McDonald's India Pvt. Ltd, New Delhi V. DCIT, New Delhi

ITA 3017/DEL/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 53491 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 5 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 01-12-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 29-06-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SALIL MISHRA
• Assessee Lawyers: G C SRIVASTAVA
• Keywords: Transfer pricing; Principle of natural justice; International transaction; Question of law; Wholly owned subsidiary

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH E DELHI ] BEFORE SHRI I. P. BANSAL, JM & SHRI K. D. RANJAN, AM I. T. APPEAL NO. 3017 (DEL) OF 2009 ASSESSMENT YEAR : 2002-03. MCDONALDS INDIA PRIVATE LIMITED, DY. COMMIS SIONER OF INCOME-TAX, 202206, TOLSTOY HOUSE, VS. C I R C L E : 6 (1), 15 TOLSTOY MARG, N E W D E L H I. N E W D E L H I 110 001. P A N / G I R NO. AAACM 2007 J. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY : SHRI G. C. SRIVASTAVA, ADV.; DEPARTMENT BY : SHRI SALIL MISHRA, SR. D. R.; O R D E R. P E R B E N C H : THIS APPEAL BY THE ASSESSEE FOR ASSESSMENT YEAR 20 02-03 ARISES OUT OF ORDER OF THE LD. CIT (APPEALS)-XX, NEW DELHI. 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE REPRODUCED AS UNDER:- 1. THAT ON FACTS AND IN LAW THE LD. COMMISSIONE R OF INCOME TAX (APPEALS) [CIT(A)] ERRED IN UPHOLDING THE ADJUSTMENT OF RS.1, 55,52,470.00 IN DETERMINING THE ALLEGED ARMS LENGTH PRICE FOR ALLEGED SERVICES SUPPORT ON ACCOUNT OF ADVERTISING EXPENSES INCURRED BY THE APPELLANT ON I TS OWN BEHALF; 2. WITHOUT PREJUDICE TO THE ABOVE ON FACTS, T HE ADJUSTMENT UPHELD IS INCORRECT IN LAW IN AS MUCH AS :- (A) THE STATEMENTS THAT THE FRANCHISES HAVE NOT IN CURRED THE MARKETING SPEND (ADVERTISEMENT EXPENDITURE) IS AN INCORRECT PREMISE ; 2 I. T. APPEAL NO. 3017 (DEL) OF 2009 (B) THE LD. CIT (A) HAS ERRED IN IGNORING THE SUBM ISSION THAT THE APPELLANT / FRANCHISEES HAD MET THE OBLIGATION OF INCURRING THE REQUIRED 5 PER CENT OF GROSS SALES AS ADVERTISING EXPENSES; AND (C) REASONABLY ACCURATE ADJUSTMENT TO ELIMINATE TH E DIFFERENCE BETWEEN THE UNCONTROLLED TRANSACTIONS AND CONTROLLED TRANSACTIO NS THOUGH AVAILABLE HAS BEEN DENIED ON INCORRECT POSITION OF ITS NOT HAVING BEEN QUANTIFIED BEFORE TPO OR AT APPELLATE STAGE; 3. ON FACTS AND IN LAW THE LD. CIT (A) ERRED IN HOLDING THAT ADVERTISING EXPENDITURE INCURRED BY THE APPELLANT WAS AN INTERN ATIONAL TRANSACTION OF RENDITION OF SERVICE TO THE PARENT COMPANY AND ATTR ACTED THE PROVISIONS OF CHAPTER X OF THE INCOME TAX ACT, 1961 (ACT); 4. WITHOUT PREJUDICE THE LD. CIT (A) FAILED T O APPRECIATE THAT THE MANNER IN WHICH CHAPTER X OF THE ACT HAD BEEN APPLIED WAS ITS ELF ILLEGAL, WRONG, ARBITRARY AND WITHOUT DUE APPLICATION OF MIND, FOR INTER ALIA THE FOLLOWING AMONGST OTHER GROUNDS :- (A) THE LD. CIT (A) HAS ERRED IN UPHOLDING THE REF ERENCE TO THE TPO MADE BY THE AO DESPITE THE FACT THAT SUCH REFERENCE WAS MADE WI THOUT OBSERVING THE REQUIREMENTS OF LAW AND IN DISREGARD OF THE PRINCIP LES OF NATURAL JUSTICE; (B) THAT THE LD. CIT (A) FAILED TO APPRECIATE THAT THE TPOS REPORT TO THE AO WAS VOID AB INITIO FOR NOT HAVING FOLLOWED THE DUE PROC ESS OF LAW AS PRESCRIBED UNDER THE ACT; AND THAT THE SAID REPORT HAD BEEN MECHANIC ALLY FOLLOWED BY THE ASSESSING OFFICER (AO) WITHOUT GIVING DUE CONSIDERATION TO TH E SEVERAL OBJECTIONS MADE BY THE APPELLANT; (C) THAT THE LD. CIT (A) DID NOT APPRECIATE THAT T HE DUE AND PROPER ADJUSTMENTS IN ARRIVING AT THE ARMS LENGTH PRICE WERE ILLEGALLY DE NIED TO THE APPELLANT; (D) THAT THE LD. CIT (A) FAILED TO APPRECIATE THAT IN COMPUTING THE ARMS LENGTH PRICE THE BENEFIT OF SECTION 92-C (IN PARTICULAR SU B-SECTION 2 THEREOF) HAS BEEN UNFAIRLY AND ILLEGALLY DENIED TO THE APPELLANT; 5. THAT THE LD. CIT (A) FAILED TO APPRECIAT E THAT INTEREST UNDER S. 234 B AND S. 234 D OF THE ACT WAS WRONGLY LEVIED; IN FACT S. 234 D WAS NOT EVEN ON THE STATUTE BOOK; 6. THAT THE IMPUGNED ORDERS ARE BAD IN LA W AND VOID AB INITIO. 3. THE FIRST ISSUE FOR CONSIDERATION RELATES TO DET ERMINING THE ARMS LENGTH PRICE ON ACCOUNT OF ADVERTISING EXPENSES INCURRED BY THE ASSESSEE ON ITS OWN BEHALF. THE FACTS OF THE CASE STATED IN BRIEF ARE THAT MCDONALDS INDIA PVT. LTD. [MIPL] WAS ESTABLISHED AS A WHOLLY OWNED SUBSIDIARY 3 I. T. APPEAL NO. 3017 (DEL) OF 2009 OF MCDONALDS CORPORATION, US [MDC] IN 1993 FOR THE PURPOSE OF SETTING UP MCDONALDS RESTAURANTS IN INDIA. THESE RESTAURANTS ARE BEING OPERATED BY THE ASSESSEE THROUGH JOINT VENTURES BETWEEN THE ASSESSEE AND INDIAN PARTNERS AND BY IND IAN LICENSEES. MCDONALDS CORPORATION IS A GLOBAL FOOD SERVICE RETAILER WITH MORE THAN 30,000 RESTAURANTS IN 21 COUNTRIES. THE ASSESSEE ENTERED INTO A MASTER LICENSE AGREEMENT [MLA] WITH MCDONALDS [MDC] UNDER WHICH IT ACQUIRED A NON-EXCLUSIVE RIGHT, LICENSE AND PRIVILE GE TO ADOPT AND USE THE MCDONALD SYSTEM IN RESTAURANTS IN INDIA. UNDER THE AGREEMENT, IN CONS IDERATION OF SUCH LICENSE THE ASSESSEE WAS REQUIRED TO PAY TO MCDONALDS [MDC] A ROYALTY EQUAL TO 5 PER CENT OF THE GROSS SALES, AND AN INITIAL FRANCHISE FEE AT THE RATE OF US $ 45,000 FO R EACH NEW RESTAURANT OPENED DURING THE YEAR. UNDER THE TERMS OF MASTER LICENSE AGREEMENT, MCDONA LDS [MDC] WAS OBLIGED TO PROVIDE CERTAIN KNOW-HOW AND BUSINESS PROCESSES AND TO REND ER CERTAIN SERVICES IN ORDER TO INTRODUCE MCDONALDS SYSTEMS IN INDIA. 4. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSI NG OFFICER FROM 3 CEB REPORT IDENTIFIED THREE INTERNATIONAL TRANSACTIONS, DETAILED AS BELOW :- S.NO. INTERNATIONAL TRANSACTION METHOD TOTAL VALUE OF TRANSACTION [RS.] 1. PAYMENT OF ROYALTY TO CUP RS.4,20,81, 501 MCDONALDS CORPORATION, US [MDC] 2. FRANCHISEE FEE PAYABLE TO MDC. CUP COU LD NOT BE REMITTED DUE TO RBI APPROVAL. 3. CONSULTING SERVICES CUP RS.1,72,49, 319 RENDERED TO MDC. 5.1 THE ASSESSING OFFICER MADE A REFERENCE UNDER SE CTION 92-CA(1) OF INCOME TAX ACT, 1961 TO THE TRANSFER PRICING OFFICER [TPO] FOR COMPUTATI ON OF ARMS LENGTH PRICE IN RESPECT OF ABOVE- MENTIONED INTERNATIONAL TRANSACTIONS. THE TPO ACC EPTED ALL THE THREE TRANSACTIONS TO BE AT ARMS LENGTH PRICE. THE TPO ALSO ACCEPTED THE COMPARABLE S USED BY THE ASSESSEE AND THE COMPUTATION OF THEIR OPERATING MARGINS IN ITS RULE 10-D DOCUMEN TATION. HOWEVER, TPO DESIRED A RETURN ON 4 I. T. APPEAL NO. 3017 (DEL) OF 2009 THE ADVERTISEMENT EXPENSES AT COST PLUS MARK UP OF 8.37 PER CENT, WHICH WAS THE SAME AS THAT OF TRANSACTION S.NO. 3. THE TPO AFTER CARRYING OUT DE TAILED EXERCISE, DETERMINED ARMS LENGTH PRICE OF ADVERTISEMENT SUPPORT SERVICES PROVIDED TO MDC, COMPUTED AT COST PLUS 8.37 PER CENT WHICH WORKED OUT TO BE RS.1,55,52,470/-. THE ASSESSING O FFICER WAS ASKED TO ENHANCE THE TOTAL INCOME OF THE ASSESSEE BY AN AMOUNT OF RS.1,55,52,470/- ON ACCOUNT OF ADVERTISING EXPENSES. 5.2 ON APPEAL, THE LD. CIT (APPEALS) UPHELD THE ORD ER PASSED BY THE ASSESSING OFFICER MAKING ADJUSTMENT OF RS.1,55,52,470/- IN DETERMINING THE A RMS LENGTH PRICE FOR SERVICES SUPPORT ON ACCOUNT OF ADVERTISING EXPENSES INCURRED BY THE ASS ESSEE. 6. BEFORE US THE LD. AR OF THE ASSESSEE SUBMITTED T HAT THE ASSESSING OFFICER MADE REFERENCE TO TPO IN RESPECT OF THREE INTERNATIONAL TRANSACTIO NS, WHICH HAVE BEEN FOUND TO BE AT ARMS LENGTH PRICE BY THE TPO. HOWEVER, THE TPO ON ITS OWN HAD INCLUDED THE ADVERTISEMENT EXPENSES INCURRED BY THE ASSESSEE FOR THE DETERMINATION OF A RMS LENGTH PRICE. IT HAS BEEN SUBMITTED THAT THE TPO IS NOT COMPETENT TO INCLUDE SUO MOTO A TR ANSACTION WHICH WAS NOT REFERRED BY THE AO UNDER SECTION 92-CA(1) OF THE ACT. HE PLACED RELIA NCE ON THE DECISION OF ITAT, DELHI BENCH A IN THE CASE OF AMADEUS INDIA P. LTD. VS. ACIT ( 2011) 10 TAXMAN.COM 88 (DEL.) WHICH HAS BEEN UPHELD BY HONBLE DELHI HIGH COURT IN THEIR JU DGEMENT DELIVERED ON 28 TH NOVEMBER, 2011 IN I.T.A. NO. 938 OF 2011 IN THE CASE OF CIT VS. AM ADEUS INDIA P. LTD. THEREFORE, IT HAS BEEN SUBMITTED THAT ADDITION MADE BY THE ASSESSING OFFIC ER AND UPHELD BY THE LD. CIT (A) IN RESPECT OF DETERMINATION OF ARMS LENGTH PRICE IN RELATION TO A DVERTISING EXPENSES IS BAD IN LAW. ON THE OTHER HAND, THE LD. SR. DR SUPPORTED THE ORDER OF T HE LD. CIT (APPEALS). 7. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. UNDER SECTION 92-CA(1) WHERE ANY PERSON BEING THE ASSESSE E HAS ENTERED INTO AN INTERNATIONAL TRANSACTION IN ANY PREVIOUS YEAR, AND THE ASSESSING OFFICER CONSIDERS IT NECESSARY OR EXPEDIENT TO DO SO, HE MAY, WITH THE PREVIOUS APPROVAL OF THE C OMMISSIONER REFER THE COMPUTATION OF ARMS LENGTH PRICE IN RELATION TO THE SAID INTERNATIONAL TRANSACTION UNDER SECTION 92-C TO THE TRANSFER PRICING OFFICER. UNDER SECTION 92CA(2) WHERE A REF ERENCE IS MADE UNDER SUB SECTION (1) OF 5 I. T. APPEAL NO. 3017 (DEL) OF 2009 SECTION 92CA, THE TRANSFER PRICING OFFICER SHALL SE RVE A NOTICE ON THE ASSESSEE REQUIRING HIM TO PRODUCE OR CAUSE TO BE PRODUCED ON A DATE TO BE SPE CIFIED THEREIN, ANY EVIDENCE ON WHICH THE ASSESSEE MAY RELY IN SUPPORT OF COMPUTATION MADE BY HIM OF THE ARMS LENGTH PRICE IN RELATION TO INTERNATIONAL TRANSACTIONS REFERRED TO IN SUB-SECTI ON (1). ON PLAIN READING OF PROVISIONS OF SUB SECTION (1) AND SUB SECTION (2) OF SECTION 92CA IT IS CLEAR THAT THE TPO HAS TO COMPUTE THE ARMS LENGTH PRICE IN RELATION TO THE INTERNATIONAL TRANS ACTIONS REFERRED TO HIM BY THE ASSESSING OFFICER. SUB SECTION (2A) TO SECTION 92-CA WAS INSERTED BY F INANCE ACT, 2011 WITH EFFECT FROM 1/6/2011, ACCORDING TO WHICH WHERE ANY OTHER INTERNATIONAL T RANSACTION [OTHER THAN AN INTERNATIONAL TRANSACTION REFERRED UNDER SUB SECTION (1)] COMES T O THE NOTICE OF TPO DURING THE COURSE OF THE PROCEEDINGS BEFORE HIM, THE PROVISIONS OF THIS CHAP TER SHALL APPLY AS IF SUCH INTERNATIONAL TRANSACTION IS AN INTERNATIONAL TRANSACTION REFERRE D TO HIM UNDER SUB SECTION (1). THEREFORE, PRIOR TO 1/6/2011 THE TPO COULD NOT HAVE SELECTED ANY TRA NSACTION SUO MOTO FOR COMPUTATION OF ARMS LENGTH PRICE. IN THE INSTANT CASE, THE ASSESSING O FFICER MADE REFERENCE UNDER SECTION 92CA(1) IN RESPECT OF THREE INTERNATIONAL TRANSACTIONS AND TH E LD. TPO IN HIS ORDER DATED 17 TH MARCH, 2005 HAD FOUND THOSE INTERNATIONAL TRANSACTIONS AT ARMS LENGTH. HOWEVER HE HAD RECOMMENDED ADDITION OF RS.1,55,52,470/- IN RESPECT OF ADVERTIS ING EXPENSES INCURRED BY THE ASSESSEE WHICH WAS NOT REFERRED TO HIM BY THE ASSESSING OFFICER. THEREFORE, THE COMPUTATION OF ARMS LENGTH PRICE IN RESPECT OF ADVERTISING EXPENSES IS NOT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 92CA(1) OF THE ACT. THE PROVISIONS OF SUB SECTION (2A) OF SECTION 92CA INSERTED FROM 1/6/2011 DO NOT EMPOWER THE TPO TO DETERMINE ARMS LENGTH PR ICE IN RESPECT OF AN INTERNATIONAL TRANSACTION, WHICH WAS NOT REFERRED TO HIM BY THE A SSESSING OFFICER. ITAT, DELHI BENCH A IN THE CASE OF CIT VS. AMADEUS INDIA PVT. LTD. (SUPRA) HAS HELD THAT AS PER SECTION 92CA(1), THE TPO CAN SUGGEST ADJUSTMENT IN INTERNATIONAL TRANSAC TION ENTERED INTO BY AN ASSESSEE WITH ITS ASSOCIATE ENTERPRISES, WHICH WERE SENT TO HIM FOR C OMPUTATION OF ARMS LENGTH PRICE BY THE ASSESSING OFFICER. SUO MOTO, HE CANNOT TAKE COGNIZ ANCE OF ANY INTERNATIONAL TRANSACTION FOR SUGGESTING ADJUSTMENT IN ARMS LENGTH PRICE. 8. THE REVENUE FILED APPEAL BEFORE HONBLE DELHI H IGH COURT AGAINST THE DECISION OF ITAT, DELHI BENCH IN THE CASE OF AMADEUS INDIA PVT. LTD. AND SUBSTANTIAL QUESTION OF LAW FOR THE CONSIDERATION OF THEIR LORDSHIPS WAS AS UNDER :- 6 I. T. APPEAL NO. 3017 (DEL) OF 2009 WHETHER, ON THE FACTS AND CIRCUMSTANCE OF THE CASE, THE INCOME TAX APPELLATE TRIBUNAL ERRED IN DECIDING THAT THE TRANSFER PRICIN G OFFICER [TPO] COULD NOT TAKE COGNIZANCE SUO MOTO OF ANY INTERNATIONAL TRANSACTIO N FOR ADJUSTMENT IN THE ARMS LENGTH PRICE [ALP] UNDER SECTION 92-CA OF THE INCOM E TAX ACT, 1961 ? 9. HONBLE DELHI HIGH COURT AFTER DISCUSSING THE IS SUE IN DETAIL HAS UPHELD THE VIEW TAKEN BY THE ITAT. IT HAS ALSO BEEN HELD THAT PROVISIONS OF SUB SECTION (2A) OF SECTION 92CA CAN HAVE PROSPECTIVE EFFECT FROM 1/6/2011. HONBLE DELHI HI GH COURT WHILE DECIDING THE ISSUE IN FAVOUR OF THE ASSESSEE HAS HELD AS UNDER:- 24. WE DO NOT AGREE WITH THE SUBMISSION MAD E BY THE LEARNED COUNSEL FOR THE REVENUE THAT WHEN A REFERENCE IS MADE BY AN ASS ESSING OFFICER TO THE TRANSFER PRICING OFFICER, THE REFERENCE INCLUDES THE ENTIRE GAMUT OF TRANSACTIONS BETWEEN THE ASSESSEE AND ITS ASSOCIATED ENTERPRISE. THE AS SESSING OFFICER IS THE PERSON WHO HAS BEEN ENTRUSTED WITH THE DUTY TO DETERMINE AS TO WHETHER A TRANSACTION IS AN INTERNATIONAL TRANSACTION OR NOT. THEN, IF IT IS A N INTERNATIONAL TRANSACTION OF THE NATURE SPECIFIED IN SECTION 92-B OF THE SAID ACT, T HE ASSESSING OFFICER HAS TO DETERMINE THE INCOME OF THE ASSESSEE HAVING REGARD TO THE ARMS LENGTH PRICE BY FOLLOWING THE METHOD PRESCRIBED IN SECTION 92-C. I F, FOR SOME REASON, THE ASSESSING OFFICER FEELS THAT IT IS NECESSARY OR EXP EDIENT SO TO DO, HE MAY REFER THE COMPUTATION OF THE ARMS LENGTH PRICE OF SPECIFIC I NTERNATIONAL TRANSACTIONS, AFTER OBTAINING THE PRIOR APPROVAL OF THE COMMISSIONER OF INCOME TAX, TO THE TRANSFER PRICING OFFICER. IT IS QUITE POSSIBLE THAT IN THE CASE OF A PARTICULAR ASSESSEE, THERE MAY BE SEVERAL INTERNATIONAL TRANSACTIONS AND THE A SSESSING OFFICER MAY ONLY WISH TO REFER SOME OF THOSE INTERNATIONAL TRANSACTI ONS FOR THE PURPOSES OF COMPUTING THE ARMS LENGTH PRICE WHILE IN RESPECT O F OTHERS, HE MAY COMPUTE THE ARMS LENGTH PRICE HIMSELF. THUS, THE JURISDICTION OF THE TRANSFER PRICING OFFICER IS LIMITED AND RESTRICTED TO COMPUTING THE ARMS LE NGTH PRICE OF ONLY THOSE INTERNATIONAL TRANSACTIONS WHICH HAVE BEEN SPECIFIC ALLY REFERRED TO HIM BY THE 7 I. T. APPEAL NO. 3017 (DEL) OF 2009 ASSESSING OFFICER. WE ONCE AGAIN CLARIFY THAT THIS IS THE POSITION PRIOR TO THE INTRODUCTION OF SUB SECTION (2A) OF THE SAID ACT WH ICH WE HAVE HELD TO BE PROSPECTIVE IN OPERATION. 25. IN VIEW OF THE FOREGOING DISCUSSION, THE SUBSTANTIAL QUESTION OF LAW FORMULATED IN PARAGRAPH 1 IS ANSWERED IN THE NEGATI VE AS WE ARE OF THE VIEW THAT THE INCOME TAX APPELLATE TRIBUNAL COMMITTED NO ERRO R IN DECIDING THAT THE TRANSFER PRICING OFFICER COULD NOT TAKE COGNIZANCE SUO MOTO OF ANY INTERNATIONAL TRANSACTION FOR ADJUSTMENT IN THE ARMS LENGTH PRIC E UNDER SECTION 92-C OF THE INCOME TAX ACT, 1961. AS A CONSEQUENCE, THE REVENU ES APPEAL IS DISMISSED. THERE SHALL BE NO ORDER AS TO COSTS. 10. IN VIEW OF DECISION OF HONBLE DELHI HIGH COURT IT IS HELD THAT TPO COULD NOT TAKE COGNIZANCE SUO MOTO OF ANY INTERNATIONAL TRANSACTIO N FOR COMPUTATION IN ARMS LENGTH PRICE UNDER SECTION 92-C OF THE INCOME TAX ACT. THE PROVISIONS OF SECTION 92-CA(2A) ARE PROSPECTIVE IN NATURE AND WILL NOT APPLY FOR THE ASSESSMENT YEAR U NDER CONSIDERATION I.E. ASSESSMENT YEAR 2002-03. WE, THEREFORE, DECIDE THE APPEAL IN FAVOU R OF THE ASSESSEE. THE ASSESSING OFFICER IS DIRECTED TO DELETE THE ADDITION OF RS.1,55,52,470/- , MADE ON THE BASIS OF THE REPORT OF THE TPO. 11. THE NEXT ISSUE FOR CONSIDERATION RELATES TO CHA RGING OF INTEREST UNDER SECTION 234-B AND 234-D OF THE ACT. CHARGING OF INTEREST UNDER SECTI ON 234-B AND 234-D ARE MANDATORY IN VIEW OF DECISION OF HONBLE SUPREME COURT IN THE CASE OF AN JUM M.H. GHASWALA 252 ITR PAGE 1 (SC). HOWEVER, PROVISIONS OF SECTION 234-D HAVE BEEN INSE RTED IN THE STATUTE WITH EFFECT FROM 1/06/2003, WHICH HAVE BEEN HELD APPLICABLE FROM ASS ESSMENT YEAR 2004-05 BY THE SPECIAL BENCH OF THE ITAT IN THE CASE OF EKTA PROMOTERS P. LTD. 1 13 I.T.D. 719 (DEL.) (SB). THEREFORE, 234-B INTEREST WILL BE CHARGEABLE ON TAX PAYABLE BY THE A SSESSEE AFTER GIVING EFFECT TO THIS ORDER. HOWEVER, INTEREST UNDER SECTION 234-D OF THE ACT WI LL NOT BE LEVIABLE IN ASSESSMENT YEAR 2002-03 UNDER CONSIDERATION. THE ASSESSING OFFICER IS DIRE CTED ACCORDINGLY. 8 I. T. APPEAL NO. 3017 (DEL) OF 2009 12. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON : 16 TH DECEMBER, 2011. SD/- SD/- [ I. P. BANSAL ] [ K. D. RANJAN ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 16 TH DECEMBER, 2011 . * MEHTA * COPY OF THE ORDER FORWARDED TO : - 1. APPELLANT. 2. RESPONDENT. 3. CIT, 4. CIT (APPEALS), 5. SR. DR, ITAT, NEW DELHI. TRUE COPY. BY ORDER. ASSISTANT REGISTRAR, ITAT.