S OWN CASE FOR ASSESSMENT YEARS 2005-06 TO 2014-15 AND FOUND THAT ISSUES IN PRESENT APPEAL ARE COMMON WITH EARLIER YEARS AND HAVE BEEN SET ASIDE TO LD.TPO ON THE GROU ND THAT LD.TPO AS WELL AS DRP FAILED TO CONSIDER OBJECTIONS RAISED BY ASSESSEE. 7. IN RESPECT OF TRANSFER PRICING ADDITION MADE BY LD.AO. IT IS OBSERVED THAT DRP/TPO FOR YEAR UNDER CONSIDERATION DID NOT CONSIDER OBJECTIONS RAISED BY ASSESSEE AGAINST COMP ARABLES SELECTED BY LD.TPO AND SIMPLY FOLLOWED DRP DIRECTIO NS ISSUED FOR AY 2014-15. AS AY: 2014-15 HAS BEEN SET ASIDE BY TH IS TRIBUNAL , PAGE 11 OF 13 IT(TP)A NO.2442/BANG/2019 WE DEEM IT FIT AND PROPER TO REMIT THE ISSUES TO F ILE OF LD.AO/TPO FOR TAKING NECESSARY ACTION OF PASSING A SPEAKING O RDER BY GRANTING FAIR OPPORTUNITY TO ASSESSEE OF BEING HEAR D. IT IS ALSO OBSERVED THAT ALL THESE ARE PENDING BEFORE LOWER AU THORITIES AND WE FIND NO REASON ADJUDICATE THESE ISSUES AT THIS S TAGE. ACCORDINGLY, FOLLOWING EARLIER ORDERS PASSED BY THI S TRIBUNAL IN ASSESSEE'S OWN CASE, WE SET ASIDE ALL ISSUES TO LD. AO FOR RE- ADJUDICATION OF ISSUES IN THE LIGHT' OF THE FINDING S GIVEN IN EARLIER YEARS. (REFER ANNEXURE 1). 7. IN RESPECT OF GROUND NO.16, BEING DISALLOWANCE O F PROVISION FOR ONEROUS CONTRACT AMOUNTING TO RS.60,00,000/-. LD.AR COULD NOT PROVE FROM THE RECORDS THAT THE SAME HAS BEEN D EBITED TO PROFITS & LOSS ACCOUNT. ACCORDINGLY WE REJECT THIS GROUND. HOWEVER, ASSESSEE MAY CLAIM SUCH AMOUNT IN RELEVANT YEAR OF ACCRUAL. ACCORDINGLY GROUND NO.16 SANDS DISMISSED. 8. IN THE RESULT APPEAL FILED BY ASSESSEE STANDS P ARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH DEC, 2020 SD/- SD/- (CHANDRA POOJARI) (BEENA PILLAI) ACCOUNTANT MEMBER JUDICIAL ME MBER BANGALORE, DATED, THE 11 TH DEC, 2020. /VMS/ PAGE 12 OF 13 IT(TP)A NO.2442/BANG/2019 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE PAGE 13 OF 13 IT(TP)A NO.2442/BANG/2019 DATE INITIAL 1. DRAFT DICTATED ON ON DRAGON SR.PS 2. DRAFT PLACED BEFORE AUTHOR -12-2020 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER -12-2020 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. -12-2020 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS -12-2020 SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON -12-2020 SR.PS 7. SIGNED ORDER COMES BACK TO SR.PS/PS -12-2020 SR.PS 8. DATE OF UPLOADING THE ORDER ON WEBSITE -12-2020 SR.PS 9. IF NOT UPLOADED, FURNISH THE REASON -- SR.PS 10. FILE SENT TO THE BENCH CLERK -12-2020 SR.PS 11. DATE ON WHICH FILE GOES TO THE AR 12. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 13. DATE OF DISPATCH OF ORDER. 14. DRAFT DICTATION SHEETS ARE ATTACHED NO SR.PS