M/s. Siemens Healthcare Diagnostics Ltd., Baroda V. The ACIT.,Circle-4, Baroda

ITA 2881/AHD/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80378 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 8 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-09-2014
• Appeal Filed By: Assessee
• Bench Allotted: D
• Next Hearing Date: 11-09-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 24-12-2012
• Court: TRIBUNAL
• Department Lawyers: VIMALENDU VERMA
• Keywords: Depreciation; Transfer pricing; International transaction; Valuation report
• Section: 43B; 37(1); 10B; 32

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD 0 00 0 0 00 0 , , , , ! ! ! ! ' #$% ' #$% ' #$% ' #$% #& #&#& #&0 00 0# ## #0 00 0 '& '& '& '&, , , , () * () * () * () * * * * * ( ' ( ' ( ' ( ' BEFORE SHRI G.C. GUPTA, VICE PRESIDENT AND SHRI N.S. SAINI, ACCOUNTANT MEMBER ITA (TP) NO. 2881/AHD/2012 ASSESSMENT YEAR 2008-09 M/S. SIEMENS HEALTHCARE DIAGNOSTICS LIMITED (NOW MERGED WITH SIEMENS LTD), 589, SAYAJIPURA, AJWA ROAD, BARODA-390019. PAN: AAACB8542M VS THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-4, BARODA. +,/ APPELLANT ./+, / RESPONDENT REVENUE BY : SHRI VIMALENDU VERMA, DR ASSESSEE(S) BY : KARISHMA POPAT PHATARPHEKAR, AR &$0 1 )/ // / DATE OF HEARING : 11/ 09/2014 234 1 ) / DATE OF PRONOUNCEMENT: 19/09/2014 (5 (5 (5 (5/ // / O R D E R PER SHRI N.S. SAINI, ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST T HE ORDER OF THE DISPUTE RESOLUTION PANEL, AHMEDABAD DATED 26.09.201 2. 2. GROUND NOS. 1, 2, 3, 5, 6 AND 7 OF THE APPEAL READ AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED DEPUTY COMMISSIONER OF INCOME TAX (TPO) - II, AHMEDABAD ('TPO') AND THE LEARNED ASSISTANT COMMISS IONER OF INCOME-TAX CIRCLE-4, BARODA ('AO') UNDER DIRECTIONS ISSUED BY ITA (TP)NO. 2881/AHD/2012 M/S SIEMENS HEALTHCARE DIAGNOSTICS LTD., BARODA. AY 2008-09 - 2 - THE HON'BLE DISPUTE RESOLUTION PANEL, AHMEDABAD ('D RP'), ERRED IN MAKING AN ADDITION OF RS. 18,763,625 TO THE APPE LLANT'S TOTAL INCOME BASED ON THE PROVISIONS OF CHAPTER X OF THE INCOME TAX ACT, 1961 ('THE ACT'). 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED AO/TPO ERRED AND THE HON'BLE DRP FURTHE R ERRED IN UPHOLDING / CONFIRMING THE ACTION OF THE LEARNED TP O IN NOT ACCEPTING THE TWO COMPARABLES SELECTED BY THE APPEL LANT I.E. CASIL HEALTH PRODUCTS LTD AND MONOZYME INDIA LTD ON THE PREMISE OF 'FUNCTIONAL COMPARABILITY', WITHOUT APPR ECIATING THE FACT THAT THE SAME WERE CONSIDERED AS 'FUNCTIONALLY COMPARABLE' IN EARLIER ASSESSMENT YEAR (AY) I.E. AY 2007-08. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED AO/TPO ERRED AND THE HON'BLE DRP FURTHE R ERRED IN UPHOLDING / CONFIRMING THE ACTION OF THE LEARNED TP O IN NOT ACCEPTING THE COMPARABLES SELECTED BY THE APPELLANT BASED ON UPDATED SEARCH PERFORMED BY THE APPELLANT DURING TH E COURSE OF ASSESSMENT PROCEEDINGS BEFORE THE TPO, ON THE BASIS THAT THE INTERNATIONAL TRANSACTIONS OF THE APPELLANT OUGHT T O BE BENCHMARKED SEPARATELY, WITHOUT APPRECIATING THE FA CT THAT THE SAID INTERNATIONAL TRANSACTIONS ARE CLOSELY LINKED AND CANNOT BE SEPARATED. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED TPO ERRED AND THE HON'BLE DRP FURTHER E RRED IN UPHOLDING / CONFIRMING THE ACTION OF THE LEARNED TP O IN REJECTING THE USE OF MULTIPLE YEAR DATA FOR COMPUTING THE OPE RATING MARGIN OF THE COMPARABLE COMPANIES. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED TPO ERRED AND THE HON'BLE DRP ERRED IN UPHOLDING / CONFIRMING THE ACTION OF THE LEARNED TPO IN NOT ALL OWING THE BENEFIT OF 5 PER CENT VARIATION AVAILABLE UNDER THE SECOND PROVISO TO SECTION 92C(2) OF THE ACT. 7. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEANED ASSESSING OFFICER/TPO ERRED IN NOT PROVI DING THE CALCULATION FOR THE REVISED UPWARD ADJUSTMENT MADE ON ACCOUNT OF TRANSFER PRICING TO THE INCOME OF THE APPELLANT AFTER GIVING EFFECT TO THE DIRECTIONS OF THE HONBLE DISPUTE RES OLUTION PANEL. AT THE TIME OF HEARING, THE AUTHORIZED REPRESENTATI VE OF THE ASSESSEE DID NOT MAKE ANY SUBMISSION IN RESPECT OF THE ABOVE GRO UNDS. HENCE, THESE GROUNDS ARE DISMISSED FOR WANT OF PROSECUTION. ITA (TP)NO. 2881/AHD/2012 M/S SIEMENS HEALTHCARE DIAGNOSTICS LTD., BARODA. AY 2008-09 - 3 - 3. GROUND NO. 4 OF THE APPEAL IS DIRECTED AGAINST THE ORDER OF DISPUTE RESOLUTION PANEL UPHOLDING THE ACTION OF TH E TRANSFER PRICING OFFICER IN NOT ALLOWING ADJUSTMENT TO THE PROFITABILITY ON ACCOUNT OF DEPRECIATION FOR LIKE TO LIKE COMPARISON OF BUSINESS MODEL OF THE ASSESSEE AND COMPARABLE COMPANY. 4. THE ASSESSEE SUBMITTED BEFORE THE TRANSFER PRIC ING OFFICER AS UNDER: A. ADJUSTMENT ON ACCOUNT OF DEPRECIATION THE ASSESSEE FOLLOWS TWO TYPES OF BUSINESS MODELS F OR ITS DISTRIBUTION FUNCTION. IN THE FIRST MODEL, THE ASSESSEE SELLS IN STRUMENTS ON AN OUTRIGHT BASIS TO THE CUSTOMERS. IN THE SECOND MODE L, THE ASSESSEE PROVIDES INSTRUMENT TO THE CUSTOMERS ON LEASE BASIS , WITH THE CONDITION THAT CUSTOMERS WILL HAVE TO BUY REAGENTS FROM THE ASSESSEE OVER AN AGREED PERIOD. THE ASSESSEE USES THIS MECHA NISM TO ENSURE A COMMITTED SALE OF CONSUMABLES. THE ASSESSEE THUS FO LLOWS A UNIQUE BUSINESS MODEL, WHEREIN DIAGNOSTIC INSTRUMENTS ARE SOLD TO CUSTOMERS ON LEASE BASIS AND DURING THE LEASE PERIOD DIAGNOST IC INSTRUMENT IS USED BY THE CUSTOMERS AND DEPRECIATION ON SUCH INST RUMENTS IS RECORDED BY THE ASSESSEE. IN SECOND BUSINESS MODEL, THE INSTRUMENTS ARE RENTE D ('SEEDED') AND USED BY THE CUSTOMERS BUT CAPITALIZED IN THE BOOKS OF THE ASSESSEE AS 'FIXED ASSET'. THUS THE DEPRECIATION ON THE INSTRUM ENTS IS RECORDED IN THE BOOKS OF THE ASSESSEE. IN THE FOLLOWING TABLE, THE ASSESSEE HAS COMPARED T HE RATIO OF DEPRECIATION COST TO THE TOTAL OPERATING COST OF TH E ASSESSEE VIS-A-VIS SPAN DIAGNOSTICS LTD FOR FY 2007-08: PARTICULARS SHDL SPAN DIAGNOSTICS LTD. DEPRECIATION COST 63,502,982 14,465,868 TOTAL OPERATING COST 792,291,108 549,724,372 DEPRECIATION AS % OF TOTAL OPERATING COST 8.02% 2.63% THUS, FROM THE AFORESAID ANALYSIS, IT IS EVIDENT TH AT RATIO OF DEPRECIATION COST TO TOTAL COST RATIO IS ALMOST THR EE TIMES HIGHER IN THE CASE OF THE ASSESSEE AS COMPARED TO SPAN DIAGNOSTIC S LTD. HENCE, FOR THE PURPOSE OF 'LIKE TO LIKE' COMPARISON AN ADJUSTM ENT IN RESPECT OF DEPRECIATION COST WHILE COMPUTING MARGIN OF THE ASS ESSEE AND COMPARABLE COMPANIES IS CLAIMED. ACCORDINGLY, THE ASSESSEE HAS COMPUTED THE OPERATIN G MARGINS OF THE ASSESSEE AND THE COMPARABLE COMPANIES WITHOUT CONSI DERING ITA (TP)NO. 2881/AHD/2012 M/S SIEMENS HEALTHCARE DIAGNOSTICS LTD., BARODA. AY 2008-09 - 4 - DEPRECIATION COST. BASED ON ABOVE, OPERATING MARGI N OF THE ASSESSEE AND SPAN DIAGNOSTICS LTD WORKS OUT TO AS FOLLOWS. PARTICULARS SPAN DIAGNOSTICS LTD. THE ASSESSEE NPM 13.28 PERCENT 13.30 PER CENT HENCE, THE INTERNATIONAL TRANSACTIONS ENTERED INTO BY THE ASSESSEE APPEAR TO BE CONSISTENT WITH THE ARMS LENGTH STAND ARD FROM AN INDIAN TRANSFER PRICING PERSPECTIVE. 5. IN SUPPORT OF ABOVE SUBMISSION, THE ASSESSEE PL ACED RELIANCE ON THE DECISION OF THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF SCHEFENACKER MOTHERSON LTD. VS. ITO (2009) 123 TTJ 509 (DEL) WHE REIN THE TRIBUNAL HELD THAT DEPRECIATION COULD BE EXCLUDED WHILE COMPUTING THE MARGIN OF THE COMPARABLE COMPANIES AND TESTED PARTY, IF DEPRECIAT ION IS RESULTING IN A LARGE DIFFERENCES IN MARGIN OF TESTED PARTY AND COM PARABLE COMPANY. 6. AFTER GOING THROUGH THE SUBMISSIONS OF THE ASSE SSEE, THE TRANSFER PRICING OFFICER HELD AS UNDER: THERE ARE VALID REASONS FOR COMPUTING NET MARGIN UN DER TNMM AFTER ALLOWING DEDUCTION ON ACCOUNT OF DEPRECIATION AS :- (A) IT IS UNDISPUTED FACT THAT DEPRECIATION IS A CO ST INCURRED IN GENERATION OF REVENUE ACCORDINGLY; NET MARGIN IS TO BE COMPUTED ONLY AFTER ALLOWING DEPRECIATION. (B) DEPRECIATION IS COMPULSORILY ALLOWABLE DEDUCTIO N IN COMPUTING NET MARGIN UNDER THE INDIAN INCOME TAX ACT, (C) FAILURE TO FACTOR IN A REASONABLE ALLOWANCE FOR USAGE OF AN ASSET WILL OVER INFLATE THE RESULT GIVEN BY THE TNMM. (D) TAXPAYER ALWAYS INCLUDE RENT / LEASE RENT THAT IT PAYS IN THE COST BASE FOR COMPUTING NET MARGIN UNDER TNMM ACCORDINGL Y, EXCLUDING DEPRECIATION EXPENSE INCURRED WHILE IT OW NS AN ASSET, CANNOT BE ENVISAGED. (E) IF ONE EXAMINES INTERNATIONAL PRACTICES LIKE US A TRANSFER PRICING PROVISIONS THEN IT IS NOTICED THAT SECTION 482 OF U S REGULATION WHICH DEFINE 'OPERATING EXPENSE' STIPULATES DEDUCTI ON OF DEPRECIATION. IN THE USA IRSAPA TRAINING MANUAL DEP RECIATION IS INCLUDED IN THE COST BASES WHILE COMPUTING MARGIN U NDER TNMM. (F) HON'BLE ITAT IN CASE OF E-GAIN COMMUNICATION PV T. LTD. (PUNE ITAT) HAS ALSO APPROVED COMPUTATION OF NET MARGIN U NDER TNMM AFTER TAKING INTO ACCOUNT DEPRECIATION. ITA (TP)NO. 2881/AHD/2012 M/S SIEMENS HEALTHCARE DIAGNOSTICS LTD., BARODA. AY 2008-09 - 5 - F.10 CONSIDERING THE ABOVE, IT IS CLEAR THAT DEPREC IATION IS REQUIRED TO BE TAKEN INTO ACCOUNT FOR THE PURPOSES OF CALCULATI ON OF THE PLI. IN ADDITION TO THE ABOVE AS NOTED IN THE DISCUSSION AB OVE, THE ASSESSEE SHOULD HAVE BENCHMARKED ITS INTERNATIONAL TRANSACTI ONS IN RESPECT OF TRADING OF GOODS AND THE INTERNATIONAL TRANSACTIONS REPRESENTING INCOME EARNED ON RENTING OF EQUIPMENTS SEPARATELY. IN SUCH A SITUATION THAT DEPRECIATION COULD HAVE BEEN CONSIDE RED TO HE TAKEN OUT FROM THE CALCULATIONS FOR THE BENCHMARKING OF SIMPL E TRADING TRANSACTIONS, ON THE BASIS OF THE FACTS SO PRESENTE D. HOWEVER, SINCE THE ASSESSEE HAS BENCHMARKED ALL ITS TRANSACTION! A T AN ENTITY LEVEL, IF THE PROPOSAL FOR TAKING OUT DEPRECIATION FROM PLI IS ACCEPTED, IT WILL TANTAMOUNT TO TAKING OUT ALL THE TRANSACTIONS, REPR ESENTING PURCHASE OF CAPITAL GOODS FROM THE AE AND CAPITALIZED IN THE BO OKS OF ACCOUNT, FROM THE PURVIEW OF THE BENCHMARKING EXERCISE. THIS IS SO BECAUSE THE EFFECT OF THE INTERNATIONAL TRANSACTIONS, REPRESENT ING ASSET PURCHASE FROM AE, ON THE MARGIN IS ONLY THROUGH DEPRECIATION . THEREFORE SINCE THE ENTITY LEVEL MARGIN IS CONSIDERED BY THE ASSESS EE, THE DEPRECIATION IS TO 'BE INCLUDED NECESSARILY TO FIND OUT THE CORR ECT BENCHMARKING FOR THE INTERNATIONAL TRANSACTIONS REPRESENTING PURCHAS E OF CAPITAL GOODS. THUS THIS CONTENTION IS NOT ACCEPTED. 7. ON APPEAL BEFORE THE DISPUTE RESOLUTION PANEL, THE ASSESSEE SUBMITTED AS FOLLOWS: ANY RECEIPT OR EXPENDITURE HAVING NO BEARING ON PRI CE OR MARGIN OF PROFIT CAN BE IGNORED. DEPRECIATION CAN BE TAKEN I NTO ACCOUNT OR DISREGARDED IN COMPUTING PROFIT DEPENDING UPON THE CONTEXT AND PURPOSE FOR WHICH PROFIT IS TO BE COMPUTED. THERE IS NO FORMULA WHICH WOULD BE APPLICABLE UNIVERSALLY AND IN ALL CIRCUMST ANCES. NET PROFIT USED IN RULE 10B CAN BE TAKEN TO MEAN COMMERCIAL PR OFIT. DEPRECIATION, WHICH CAN HAVE VARIED BASIS AND IS AL LOWED AT DIFFERENCE RATES IS NOT SUCH AN EXPENDITURE WHICH MUST BE DEDU CTED IN ALL SITUATIONS. IT HAS NO DIRECT CONNECTION OR BEARING ON PRICE, COST OR PROFIT MARGIN OF THE INTERNATIONAL TRANSACTIONS. O BJECT AND PURPOSE OF THE TRANSFER PRICING IS TO COMPARE LIKE WITH THE LI KE, AND TO ELIMINATE DIFFERENCES, IF ANY, BY SUITABLE ADJUSTMENT. THE RATIO OF DEPRECIATION COST TO TOTAL COST RATIO IS ALMOST THREE TIMES HIGHER IN THE CASE OF THE ASSESSEE AS COMPARED TO S PAN DIAGNOSTICS LTD. HENCE, FOR THE PURPOSE OF LIKE TO LIKE COMP ARISON, THE ASSESSEE CLAIMED FOR ADJUSTMENT IN RESPECT O DEPRECIATION CO ST WHILE COMPUTING MARGIN OF THE ASSESSEE AND COMPARABLE COMPANIES. ALTERNATIVELY, THE OPERATING PROFIT EXCLUDING DEPRE CIATION SHOULD BE CONSIDERED FOR THE PURPOSE OF COMPARISON AS DEPRECI ATION IS LEADING TO LARGE DIFFERENCES IN MARGINS OF THE ASSESSEE AND SP AN DIAGNOSTICS LTD. ITA (TP)NO. 2881/AHD/2012 M/S SIEMENS HEALTHCARE DIAGNOSTICS LTD., BARODA. AY 2008-09 - 6 - 8. THE DISPUTE RESOLUTION PANEL DECIDED THE ISSUE AS UNDER: WE HAVE CONSIDERED THE FACTS OF THE CASE. THE ASSE SSEES BUSINESS IS ASSET INTENSIVE. THE INSTRUMENTS ETC ARE GIVEN 'ON LEASE TO EARN INCOME. IT IS NOT PURE TRADING. IN SUCH CIRCUMSTANC ES REMOVING DEPRECIATION WILL MEAN RETAINING THE INCOME BUT REM OVING THE CORRESPONDING EXPENDITURE/COSTS/ CHARGES. THIS WILL PROJECT A DISTORTED PICTURE OF ASSESSEE'S ACCOUNTS. HENCE WE ARE IN AGR EEMENT WITH THE TPO THAT DEPRECIATION WILL HAVE TO BE INCLUDED IN T HE PLI WORKING. 9. BEFORE US, THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SUBMITTED AS UNDER: ACCORDING TO RULE 10B(1)(E)(III), ADJUSTMENT HAS TO BE PROVIDED TO ACCOUNT FOR ANY DIFFERENCES BETWEEN THE INTERNATION AL TRANSACTION AND THE UNCONTROLLED COMPARABLES. TPO HAS MISREAD THE RULES TO SAY THAT THE ASSESSEE NEEDED TO DEMONSTRATE THAT ITS DEPRECIATION HAS IMPACT ON THE MARGIN IN THE OPEN MARKET. IN FACT THE RULES STATE THAT IF ANY DIFFERENCE ARIS ES BETWEEN THE ASSESSEE AND THE COMPARABLE, ADJUSTMENT NEEDS TO BE MADE. IN ASSESSEES CASE, THE PERCENTAGE OF DEPRECIATION TO TOTAL OPERATING COST WAS 8.05% WHEREAS THAT OF SPAN DIAGNOSTICS WAS 21.61% (REFER CALCULATION OF PERCENTAGE OF DEPRECIATION (HD7)). ASSESSEE FOLLOWS SLM WHILE CHARGING DEPRECIATION WH ILE SPAN DIAGNOSTICS FOLLOWS WDV. SINCE BOTH THESE METHODS ADJUSTMENT IS WARRANTED TO BRING SPAN DIAGNOSTICS IN LINE WITH AS SESSEE. (REFER RELEVANT EXTRACTS OF ANNUAL REPORT OF SPAM AND ASSE SSEE HD8 AND 9)). THEREFORE, OUR PLEA IS TO EITHER EXCLUDE DEPRECIATI ON OR ADJUST THE COMPARABLES DEPRECIATION TO THE ASSESSEES LEVEL O F DEPRECIATION. MORE SO, CONSIDERING THAT THERE IS ONLY ONE COMPANY THAT THE TPO IS COMPARING, IT IS IMPORTANT TO MAKE THIS TRULY COMPA RABLE ON ALL PARAMETERS. ALTERNATIVELY, IF FRESH COMPARABLES ARE ADDED TO SP AN, THE AVERAGE MARGIN WOULD NOT BE HEAVILY DEPENDENT ON ONE COMPAR ABLE AND MAY BETTER REPRESENT THE ARMS LENGTH SCENARIO. THE ASSESSEES PLEA IS ON PRINCIPLE GROUNDS THAT IF THERE ARE DIFFERENCES IN ITS OWN FACTS VIS--VIS FACTS OF COMPARABLE THEN ADJUSTMENT IS WARRANTED. ADJUSTMENT CAN BE MADE BY EXCLUDING DEP RECIATION OR ADJUSTING THE LEVEL OF DEPRECIATION. ITA (TP)NO. 2881/AHD/2012 M/S SIEMENS HEALTHCARE DIAGNOSTICS LTD., BARODA. AY 2008-09 - 7 - 10. IN SUPPORT OF THE ABOVE SUBMISSION, THE AUTHOR IZED REPRESENTATIVE OF THE ASSESSEE QUOTED FOLLOWING JUD GMENTS: 1. SCHEFENACKER MOTHERSON LTD. V. ITO (2009) 123 TTJ 509 (DEL) 2. DCIT V. REUTERS INDIA PVT. LTD. (2013) 24 ITR (TRIB) 231 (MUM) 3. PENTAIR WATER INDIA PVT. LTD. V. ADDL. COMMISSIO NER OF INCOME TAX (2014) 47 TAXMANN.COM 132 (PANAJI) 4. MARKET TOOLS RESEARCH PVT. LTD. V. ACIT ITA NO . 2066/HYD/2011 11. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE ORDERS OF LOWER AUTHORITIES AND MATERIAL AVAILABLE ON RECORD. IN THE INSTANT CASE, THE ASSESSEE IS ENGAGED IN THE BUSINESS OF TRADING OF D IAGNOSTIC INSTRUMENTS AND CONSUMABLES MANUFACTURED BY ITS ASSOCIATED ENTERPRI SES. THE ASSESSEE ENTERED INTO INTERNATIONAL TRANSACTIONS REPRESENTIN G PURCHASE OF GOODS FROM THE ASSOCIATED ENTERPRISES. THE CONCLUSION ARRIVED BY THE ASSESSEE IN RESPECT OF ARMS LENGTH NATURE OF THE TRANSACTION W AS NOT FOUND TO BE ACCEPTABLE BY THE TRANSFER PRICING OFFICER. IT IS NOT IN DISPUTE THAT THE ARMS LENGTH PRICE OF THE AFORESAID INTERNATIONAL TRANSAC TION IS TO BE BENCHMARKED ON TRANSACTION NET MARGIN METHOD (TNMM). TO COMPUT E TRANSACTION NET MARGIN METHOD OF THE ASSESSEE, DATA OF M/S. SPAN DI AGNOSTICS LIMITED WAS FOUND TO BE COMPARABLE BY TRANSFER PRICING OFFICER. AS PER THE TRANSFER PRICING OFFICER, THE TRANSACTION NET MARGIN METHOD OF M/S. SPAN DIAGNOSTICS LIMITED WORKS OUT TO 9.22% WHEREAS THE TRANSACTION NET MARGIN METHOD OF THE ASSESSEE IN RESPECT OF AFORESAID INTERNATIONAL TRANSACTIONS COMES TO 5.75%. THEREFORE, THE TRANSFER PRICING OFFICER ADD ED RS 2,91,87,164/- TO THE INCOME OF THE ASSESSEE. THE ASSESSEE CLAIMED B EFORE THE TRANSFER PRICING OFFICER THAT THERE IS HUGE DIFFERENCE BETWE EN THE DEPRECIATION OF THE ASSESSEE AND THE DEPRECIATION OF THE COMPARABLE CAS E IN AS MUCH AS RATIO OF DEPRECIATION TO TOTAL COST RATIO IS ALMOST THREE TI MES HIGHER IN THE CASE OF THE ASSESSEE AS COMPARED TO M/S. SPAN DIAGNOSTICS LIMIT ED, THE COMPARABLE CASE. THE DEPRECIATION IN THE CASE OF THE ASSESSEE COMES TO 8.02% OF OPERATING COST WHEREAS THE DEPRECIATION TO THE TOTA L OPERATING COST COMES TO ITA (TP)NO. 2881/AHD/2012 M/S SIEMENS HEALTHCARE DIAGNOSTICS LTD., BARODA. AY 2008-09 - 8 - 2.63% ONLY IN THE CASE OF M/S. SPAN DIAGNOSTICS LIM ITED. THE ASSESSEE ALSO POINTED OUT THAT THE DEPRECIATION CHARGED BY THE AS SESSEE IN ITS BOOKS OF ACCOUNTS IS ON WRITTEN DOWN VALUE (WDV) METHOD WHER EAS THE DEPRECIATION CHARGED IN THE CASE OF M/S. SPAN DIAGNOSTICS LIMITE D IS ON STRAIGHT-LINE METHOD, HENCE FOR COMPARING TRANSACTION NET MARGIN METHOD OF THE TWO COMPANIES, ADJUSTMENT IN RESPECT OF DEPRECIATION IS MUST. HOWEVER, THE TRANSFER PRICING OFFICER HAD GIVEN NO FINDING ON TH E VARIATION IN THE AMOUNT OF DEPRECIATION AS WELL AS EFFECT OF VARIATION IN T WO DIFFERENT METHODS OF PROVIDING DEPRECIATION EMPLOYED IN THE TWO CASES. IN THE OPINION OF THE TRANSFER PRICING OFFICER, DEPRECIATION IS MUST FOR ARRIVING AT NET MARGIN AND THEREFORE DEPRECIATION CANNOT BE EXCLUDED. 12. ON APPEAL BEFORE THE DISPUTE RESOLUTION PANEL, THE ASSESSEE REITERATED ITS SUBMISSIONS MADE BEFORE THE TRANSFER PRICING OFFICER. 13. THE DISPUTE RESOLUTION PANEL HAS ALSO NOT RECO RDED ANY FINDING IN RESPECT OF THE CLAIM OF THE ASSESSEE ABOUT THE D IFFERENCE IN THE AMOUNT OF DEPRECIATION AS WELL AS IN RESPECT OF DIFFERENCE IN THE METHOD OF PROVIDING DEPRECIATION EMPLOYED IN THE CASE OF THE ASSESSEE V IS--VIS THE METHOD EMPLOYED IN THE CASE OF M/S. SPAN DIAGNOSTICS LIMIT ED. THE DISPUTE RESOLUTION PANEL WITHOUT RECORDING ANY FINDING ON T HIS ISSUE CONFIRMED THE ACTION OF THE TRANSFER PRICING OFFICER. WE FIND TH AT THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF SCHEFENACKER MOTHERSON LTD. VS. ITO & ANR. (2009) 123 TTJ 509 (DEL) HAS HELD AS UNDER: IN THE PRESENT APPEAL, ALP OF TRANSACTIONS CARRIED WAS TO BE DETERMINED BY COMPARING NET PROFIT OF THE TAXPAYER (TESTED PARTY) WITH MEAN NET PROFIT OF COMPARABLES. ONLY RECEIPTS AND E XPENDITURE, HAVING CONNECTION WITH INTERNATIONAL TRANSACTIONS, WERE RE QUIRED TO BE TAKEN INTO ACCOUNT. ANY RECEIPT OR EXPENDITURE HAVING NO BEARING ON PRICE OR MARGIN OF PROFIT COULD NOT BE TAKEN INTO CONSIDERAT ION. IT IS EVIDENT FROM STATUTORY PROVISIONS THAT IT IS NOWHERE PROVID ED THAT DEDUCTION OF DEPRECIATION IS A MUST. DEPRECIATION CAN BE TAKEN I NTO ACCOUNT OR DISREGARDED IN COMPUTING PROFIT DEPENDING UPON THE CONTEXT AND PURPOSE FOR WHICH PROFIT IS TO BE COMPUTED. THERE I S NO FORMULA WHICH ITA (TP)NO. 2881/AHD/2012 M/S SIEMENS HEALTHCARE DIAGNOSTICS LTD., BARODA. AY 2008-09 - 9 - WOULD BE APPLICABLE UNIVERSALLY AND IN ALL CIRCUMST ANCES. 'NET PROFIT' USED IN R. 10B CAN BE TAKEN TO MEAN COMMERCIAL PROF IT AS HELD BY THE TPO AND CONFIRMED ON APPEAL BY THE CIT(A). BUT DEPR ECIATION IN SUCH PROFIT ON COMMERCIAL PRINCIPLES HAS TO BE THE 'ACTU AL' AMOUNT BY WHICH THE ASSETS OF BUSINESS GOT DEPLETED BETWEEN THE TWO DATES SEPARATED BY A YEAR. IT CANNOT BE DEPRECIATION UNDER TAX OR C OMPANIES RULES OR AS PER POLICY OF THE COMPANY. IN THE CASE IN HAND, REVENUE AUTHORITIES WENT WRONG IN DISREGARDING THE CONTEXT AND PURPOSE FOR WHICH THE 'NET PROFIT' WAS TO BE COMPUTED. DEPRECIATION, WHICH CAN HAVE VARIED BASIS AND IS ALLOWED AT DIFFERENT RATES, IS NOT SUCH AN E XPENDITURE WHICH MUST BE DEDUCTED IN ALL SITUATIONS. IT HAS NO DIREC T CONNECTION OR BEARING ON PRICE, COST OR PROFIT MARGIN OF THE INTE RNATIONAL TRANSACTIONS. OBJECT AND PURPOSE OF THE TRANSFER PR ICING TO COMPARE LIKE WITH THE LIKE, AND TO ELIMINATE DIFFERENCES, I F ANY, BY SUITABLE ADJUSTMENT IS TO BE SEEN. THEREFORE, THERE WAS JUST IFICATION ON THE PART OF THE TAXPAYER IN PLEADING THAT PROFITS BE TAKEN W ITHOUT DEDUCTION OF DEPRECIATION AS DEPRECIATION WAS LEADING TO LARGE D IFFERENCES IN MARGINS FOR VARIOUS REASONS. THE TAXPAYER ALSO RELI ED UPON PARA 22.4 OF GUIDANCE NOTE ON TRANSFER PRICING ISSUED BY ICAI SUGGESTING CASH - PROFIT/SALES AS ONE OF THE RATIOS TO BE APPLIED FOR COMPUTING ALP UNDER THE TNMM AS PER INDIAN REGULATIONS. CONTENTION THAT DEPRECIATION WOULD DEPEND UPON TYPE OF TECHNOLOGY EMPLOYED, AGE AND NATURE OF MACHINERY USED, IS QUITE WELL-FOUNDED. ABOVE, ALONG WITH SIZE OF ENTERPRISE AND INVESTMENT IN PLANT/MACHINERY WERE I MPORTANT FACTORS TO BE TAKEN INTO ACCOUNT FOR COMPARISON AND FOR COM PUTING PROFIT. THERE IS CONSIDERABLE SUPPORT FOR THE CONTENTION RA ISED ON BEHALF OF THE TAXPAYER IN THE OECD GUIDELINES ON TRANSFER PRICING . THE CLAIM OF DEPRECIATION CAN LEAD TO GREAT DIFFERENCE IN COMPUT ING PROFITS OF COMPARABLES AS DEPRECIATION IS PERMITTED DEPENDING UPON NATURE OF PLANT/MACHINERY AND YEAR OF USE. IN 5TH OR 6TH YEAR OF COMMENCEMENT, DEPRECIATION CAN BE 25 TO 30 PER CENT OF AMOUNT ALLOWED IN FIRST YEAR TO AN ENTERPRISE. IN THESE AP PEALS, THE TPO HAD EXCLUDED CERTAIN COMPARABLES AFTER NOTING DIFFERENC ES IN THEIR YEAR OF START OF OPERATIONS. THUS, AGE OF PLANT/MACHINERY A ND OTHER RELATED INFORMATION IS AVAILABLE ON RECORD AND, THEREFORE, CONTENTION OF THE TAXPAYER ON DIFFERENCES IN CLAIM OF DEPRECIATION IS FULLY ESTABLISHED ON RECORD. OBVIOUSLY THERE ARE DIFFERENCES BETWEEN THE MACHINERY EMPLOYED BY THE TAXPAYER AND OTHER COMPARABLE CONCE RNS WHICH IS REFLECTED IN AMOUNT AND PERCENTAGE OF DEPRECIATION CLAIMED. HOW THIS VARIATION AND DIFFERENCE COULD BE IGNORED UNDER TP REGULATIONS IS NEITHER SHOWN NOR EXPLAINED. THE TAXPAYER HAS DEBIT ED HIGH AMOUNT/RATIO OF DEPRECIATION AS PER RULES AS IT WAS FIRST OR SECOND YEAR OF COMMENCEMENT OF ITS BUSINESS. OTHER ENTERPRISES NAVE CLAIMED DEPRECIATION AT MUCH LOWER AMOUNTS. IT IS MORE THAN 5 AND 15 TIMES OF THE TAXPAYER. SIZE OF THE ASSETS BESIDES THE AGE OF THE ASSETS OF COMPARABLES WAS LEADING TO DIFFERENCE IN THE PROFIT MARGINS AND IN MEAN MARGIN. ON THE CONTRARY, CLAIM OF DEPRECIATION IS EATING UP LARGE CHUNK OF PROFIT IN THE CASE OF THE TAXPAYER. HOW AB OVE DIFFERENCES WERE NOT CONSIDERED IN APPLYING FAR ANALYSIS? THE C IT(A) HAS NOT SAID A WORD ON ASSET' EMPLOYED AND 'RISKS' SUFFERED BY THE TESTED PARTY AND THE COMPARABLES. THUS, MATERIAL DIFFERENCES NEE DING SUITABLE ITA (TP)NO. 2881/AHD/2012 M/S SIEMENS HEALTHCARE DIAGNOSTICS LTD., BARODA. AY 2008-09 - 10 - ADJUSTMENT WERE IGNORED AND A FLAWED ANALYSIS WAS C ARRIED EVEN IN APPELLATE PROCEEDINGS. THE AO, AFTER LOOKING INTO D ETAILS OF FINANCIAL RESULTS OF COMPARABLE ENTERPRISES, EXCLUDED ALL COM PANIES EXCEPT THE THREE, ALTHOUGH TWO OF COMPANIES SELECTED, NAMELY C CML AND RPL PERCENTAGE OF DEPRECIATION TO TOTAL COST HAD DIFFER ENCES OF MORE THAN 2 PER CENT WHICH IS QUITE SUBSTANTIAL. THE CIT(A) IS RIGHT IN HOLDING THAT WORKING OF MEAN PROFIT OF THE TPO ON THE BASIS OF T HREE SELECTED COMPANIES WAS NOT CORRECT. BUT THEN THE CIT(A) ALSO FAILED TO GIVE DUE REGARD TO THE NATURE, TYPE AND AGE OF THE MACHINERY EMPLOYED BY COMPARABLES OR SIZE OF THE COMPANIES LEADING TO MAT ERIAL DIFFERENCES. WITHOUT CONSIDERING OBVIOUS MATERIAL DIFFERENCES, T HE CONTENTION OF THE TAXPAYER TO TAKE PROFIT WITHOUT DEPRECIATION WAS RE JECTED. THIS REJECTION IS NOT SOUND IN LAW. XXXXX THE CIT(A) HAS OBSERVED 'FRESH INVESTMENT WAS BEING MADE IN AUTOMOBILE ANCILLARY INDUSTRY WHICH WAS IN EXPANSIO N PHASE AND, THEREFORE, THERE IS NO REQUIREMENT TO EXCLUDE DEPRE CIATION IN COMPUTING PLI'. WHAT EXPANSION, WHEN MADE, THE DATE AND YEAR OF EXPANSION, ITS COMPARABILITY WITH TAXPAYER'S CASE? NOTHING RELEVANT IS STATED IN THE IMPUGNED ORDERS. ONE DOES NOT KNOW HO W DIFFERENCES ON ACCOUNT OF DEPRECIATION COULD BE IGNORED ON THE FAC TS STATED ABOVE MERELY ON GENERAL OBSERVATIONS THAT AUTOMOBILE ANCI LLARY INDUSTRY IS IN THE EXPANSION PHASE. TAXPAYER IS SEEKING ADJUSTMENT OF DIFFERENCES ON ACCOUNT OF DEPRECIATION AND NO PLAUSIBLE REASON HAS BEEN GIVEN FOR NOT ACCEPTING THIS CLAIM. THERE IS NO FINDING THAT THER E ARE NO DIFFERENCES IN CLAIM OF DEPRECIATION AND, THEREFORE, IT SHOULD HAVE BEEN EXCLUDED IN COMPUTING 'OPERATING PROFIT' AS WARRANTED BY RULES. ON THE OTHER HAND, THE DIFFERENCES AS PER THE CHART ARE ACCEPTED . THE FINDING THAT CASH PROFIT CANNOT BE CONSIDERED IS NOT LEGALLY COR RECT. THE TAXPAYER IN ORDER TO GET ADJUSTMENT OF DIFFERENCE IN DEPRECIATI ON FURNISHED ARM'S LENGTH WORKING AFTER EXCLUDING DEPRECIATION AND BY TAKING ALL OTHER EXPENSES INTO CONSIDERATION AND SHOWED THAT SUCH PR OFIT OF THE TAXPAYER WAS QUITE COMPARABLE TO THE MEAN MARGIN OF COMPARABLES SIMILARLY COMPUTED. THIS DEMONSTRATIVELY SHOWED THA T DEDUCTION OF DEPRECIATIONS WAS MAKING HUGE DIFFERENCE AND REQUIR ED SUITABLE ADJUSTMENT. THIS CLAIM HAS NOT BEEN CHALLENGED. IT IS CLEAR THAT THE BEST WAY TO ADJUST DIFFERENCE ON ACCOUNT OF DEPRECI ATION WAS TO IGNORE DEPRECIATION BOTH IN CASE OF THE PARTY AND THE COMP ARABLES. AFTER ALL TP ADJUSTMENTS ARE TO BE MADE OF DIFFERENCES IN PRI CE CHARGED OR FOR INTERNATIONAL TRANSACTIONS AND NOT OF DIFFERENCE IN THE CLAIM OF DEPRECIATION AS HAS BEEN DONE IN THIS SUCH ADJUSTME NTS ALSO MATCHED THE REQUIREMENT OF THE CONTEXT (TP PRINCIPLES). THE BASIC ISSUE WAS WHETHER THE COST PAID OR CHARGED FOR INTERNATIONAL TRANSACTIONS WAS AT ARM'S LENGTH OR NOT. THE FACTORS WHICH GO TO INFLUE NCE PRICE, COST OR PROFIT ARE/WERE RELEVANT FOR COMPUTING PROFIT AND N OT DEPRECIATION HAVING NO DIRECT CONNECTION WITH PRICE OR PROFIT BU T RESPONSIBLE FOR WIDE DIFFERENCES. THE CASE OF THE REVENUE IS NOT CL EAR. IF DEPRECIATION IS NOT LEADING TO ANY DIFFERENCE, ITS EXCLUSION IS IMMATERIAL. IF IT IS LEADING TO DIFFERENCES, THEN DIFFERENCES ARE REQUIR ED TO BE ADJUSTED, AS ITA (TP)NO. 2881/AHD/2012 M/S SIEMENS HEALTHCARE DIAGNOSTICS LTD., BARODA. AY 2008-09 - 11 - REQUIRED BY PROVISIONS OF IT REGULATIONS. THERE IS NO WAY TO DISLODGE THE CLAIM OF THE TAXPAYER. THE CONTEXT AND PURPOSE OF LEGISLATION AND FACTS OF CASE OVERWHELMINGLY APPROVE ADOPTION OF CA SH PROFIT ONLY. THE TAXPAYER IN BOTH THE ASSESSMENT YEARS SHOWED BEFORE THE REVENUE AUTHORITIES THAT PROFIT SHOWN BY THE TAXPAYER SATIS FIES ARM'S LENGTH REQUIREMENT ON RATIO OF CASH PROFIT TO SALES IF UNI FORMLY APPLIED. AS THE DEDUCTION OF DEPRECIATION IS LEADING TO WIDE DIFFER ENCES, THE SAME SHOULD BE EXCLUDED. THE ONLY REASON GIVEN FOR REJEC TING TAXPAYER'S ANALYSIS AND FOR MAKING ADJUSTMENT IN THE TWO YEARS IS THAT USE OF RATIO OF CASH PROFIT WITHOUT DEPRECIATION IS NOT PE RMITTED UNDER THE LAW. THIS VIEW IN THE LIGHT OF ABOVE DISCUSSION CANNOT B E ACCEPTED AS CORRECT AND IS DISAPPROVED. 14. FURTHER, THE PANAJI BENCH OF TRIBUNAL IN THE C ASE OF PENTAIR WATER INDIA PVT. LTD. V. ACIT (2014) 47 TAXMANN.COM 132 (PANAJI) HAS HELD AS UNDER: THE COMMON CONTENTION IN RESPECT OF COMPUTATION OF TNMM I.E. OPERATING PROFIT TAKEN BY THE LD. AR IN RESPECT OF THE COMPARABLES IS THAT WHILE COMPUTING THE PROFIT RATIO, PROFIT PRIOR TO DEPRECIATION SHOULD BE COMPUTED AS IT WILL GIVE TRUE AND FAIR PROFIT RA TIO WITHOUT BEING AFFECTED BY THE DEPRECIATION CHARGED BY EACH OF THE COMPANIES. WE NOTED THAT DIFFERENT COMPANIES HAVE ADOPTED DIFFERE NT METHOD OF DEPRECIATION. IN FACT, FOR CHARGING DEPRECIATION T O THE PROFIT & LOSS ACCOUNT THERE ARE DIFFERENT PREVALENT RECOGNIZED ME THODS OF DEPRECIATION. SOME ASSESSEE OPT OF STRAIGHT LINE M ETHOD, SOME OPT FOR WRITTEN DOWN METHOD AND SOME OPT FOR SUM OF DIG IT METHOD OR EVEN REPLACEMENT COST METHOD. SELECTION OF EACH ME THOD WILL AFFECT THE RATE AND QUANTUM OF DEPRECIATION EVEN IF THE NA TURE OF THE ASSET IS THE SAME AND ULTIMATELY, THE NET PROFIT DERIVED BY THE COMPANY WILL VARY. FOR DETERMINING THE FAIR AND TRUE PROFIT, IN OUR OPINION, IT IS APPROPRIATE THAT THE EFFECT OF THE DEPRECIATION MUS T BE EXCLUDED OUT OF THE OPERATING PROFIT FOR DETERMINING THE OPERATING PROFIT RATIO. THEREFORE, THE BEST WAY OF COMPUTING THE OPERATING PROFIT, IN OUR OPINION, WILL BE TO COMPUTE THE PROFIT BEFORE DEPRE CIATION IN RESPECT OF EACH OF THE COMPANY. THIS WILL TAKE OUT THE INCONF ORMITY OR THE VARIATION IN THE PROFIT LEVEL OF THE COMPARABLES AR ISING DUE TO ADOPTION OF DIFFERENT METHOD OF CHARGING DEPRECIATION. WE H AVE GONE THROUGH THE ORDER OF THE BOMBAY BENCH OF THIS TRIBUNAL IN T HE CASE OF REUTERS INDIA (P.) LTD. AS HAS BEEN RELIED ON BY THE LD. AR . WE NOTED THAT THE TRIBUNAL IN THIS CASE HAS ADOPTED THE CASH PROFIT/O PERATING COST AS THE CORRECT PROFIT LEVEL INDICATOR UNDER THE TNMM METHO D. IF THE NET OPERATING PROFIT RATIO IS COMPUTED IN RESPECT OF TH E CDR UNIT BEFORE DEPRECIATION, IT WILL BE AS UNDER: ITA (TP)NO. 2881/AHD/2012 M/S SIEMENS HEALTHCARE DIAGNOSTICS LTD., BARODA. AY 2008-09 - 12 - PARTICULARS TOTAL REVENUE FROM CDR OPERATIONS 109,449,682 NOTIONAL REVENUE 1,629,003 TOTAL 111,078,685 TOTAL OPERATING COST 97,289,193 LESS: ADJUSTMENT FOR EXCESS DEPRECIATION PROVIDED 13,565,825 ADJUSTED OPERATING COST 83,723,368 OPERATING PROFITS 27,355,317 NET OPERATING PROFIT/OPERATING COST 32.67% 15. IN THE ABOVE FACTS AND CIRCUMSTANCES, IN OUR C ONSIDERED VIEW, IT SHALL BE FAIR AND IN THE INTEREST OF JUSTICE TO RES TORE THE MATTER BACK TO THE FILE OF THE TRANSFER PRICING OFFICER FOR PROPER VER IFICATION OF THE CLAIM OF THE ASSESSEE REGARDING HUGE DIFFERENCE IN THE AMOUNT OF DEPRECIATION BETWEEN THE ASSESSEE COMPANY AND THE CHOSEN COMPARABLE CASE AND ALSO THE DIFFERENCE IN THE METHOD OF PROVIDING OF DEPRECIATI ON IN THE TWO COMPANIES. IN OUR CONSIDERED VIEW, IF THE METHODS OF DEPRECIAT ION ADOPTED BY THE TWO COMPANIES ARE DIFFERENT, THEN THE NET MARGINS ARRIV ED AT ARE NOT STRICTLY COMPARABLE UNLESS SUITABLE ADJUSTMENT IS MADE IN TH E AMOUNT OF DEPRECIATION SO AS TO ADOPT DEPRECIATION UNDER THE SAME METHOD IN THE TWO CASES. THEREFORE, THE TRANSFER PRICING OFFICER IS DIRECTED TO TAKE INTO CONSIDERATION THE DIFFERENCE IN THE METHOD OF PROVI DING DEPRECIATION IN THE CASE OF THE ASSESSEE AND THE CHOSEN COMPARABLE CASE AND IF THE METHODS ARE DIFFERENT, THEN TO MAKE SUITABLE ADJUSTMENT FOR THE SAME AS PER LAW. 16. FURTHER, IN VIEW OF THE ABOVE TWO DECISIONS OF THE TRIBUNAL AS QUOTED ABOVE, IT IS OBSERVED THAT IF IN CASE DEPREC IATION OF THE ASSESSEE AND THE COMPARABLE CASE ARE NOT ON THE SIMILAR METHOD, THEN FOR COMPARING THE RESULTS OF THE TWO COMPANIES THE CASH MARGIN ALSO C AN BE ADOPTED FOR COMPARING THE TRANSACTION NET MARGIN METHOD OF THE TWO COMPANIES. THE TRANSFER PRICING OFFICER IS DIRECTED TO TAKE INTO C ONSIDERATION THE ABOVE CITED ITA (TP)NO. 2881/AHD/2012 M/S SIEMENS HEALTHCARE DIAGNOSTICS LTD., BARODA. AY 2008-09 - 13 - DECISIONS FOR DECIDING THE ISSUE AFRESH AS PER LAW. NEEDLESS TO MENTION THAT PROPER OPPORTUNITY OF HEARING SHALL BE ALLOWED TO T HE ASSESSEE BEFORE ADJUDICATING THE ISSUE AFRESH. WE ORDER ACCORDINGL Y. THUS, THIS GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL P URPOSES. 17. GROUND NO. 8, 9 & 10 OF THE APPEAL ARE DIRECTE D AGAINST THE ORDER OF DISPUTE RESOLUTION PANEL CONFIRMING THE OR DER OF THE ASSESSING OFFICER DISALLOWING THE CLAIM OF RS 1,30,17,067/- B EING DEPRECIATION IN RESPECT OF INSTRUMENTS PLACED AT CUSTOMERS SITE AN D CAPITALIZED IN THE BOOKS OF ACCOUNTS. 18. THE ASSESSING OFFICER HELD AS UNDER: ON PERUSAL OF SUBMISSION, IT IS SEEN THAT ASSESSEE HAS PLACED NEWLY PURCHASED PLANT AND MACHINERY WITH ITS CUSTOMERS AN D CHARGING NOTHING FROM THEM AND HAS CLAIMED DEPRECIATION. TH E ASSESSEE WAS ASKED AS TO WHY THE CLAIM OF DEPRECIATION SHOULD NO T BE DISALLOWED AS THE MACHINERIES ARE NOT UTILIZED FOR THE PURPOSE OF BUSINESS FOLLOWING THE STAND TAKEN IN EARLIER YEARS. IN POINT 5 OF YOUR CAPTIONED NOTICE YOU INTEND TO DISALLOW DEPRECIATION CLAIMED ON THE INSTRUMENTS PLACED AT C USTOMERS PLACE ON THE PLEA THAT SAME ARE NOT USED FOR THE PU RPOSE OF OUR BUSINESS. IN THAT RESPECT FIRST OF ALL WE WISH TO INFORM YOU THAT YOU HAVE TAKEN INCORRECT FIGURES OF ADDITIONS AS WE LL AS DEPRECIATION. THE ADDITION IN RESPECT OF INSTRUMEN TS PLACED AT CUSTOMERS PLACE AND USED FOR MORE THAN 180 DAYS IS RS 6,51,66,908/- AND BALANCE RS 3,800/- IS ADDITION TO WARDS MOBILE INSTRUMENTS. THE ADDITION OF INSTRUMENTS US ED FOR LESS THAN 180 DAYS IS RS 4,32,27,079/- AND BALANCE RS 8, 20,802/- IS TOWARDS OTHER INSTALLATIONS NOT RELATED TO INSTRUME NTS PLACED AT CUSTOMERS PLACE. ACCORDINGLY, THE CORRECT FIGURE O F DEPRECIATION IS RS 97,75,036/- (FOR 180 DAYS OR MORE) AND RS 32, 42,031/- (FOR LESS THAN 180 DAYS) TOTALLING TO RS 1,30,17,06 7/-.. THE SUBMISSION OF THE ASSESSEE HAS BEEN PERUSED AND DULY CONSIDERED. THE ASSESSEE HAS REITERATED ITS ARGUME NTS AS ARGUED IN EARLIER YEARS. SINCE, THE DEPARTMENT IS IN APPEAL ON THIS ISSUE, THE PLEA OF ASSESSEE IS NOT SUSTAINABLE. THEREFORE, A SUM OF RS 1,30,17,067/- BEING DEPRECIATION CLAIMED ON MACHINE RY PLACED WITH CUSTOMERS IS DISALLOWED AND ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE. ITA (TP)NO. 2881/AHD/2012 M/S SIEMENS HEALTHCARE DIAGNOSTICS LTD., BARODA. AY 2008-09 - 14 - THE OBJECTION HAS BEEN RAISED BY THE ASSESSEE BEFOR E THE DRP, AGAINST THIS ADDITION ALSO. THE LD. DRP HELD THAT IT IS ME NTIONED IN THE AOS ORDER THAT THIS ISSUE IS PENDING BEFORE THE ITAT IN EARLIER YEARS. IN SUCH CIRCUMSTANCES, WE REFRAIN FROM ISSUING ANY DIR ECTION ON THIS ISSUE. HENCE, A SUM OF RS 1,30,17,067/- BEING DEP RECIATION CLAIMED ON MACHINERY PLACED WITH CUSTOMERS IS DISALLOWED AN D ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE. PENALTY PROCEEDI NGS U/S. 271(1)(C) OF THE INCOME TAX ACT, 1961 ARE SEPARATELY INITIATE D. 19. ON APPEAL, THE DISPUTE RESOLUTION PANEL HELD A S UNDER: IT IS MENTIONED IN THE AOS ORDER THAT THIS ISSUE I S PENDING BEFORE THE ITAT IN EARLIER YEARS. IN SUCH CIRCUMSTANCES, WE R EFRAIN FROM ISSUING ANY DIRECTIONS ON THE ISSUE. THE AO SHOULD FOLLOW THE DECISION OF THE HIGHER APPELLATE AUTHORITIES. 20. THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE FILED BEFORE US COPY OF THE ORDER OF THIS TRIBUNAL IN THE CASE OF T HE ASSESSEE ITSELF FOR ASSESSMENT YEAR 2005-06 DATED 12.11.2013 PASSED IN ITA NO. 1842/AHD/2010 AND SUBMITTED THAT IN THAT ORDER, THE TRIBUNAL HAS RESTORED THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICE R AND FOLLOWING THE SAME IN THIS YEAR ALSO, THE ISSUE SHOULD BE RESTORED BACK T O THE FILE OF THE ASSESSING OFFICER FOR ADJUDICATION AFRESH AS PER THE SAME DIR ECTIONS AS GIVEN IN THE ASSESSMENT YEAR 2005-06. 21. THE DEPARTMENTAL REPRESENTATIVE HAD NO OBJECTI ON TO THE ABOVE SUBMISSION OF THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE 22. WE FIND THAT THE TRIBUNAL IN THE ASSESSMENT YE AR 2005-06 IN THE CASE OF THE ASSESSEE ITSELF VIDE ORDER DATED 12.11. 2013 PASSED IN ITA NO. 1842/AHD/2010 RESTORED THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER BY OBSERVING AS UNDER: 5. AFTER HEARING BOTH THE SIDES AND CAREFULLY PERU SING THE MATERIALS ON RECORD, WE ARE OF THE CONSIDERED VIEW THAT THE I D. AO IS RIGHT IN ITS RIM TO EXAMINE THE AGREEMENTS ENTERED BETWEEN THE A SSESSEE COMPANY AND ITS CUSTOMERS FOR DETERMINING THE NATUR E OF TRANSACTION. IT IS THE PRIMARY DUTY OF THE ASSESSEE TO FURNISH A LL SUCH AGREEMENTS IF ITA (TP)NO. 2881/AHD/2012 M/S SIEMENS HEALTHCARE DIAGNOSTICS LTD., BARODA. AY 2008-09 - 15 - REQUIRED BY THE REVENUE. IN THIS INSTANT CASE, THE ASSESSEE HAS FAILED TO DO SO IN SPITE OF THE REPEATED REQUESTS MADE BY THE ID. AO. THEREFORE, IN THE INTEREST OF JUSTICE, WE REMIT THE ISSUE BACK TO THE FILE OF ID. AO FOR THE LIMITED PURPOSE OF EXAMINING THES E AGREEMENTS. FURTHER WE MAKE IT CLEAR THAT IF THE ID. AO ARRIVES AT A CONCLUSION THAT THE OWNERSHIP OF THE ASSET IS NOT TRANSFERRED TO CU STOMERS OF THE ASSESSEE, THEN THE ASSESSEE IS ENTITLED TO CLAIM TH E BENEFIT OF THE DEPRECIATION UNDER SECTION 32 OF THE ACT AND THE LD . ASSESSING OFFICER SHALL PASS ORDERS ACCORDINGLY. THUS, THIS GROUND R AISED BY THE REVENUE IS REMITTED BACK TO THE FILE OF THE LD. ASS ESSING OFFICER TO PASS APPROPRIATE ORDER AS INDICATED HEREINABOVE. AS THE FACTS IN THE PRESENT YEAR OF APPEAL ARE ALSO THE SAME, THEREFORE WE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND R EMAND THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER TO ADJUDICATE THE ISSUE AFRESH IN THE LINE OF THE DIRECTIONS GIVEN BY THE TRIBUNAL IN ASSESSMENT YEAR 2005-06 AS QUOTED ABOVE. THUS, THESE GROUNDS OF APPEAL ARE ALLOWED F OR STATISTICAL PURPOSE. 23. GROUND NOS. 11 & 12 ARE DIRECTED AGAINST THE O RDER OF DISPUTE RESOLUTION PANEL CONFIRMING THE ORDER OF THE ASSESS ING OFFICER DISALLOWING THE CLAIM OF RS 4,12,609/- ON PROVISION OF SICK LEA VE U/S. 43B. 24. THE ASSESSING OFFICER OBSERVED AS UNDER: DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS DEBITED AN AMOUNT OF RS 4,12,609/- BEING PROVISIONS FOR SICK L EAVE. THE ASSESSEE WAS ASKED TO JUSTIFY THE CLAIM OF SUCH VIS--VIS SECTION 43B OR 37(1) OF THE ACT. THE ASSESSEE WAS APPRISED WITH THE PROVISIONS OF SECTION 43B OF THE ACT. THE PROVISIONS OF SECTION 43B OF SUB CLAUSE (F) ENV ISAGES THAT ANY SUM PAYABLE BY THE ASSESSEE AS AN EMPLOYER IN LIEU OF A NY LEAVE AT THE CREDIT OF HIS EMPLOYEE SHALL ONLY BE ALLOWED ON ACT UAL PAYMENT. THE SUBMISSION OF THE ASSESSEE ON THIS POINT READS AS UNDER: IN RESPECT OF PROVISIONS FOR SICK LEAVE TO THE TUN E OF RS 4,12,609/- DURING THE YEAR UNDER CONSIDERATION BASE D ON VALUATION REPORT, WE WISH TO SUBMIT THAT THE SAME I S IN ACCORDANCE WITH AND TO COMPLY WITH ACCOUNTING STAND ARD-15 EMPLOYEE BENEFITS. THROUGH INADVERTENCE, THE SAM E IS MENTIONED AS RETIREMENT BENEFITS IN THE LAST SUBMIS SION. WE FURTHER WISH TO SUBMIT THAT OURS IS A LISTED COMPAN Y AND ITA (TP)NO. 2881/AHD/2012 M/S SIEMENS HEALTHCARE DIAGNOSTICS LTD., BARODA. AY 2008-09 - 16 - COMPLIANCE OF ACCOUNTING STANDARD IS MANDATORY. NO N- COMPLIANCE OF THE SAID ACCOUNTING STANDARD COULD LE AD TO QUALIFICATION OF THE AUDITORS AS WELL AS BREACH OF COMPANY LAW REQUIREMENTS AS TO DISCLOSURE OF TRUE AND FAIR VIEW TO SHAREHOLDERS. IT IS FURTHER SUBMITTED THAT THE VAL UATION IS DONE ON SCIENTIFIC BASIS AND BY THE ACTUARY, WHO IS EXPE RT IN THE FIELD. THE REPLY OF THE ASSESSEE IS PERUSED BUT IT IS NOT ACCEPTABLE. THE PROVISION OF SICK LEAVE IS IN THE BENEFIT OF THE EM PLOYEE. THE ACTURIAL VALUATION OF SL (SICK LEAVE) ENCASHMENT IS BASED ON FINANCIAL ASSUMPTION SUCH AS SALARY WHICH WOULD BE ACCRUED TO THE EMPLOYEE AT THE TIME OF ENCASHMENT/AVAILMENT. LIABILITY TO PAY SUCH LEAVE IS BASED ON THE SALARY WHICH THE EMPLOYEE WILL BE DRAWING AT THE TIME OF EXIT. THE CONSULTANT AND ACTUARIES OF THE ASSESSEE HAS CO NSIDERED ALL THESE PARAMETERS AND ASSUMPTIONS IN HIS REPORT DATED 01.0 4.2009 WHICH IS FURNISHED BY THE ASSESSEE. HENCE, THE ASSESSEE HAD CONSCIOUSLY MENTIONED AS RETIREMENT BENEFITS IN THE EARLIER S UBMISSION AND IT WAS NOT IN ADVERTENCE. THEREFORE, IN VIEW OF THE PR OVISIONS OF SECTION 43B OF THE ACT, PROVISION OF RS 4,12,609 ON ACCOUNT OF SICK LEAVE IS DISALLOWED AND ADDED BACK TO THE TOTAL INCOME OF TH E ASSESSEE. THE ASSESSEE HAS RAISED THE OBJECTION BEFORE THE DI SPUTE RESOLUTION PANEL (DRP), AGAINST THIS ADDITION ALSO. THE LD. D RP VIDE HIS DIRECTION DATED 26.09.2012 HELD THAT IF THE AMOUNT WAS ACTUAL LY PAID IN THE SUBSEQUENT YEAR, THEN THE ASSESSEES CLAIM MAY BE A LLOWED THIS YEAR IF THE SAME HAS NOT BEEN ALLOWED IN THE YEAR OF PAYMEN T. HOWEVER, IF IT IS FOUND THAT NO SUCH PAYMENTS WERE ACTUALLY MADE E VEN IN THE NEXT TWO OR THREE YEARS, THEN NO DEDUCTION NEEDS TO BE A LLOWED FOR THE PROVISIONS MADE FOR THE FUTURE CONTINGENT LIABILITI ES. ON VERIFICATION OF RECORDS, IT IS FOUND THAT NO DET AIL HAS BEEN SUBMITTED BY THE ASSESSEE WHICH SHOWS THAT THE ALLEGED AMOUNT HAS BEEN ACTUALLY PAID IN THE SUBSEQUENT YEAR ALSO. THEREFO RE, NO DEDUCTION HAS BEEN ALLOWED TO THE ASSESSEE IN VIEW OF THE PROVISI ONS OF SECTION 43B OF THE ACT AND PROVISION OF RS 4,12,609/- ON ACCOUN T OF SICK LEAVE IS DISALLOWED AND ADDED BACK TO THE TOTAL INCOME OF T HE ASSESSEE. 25. ON APPEAL, THE DISPUTE RESOLUTION PANEL HELD A S UNDER: THE ASSESSEE MADE PROVISION FOR SICK LEAVE TO THE T UNE OF RS 4,12,609/- BASED ON VALUATION REPORT. THE ASSESSEE FURTHER ARGUED THAT THE SAME IS IN ACCORDANCE WITH AND TO COMPLY W ITH ACCOUNTING STANDARD-15 EMPLOYEE BENEFITS. THE VALUATION IS CLAIMED TO BE BASED ON SCIENTIFIC BASIS AND BY THE ACTUARY, WHO I S EXPERT IN THE FIELD. THE TPO DISALLOWED THE SAME UNDER SECTION 43B. W E DIRECT THE TPO TO VERIFY WHETHER THE AMOUNT WAS ACTUALLY PAID IN THE SUBSEQUENT YEARS. IF SO, THEN THE ASSESSEES CLAIM MAY BE ALLOWED THI S YEAR IF THE SAME HAS NOT BEEN ALLOWED IN THE YEAR OF PAYMENT. HOWEV ER, IF IT IS FOUND ITA (TP)NO. 2881/AHD/2012 M/S SIEMENS HEALTHCARE DIAGNOSTICS LTD., BARODA. AY 2008-09 - 17 - THAT NO SUCH PAYMENTS WERE ACTUALLY MADE EVEN IN TH E NEXT TWO OR THREE YEAS, THEN NO DEDUCTION NEEDS TO BE ALLOWED F OR THE PROVISION MADE FOR THE FUTURE CONTINGENT LIABILITIES. 26. BEFORE US, THE ASSESSEE SUBMITTED THAT SECTION 43B(F) IS NOT VALID FOR PROVISION OF LEAVE ENCASHMENT SINCE THE S AME IS NOT A STATUTORY LIABILITY. IN SUPPORT OF ITS SUBMISSION, THE ASSES SEE QUOTED THE FOLLOWING JUDGEMENTS: 1. EXIDE INDUSTRIES LIMITED & ANR. V. UNION OF INDI A & ORS. (2007) 212 CTR 206 (CAL) 2. EIMCO ELECON (INDIA) LTD. V. ACIT (2013) 22 ITR (TRIB.) 380 (AHD) 27. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE ORDERS OF LOWER AUTHORITIES AND MATERIAL AVAILABLE ON RECORD. IN THE INSTANT CASE, THE DEDUCTION CLAIMED IN RESPECT OF PROVISION MADE FOR SICK LEAVE OF RS 4,12,609/- WAS DISALLOWED BY THE ASSESSING OFFICER BY INVOKING THE PROVISIONS OF SECTION 43B (F) OF THE ACT. 28. ON APPEAL, THE DISPUTE RESOLUTION PANEL HELD A S UNDER: THE ASSESSEE MADE PROVISION FOR SICK LEAVE TO THE T UNE OF RS 4,12,609/- BASED ON VALUATION REPORT. THE ASSESSEE FURTHER ARGUED THAT THE SAME IS IN ACCORDANCE WITH AND TO COMPLY W ITH ACCOUNTING STANDARD-15 EMPLOYEE BENEFITS. THE VALUATION IS CLAIMED TO BE BASED ON SCIENTIFIC BASIS AND BY THE ACTUARY, WHO I S EXPERT IN THE FIELD. THE TPO DISALLOWED THE SAME UNDER SECTION 43B. W E DIRECT THE TPO TO VERIFY WHETHER THE AMOUNT WAS ACTUALLY PAID IN THE SUBSEQUENT YEARS. IF SO, THEN THE ASSESSEES CLAIM MAY BE ALLOWED THI S YEAR IF THE SAME HAS NOT BEEN ALLOWED IN THE YEAR OF PAYMENT. HOWEV ER, IF IT IS FOUND THAT NO SUCH PAYMENTS WERE ACTUALLY MADE EVEN IN TH E NEXT TWO OR THREE YEAS, THEN NO DEDUCTION NEEDS TO BE ALLOWED F OR THE PROVISION MADE FOR THE FUTURE CONTINGENT LIABILITIES. 29. WE FIND THAT THIS TRIBUNAL IN THE CASE OF EIMC O ELECON (INDIA) LTD. V. ACIT (2013) 22 ITR (TRIB.) 380 (AHD) HELD A S UNDER: ITA (TP)NO. 2881/AHD/2012 M/S SIEMENS HEALTHCARE DIAGNOSTICS LTD., BARODA. AY 2008-09 - 18 - 3.1 IT WAS SUBMITTED BY THE LD. AUTHORIZED REPRESE NTATIVE OF THE ASSESSEE THAT THE DISALLOWANCE WAS MADE BY THE A.O. BY INVOKING THE PROVISIONS OF CLAUSE (F) OF SECTION 43B. HE SUBMIT TED THAT AS PER THE DECISION OF HONBLE APEX COURT RENDERED IN THE CASE OF BHARAT EARTH MOVERS AS REPORTED IN 241 ITR 428 AND ALSO AS PER T HE JUDGMENT OF HONBLE CALCUTTA HIGH COURT RENDERED IN THE CASE OF EXIDE INDUSTRIES LTD. AND ANOTHER VS. UOI AND OTHERS AS REPORTED IN 292 ITR 470 (CAL.), DISALLOWANCE OF LEAVE ENCASHMENT IS NOT JUS TIFIED. HE SUBMITTED THAT IN THE FIRST CASE, IT WAS HELD BY THE HONBLE APEX COURT THAT LEAVE ENCASHMENT IS NOT A CONTINGENT LIABILITY IF THE PRO VISION IS MADE ON SOME SCIENTIFIC BASIS. HE ALSO SUBMITTED THAT IN T HE SECOND CASE, HONBLE CALCUTTA HIGH COURT HAS DULY CONSIDERED THE PROVISIONS OF CLAUSE (F) OF SECTION 43B AND IT WAS HELD THAT THE AMENDMENT AS PER WHICH THIS CLAUSE (F) WAS INSERTED BY THE FINANCE A CT 2001 W.E.F. 01.04.2002 IS HELD TO BE AS ARBITRARY BY HONBLE CA LCUTTA HIGH COURT AND, THEREFORE, THE SAME WAS STRUCK DOWN BY HONBLE CALCUTTA HIGH COURT BEING ARBITRARY, UNCONSCIONABLE AND DEHORS TH E HONBLE SUPREME COURTS DECISION. HE SUBMITTED THAT IN VIEW OF THI S JUDGMENT OF HONBLE CALCUTTA HIGH COURT, DISALLOWANCE MADE BY T HE A.O. IS NOT JUSTIFIED. LD. D.R. SUPPORTED THE ORDERS OF AUTHOR ITIES BELOW. 3.2 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUS ED THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHO RITIES BELOW AND THE JUDGMENT OF HONBLE CALCUTTA HIGH COURT RENDERE D IN THE CASE OF EXIDE INDUSTRIES LTD. (SUPRA). WE FIND THAT THE A. O. HAS MADE DISALLOWANCE BY INVOKING THE PROVISIONS OF CLAUSE ( F) OF SECTION 43B AND THE SAME WAS CONFIRMED BY LD. CIT (A) ALSO ON T HE BASIS OF SECTION 43B. AS PER THE JUDGMENT OF HONBLE CALCUT TA HIGH COURT RENDERED IN THE CASE OF EXIDE INDUSTRIES LTD. (SUPR A), IT WAS HELD THAT CLAUSE (F) OF SECTION 43B IS ARBITRARY, UNCONSCIONA BLE AND DEHORS OF THE HONBLE SUPREME COURT DECISION, AND THEREFORE, NOT VALID. IN VIEW OF THIS, CLAUSE (F) OF SECTION 43B IS NOT VALID AND, T HEREFORE, DISALLOWANCE MADE BY THE A.O. ON THE BASIS OF CLAUSE (F) OF SECT ION 43B CANNOT BE SUSTAINED. WE THEREFORE DELETE THE SAME. 30. THE DEPARTMENTAL REPRESENTATIVE COULD NOT POIN T OUT ANY GOOD REASON AS TO WHY THE AFORESAID DECISION OF THE TRIB UNAL SHOULD NOT BE FOLLOWED IN THE INSTANT CASE. WE, THEREFORE, FOLLO WING THE ABOVE QUOTED DECISION OF THE TRIBUNAL DELETE THE DISALLOWANCE OF RS 4,12,906/- FOR THE REASONS MENTIONED IN THE ABOVE QUOTED DECISION. TH US, THIS GROUND OF THE APPEAL OF THE ASSESSEE IS ALLOWED. 31. THE ASSESSEE HAS ALSO RAISED ADDITIONAL GROUND S OF APPEAL WHICH READ AS UNDER: ITA (TP)NO. 2881/AHD/2012 M/S SIEMENS HEALTHCARE DIAGNOSTICS LTD., BARODA. AY 2008-09 - 19 - GROUND NO. 13 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, WITHOUT PREJUDICE TO THE EARLIER GROUNDS, THE APPELLANT PRA YS THAT THE ADJUSTMENT, IF ANY, BE RESTRICTED TO THE VALUE OF T HE CONTROLLED TRANSACTIONS AND NOT ON TOTAL TRANSACTIONS (I.E. CO NTROLLED AS WELL AS UNCONTROLLED TRANSACTIONS). GROUND NO. 14 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, WITHOUT PREJUDICE TO THE EARLIER GROUNDS, THE APPELLANT PRA YS THAT ALTERNATIVELY, OVERALL GROSS PROFIT MARGIN ('GPM') EARNED BY THE A PPELLANT SHOULD BE CONSIDERED FOR BENCHMARKING THE INTERNATIONAL TRANS ACTIONS ENTERED INTO BY THE APPELLANT DURING THE YEAR UNDER CONSIDE RATION. AT THE TIME OF HEARING, THE AUTHORIZED REPRESENTATI VE OF THE ASSESSEE DID NOT MAKE ANY SUBMISSION IN RESPECT OF ABOVE GROUNDS . HENCE, THE SAME ARE DISMISSED FOR WANT OF PROSECUTION. 32. NO OTHER POINT WAS ARGUED OR PRESSED BY THE AU THORIZED REPRESENTATIVE OF THE ASSESSEE. 33. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS P ARTLY ALLOWED IN THE MANNER INDICATED ABOVE. ORDER PRONOUNCED IN THE COURT ON FRIDAY, THE 19 TH OF SEPTEMBER, 2014 AT AHMEDABAD. SD/- SD/- (G.C. GUPTA) JUDICIAL MEMBER ( N.S. SAINI) ACCOUNTANT MEMBER AHMEDABAD; DATED 19/9/2014 GHANSHYAM MAURYA, SR. P.S. ITA (TP)NO. 2881/AHD/2012 M/S SIEMENS HEALTHCARE DIAGNOSTICS LTD., BARODA. AY 2008-09 - 20 - TRUE COPY (5 1 .6 7(64 (5 1 .6 7(64 (5 1 .6 7(64 (5 1 .6 7(64/ COPY OF THE ORDER FORWARDED TO : 1. +, / THE APPELLANT 2. ./+, / THE RESPONDENT. 3. %% 8 / CONCERNED CIT 4. 8() / THE CIT(A)-III, AHMEDABAD 5. 6$; .& , , / DR, ITAT, AHMEDABAD 6. < =0 / GUARD FILE. (5& (5& (5& (5& / BY ORDER, / // / % % % % ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD