DCIT 8(2), MUMBAI V. PATEL ENGINEERING LTD, MUMBAI

ITA 3037/MUM/2012

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9049 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 8 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: K
• Next Hearing Date: 13-10-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 03-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N PADMANABHAN
• Assessee Lawyers: MA YUR KISHNADWALA
• Keywords: Transfer pricing; Wholly owned subsidiary; Notional interest
• Section: 92B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH K, MUMBAI BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER ITA NO.3037/MUM/2012 (ASSESSMENT YEAR 2006-07) THE ACIT, CEN.CIR.25, R.NO.404, 4 TH FLOOR, AAYKAR BHAVAN,M.K.ROAD, MUMBAI 400 020 ...... APPELLANT VS. M/S. PATEL ENGINEERING LTD. PATEL ESTATE, S.V.ROAD, JOGESHWARI (WEST), MUMBAI 400 058 PAN: AAACP 2567L .... RESPONDENT APPELLANT BY : SHRI N.PADMANABHA N RESPONDENT BY : SHRI MAYUR KISHNADWALA DATE OF HEARING : 25/08/2016 DATE OF PRONOUNCEMENT : 13/0 1/2017 ORDER PER G.S.PANNU,A.M: THE CAPTIONED APPEAL FILED BY THE ASSESSEE PERT AINING TO ASSESSMENT YEAR 2006-07 IS DIRECTED AGAINST AN ORDER PASSED BY CIT(A)-15, MUMBAI DATED 21/02/2012, WHICH IN TURN, ARISES OUT OF AN ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 144C(3) R.W.S. 147 OF TH E INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 02/02/2011. 2. IN THIS APPEAL THE REVENUE HAS RAISED THE FOLL OWING GROUND OF APPEAL:- 2 ITA NO.3037/MUM/2012 (ASSESSMENT YEAR 2006-07) A. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) ERRED IN HOLDING THAT ADJUSTMENT ARRIVED AT BY THE TRANSFER PRICING OFFICER IN RESPECT OF NOTIONAL INTEREST IS NOT JUS TIFIABLE AND DIRECTED THE SAID ADJUSTMENT TO BE DELETED. 3. THE GRIEVANCE OF THE REVENUE IN THIS APPEAL IS W ITH RESPECT TO THE ACTION OF THE CIT(A) IN HOLDING THAT ADDITION OF RS.78,48, 476/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF THE TRANSFER PRICING ADJUSTME NT IS NOT MAINTAINABLE. BRIEFLY PUT, THE FACTS RELEVANT TO APPRECIATE THE C ONTROVERSY IN THIS APPEAL CAN BE SUMMARIZED AS FOLLOWS. THE RESPONDENT ASSESSEE IS A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 AND IS INTER-ALIA ENGAGED IN THE BUSINESS OF CIVIL CONTRACTING PROJEC TS LIKE DAMS, TUNNELS, INDUSTRIAL COMPLEXES, BUILDING ROADS ETC. IT WAS N OTICED BY THE ASSESSING OFFICER THAT DURING THE YEAR UNDER CONSIDERATION AS SESSEE WAS IN RECEIPT OF A SUM OF RS.11,18,88,600/- FROM ITS WHOLLY OWNED SUBS IDIARY PATEL ENGG. INC( IN SHORT PEI). THE AFORESAID AMOUNT REPRESENTED A S UM OF US $27,00,000 REMITTED BY PEI FOR BUY-BACK OF SHARES HELD BY THE ASSESSEE IN PEI @ US $20.35 PER SHARE. SINCE IT WAS AN INTERNATIONAL TRANSACTI ON WITHIN THE MEANING OF SECTION 92B OF THE ACT, THE ASSESSING OFFICER REFER RED THE MATTER TO THE TRANSFER PRICING OFFICER UNDER SECTION 92CA(1) OF T HE ACT. THE TRANSFER PRICING OFFICER VIDE ORDER DATED 30/10/2009 PASSED UNDER SE CTION 92CA(3) PROPOSING AN ADJUSTMENT OF RS.78,48,476/-. 3.1 DURING THE YEAR UNDER CONSIDERATION, THE SUBSID IARY OF THE ASSESSEE PEI DECIDED TO REDUCE ITS SHARE CAPITAL AND ACCORDINGLY UNDERTOOK BUY-BACK OF THE EQUITY SHARES HELD BY THE ASSESSEE @ US $ 20.35 PER SHARES. THE BACKGROUND OF THE TRANSACTION IS THAT SOMEWHERE IN 1997, ASSES SEE DECIDED TO EXPLORE BUSINESS OPPORTUNITY IN USA AND ACCORDINGLY, ACQUIR ED 1,22,846 SHARES OF ASI 3 ITA NO.3037/MUM/2012 (ASSESSMENT YEAR 2006-07) RCC INC. USA FOR A CONSIDERATION OF US $20.35 PER S HARE TOTALLING TO US $25,00,000 (EQUIVALENT TO INR 9,73,25,475/-). THE SAID CONCERN WAS ENGAGED IN THE BUSINESS OF GENERAL CONTRACTOR FOCUSSING ON RO LLER COMPACTED CONCRETE DAM CONSTRUCTION, RENOVATION AND ALSO PROVIDED CON STRUCTION MANAGEMENT SERVICES FOR PROJECT IN FOREIGN COUNTRIES. IN 1999 , ASSESSEE DECIDED TO RESTRUCTURE ITS US OPERATIONS BY FORMING A HOLDING COMPANY IN USA AND ACCORDINGLY PEI WAS INCORPORATED. THE ASSESSEE MAD E EQUITY INVESTMENTS IN PEI, ITS 100% SUBSIDIARY. AS PART OF THE RESTRUCT URING PLAN, THE SHARES OF PEI WERE SUBSCRIBED BY THE ASSESSEE AT USD 20.35 PER SH ARE AND IN-TURN PEI INVESTED THE SUM IN ACQUIRING CONTROL OVER ASI RCC INC.USA AT THE SAME RATE I.E. US $ 20.35. DURING THE YEAR UNDER CONSIDERATION, A SI RCC INC. USA WAS HAVING EXCESS FUNDS AND, THEREFORE, IT REDEEMED THE PREFER ENCE SHARES HELD BY PEI. ON ACCOUNT OF AVAILABILITY OF FUNDS DUE TO REDEMPTI ON OF PREFERRED STOCK BY ASI RCC INC. USA, PEI USED SUCH FUNDS TO REDUCE ITS SHA RE CAPITAL AND ACCORDINGLY, BOUGHT-BACK ITS EQUITY SHARES HELD BY THE ASSESSEE @ US $ 20.35 PER SHARE. IN THIS MANNER PEI REMITTED THE IMPUGNED FUNDS TO ASSE SSEE COMPANY AS RETURN OF EQUITY. 3.2 ON BEING SHOW-CAUSED BY THE TRANSFER PRICING OF FICER, ASSESSEE POINTED OUT THAT THE NET ASSET VALUE(NAV) OF PEI WAS NEGATI VE AND, THEREFORE, THE BUY- BACK OF SHARES AT A PRICE NOT LESS THAN US $ 20.35 PER SHARE WAS AT ARMS LENGTH PRICE. THE TRANSFER PRICING OFFICER CONSIDERED THE ENTIRE TRANSACTION AS A MEANS BY WHICH ASSESSEE COMPANY HAD PROVIDED ACCOMM ODATION TO ITS US SUBSIDIARY IN THE FORM OF PROVIDING THE FUND BY WAY OF EQUITY AND THAT SUCH AN ACCOMMODATION WAS WITHOUT ADEQUATE CONSIDERATION. IN FACT, THE TRANSFER PRICING OFFICER NOTES THAT THE ENTIRE TRANSACTION CAN BE VIEWED AS SHAM 4 ITA NO.3037/MUM/2012 (ASSESSMENT YEAR 2006-07) TRANSACTION AND THAT THE ASSESSEE HAS NOT BROUGHT ANY NEW FACTS TO CONV INCE THE GENUINENESS OF THE INVESTMENT IN THE FORM OF S HARES . THE TRANSFER PRICING OFFICER WENT ON TO HOLD THAT SUCH ARRANGEMENT ON TRANSACTION WAS NOTHING BUT INTEREST-FREE ADVANCE OF THE FUNDS TO THE US SUBSID IARY, THEREFORE, ACCORDING TO THE TRANSFER PRICING OFFICER IN AN ARMS LENGTH SCE NARIO ASSESSEE WAS ENTAILED TO EARN INTEREST ON THE FUNDS PROVIDED TO ITS US SU BSIDIARY. THE TRANSFER PRICING OFFICER NOTED THAT WITH RESPECT TO CERTAIN OTHER AMOUNT ADVANCED TO THE ASI RCC INC. USA AS A LOAN, ASSESSEE HAD EARNED INTEREST @ 6.75% AND HE ADOPTED THE SAME RATE AS ARMS LENGTH RATE AND COM PUTED INTEREST OF RS.78,48,476/- ON THE IMPUGNED SUM FOR THE INSTANT YEAR CALCULATED UPTO THE DATE ON WHICH THE AMOUNT WAS REMITTED TO THE ASSESS EE. THE ASSESSING OFFICER HAS PASSED AN ORDER MAKING AN ADDITION OF R S. 78,48,476/- TO THE RETURNED INCOME IN CONFORMITY WITH THE ADJUSTMENT P ROPOSED BY THE TRANSFER PRICING OFFICER. 3.3 BEFORE CIT(A), ASSESSEE PLACED RELIANCE ON THE MATERIAL SUBMITTED TO THE TRANSFER PRICING OFFICER DURING THE PROCEEDINGS UND ER SECTION 92CA OF THE ACT AND ALSO REITERATED THE STAND TAKEN BEFORE THE TRAN SFER PRICING OFFICER. THE CIT(A) NOTED FALLACY IN THE APPROACH OF THE TRANSF ER PRICING OFFICER AND CAME TO CONCLUDE THAT THE ADJUSTMENT ARRIVED AT BY THE T RANSFER PRICING OFFICER ON ACCOUNT OF NOTIONAL INTEREST WAS NOT JUSTIFIED. A CCORDING TO THE CIT(A) TRANSFER PRICING OFFICER WAS WRONG IN ASSUMING THE INSTANT T RANSACTION AS ADVANCEMENT OF INTEREST FREE LOAN TO THE SUBSIDIARY AND IMPUTA TION OF NOTIONAL INTEREST AND THAT TOO ONLY FOR THE YEAR UNDER CONSIDERATION UPT O THE DATE OF REMITTANCE, CONSIDERING THAT THE INVESTMENT IN SHARES OF PEI HA D BEEN MADE BY THE ASSESSEE IN THE PAST YEARS. THE CIT(A) HAS ALSO NO TED THAT THE TRANSFER PRICING 5 ITA NO.3037/MUM/2012 (ASSESSMENT YEAR 2006-07) OFFICER HAD NOT DISPUTED THE VALUATION OF THE SHARE S OF THE SUBSIDIARY EITHER AT THE TIME OF ITS ACQUISITION BY THE ASSESSEE IN THE PAST YEARS OR EVEN DURING THE YEAR AT THE TIME OF BUY-BACK OF SHARES BY PEI. THE ORDER OF THE CIT(A) DIRECTING THE DELETION OF THE ADDITION OF RS.78,48,476/- HAS BEEN CHALLENGED BEFORE US. 3.4 AS THE CANVASSED GROUND OF APPEAL RAISED BY THE REVENUE SHOWS THAT NO SPECIFIC POINT HAS BEEN RAISED TO ASSAIL THE FI NDING OF THE CIT(A). NEVERTHELESS, AT THE TIME OF HEARING, THE LD. DEPAR TMENTAL REPRESENTATIVE CONTENDED THAT THE MATTER BE RESTORED BACK TO THE F ILE OF THE ASSESSING OFFICER /TRANSFER PRICING OFFICER FOR EXAMINING AFRESH THE VALUE ADOPTED BY THE SUBSIDIARY PEI TO BUY-BACK THE SHARES AS TO WHETHER THE SAME WAS AT AN ARM'S LENGTH PRICE OR NOT. 3.5 ON THE OTHER HAND, LD. REPRESENTATIVE FOR THE A SSESSEE POINTED OUT THAT THE CIT(A) HAD MADE NO MISTAKE IN DELETING THE ADDI TION BECAUSE THE ACTION OF THE TRANSFER PRICING OFFICER WAS WITHOUT JURISDICT ION. IT WAS POINTED OUT THAT THE TRANSACTION WAS CLEARLY OF INVESTMENT IN SHARES , WHICH HAS BEEN RETURNED ON ACCOUNT OF BUY-BACK OF SHARES BY INVESTEE CONCER N AND THEREFORE, IT COULD NOT HAVE BEEN TREATED AS A LOAN TRANSACTION SO AS T O IMPUTE ANY NOTIONAL INTEREST THEREOF. IN THE COURSE OF HEARING, LD. RE PRESENTATIVE FOR THE ASSESSEE PLACED RELIANCE ON THE FOLLOWING DECISIONS TO SUBMI T THAT THE ACTION OF THE TRANSFER PRICING OFFICER WAS UNWARRANTED AND THE CI T(A) WAS JUSTIFIED IN DELETING THE ADDITION:- (I) AEGIS LTD. VS. ADDL. CIT , ITA NO.1213/MUM/201 4, A.Y. 2009-10 DATED 27/07/2015. (II) DIT V. BESIX KIER DABHOL SA, 26 TAXMANN.COM 16 9 (BOM) (III) ADITYA BIRLA MINACS WORLDWIDE LTD. DCIT, 56 TAXMANN.COM, 317 (MUM-TRIB)2015 6 ITA NO.3037/MUM/2012 (ASSESSMENT YEAR 2006-07) (IV) PARLE BISCUITS (P) LTD. VS. DCIT, 46 TAXMANN.C OM 11 (MUM-TRIB) 2014 (V) DCIT V. VIKAAS OBEROI 37 TAXMANN.COM 46 (MUM-TRIB) 2014 (VI) ALCARGO GLOBAL LOGISTICS LTD. VS. ACT, ITA NOS. 4909 & 4910/MUM/2012, DATED 11/06/20 14. 4. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. THE FACTUAL MATRIX HAS BEEN APPROPRIATELY NOTICED BY US IN THE EARLIER PARAS AND IS NOT BEING REPEATED FOR THE SAKE OF BREVITY. SO HOWEVER, THE FACT-SITUATION WHICH CLEARLY STANDS OUT IS THAT ASSESSEE COMPANY HAD INVESTED IN THE EQUITY SHARES OF ITS SUBSIDIARY IN USA IN THE PAST YEARS AND DURING THE YEAR UNDER CONSIDERATION, THE SUBSIDIARY HAS UNDERTAKEN REDEMPTION OF SHARE C APITAL BY BUY-BACK OF THE EQUITY SHARES HELD BY THE ASSESSEE. THE INVESTMENT BY THE ASSESSEE IN THE EQUITY SHARES OF THE SUBSIDIARY WAS UNDERTAKEN IN T HE PAST @ US $20.35 PER SHARE AND DURING THE YEAR UNDER CONSIDERATION THE S UBSIDIARY HAS UNDERTAKEN BUY-BACK AT THE SAME RATE I.E. US $20.35 PER SHARES . THE NATURE OF THE SAID TRANSACTION HAS BEEN DISBELIEVED BY THE TRANSFER PR ICING OFFICER, WHO HAS RE- CHARACTERIZED IT AS PROVISION OF LOAN/FUND BY THE ASSESSEE TO ITS SUBSIDIARY ON INTEREST-FREE BASIS IN THE GARB OF INVESTMENT IN E QUITY OF THE SUBSIDIARY. IT IS A TRITE LAW THAT THE TRANSFER PRICING PROCEEDINGS DO NOT ENVISAGE EMPOWERING OF THE TRANSFER PRICING OFFICER TO RE-CHARACTERIZE THE TRANSACTIONS ON THE BASIS OF HIS OWN WHIMS AND FANCIES. IN THE PRESENT CASE, TH E CIT(A) HAS CORRECTLY BROUGHT OUT THAT THE TRANSACTIONS OF INVESTMENT AND BUY-BACK OF SHARES HAS BEEN SPREAD OVER MORE THAN ONE YEAR AND THAT THERE WAS NO MATERIAL TO SUGGEST THAT THE STATED TRANSACTIONS WERE UNREAL. 7 ITA NO.3037/MUM/2012 (ASSESSMENT YEAR 2006-07) 4.1 EVEN WITH REGARD TO THE VALUE AT WHICH THE BUY- BACK OF SHARES HAS BEEN UNDERTAKEN BY THE INVESTEE SUBSIDIARY COMPANY, THE CIT(A) NOTED THAT THE VALUATION OF SHARES HAS NOT BEEN DISPUTED BY THE TR ANSFER PRICING OFFICER DURING THE PROCEEDINGS BEFORE HIM. IN FACT, THE CIT(A) HA S CATEGORICALLY OBSERVED THAT THE TRANSFER PRICING OFFICER IN HIS ORDER HAS OBSER VED THE PER SHARE PRICE OF THE SHARES AS REFLECTED IN THE BALANCE SHEET OF THE ASS ESSEE FOR THE VARIOUS YEARS. ON THIS POINT, WE ALSO NOTE THAT BEFORE THE TRANSFE R PRICING OFFICER, ASSESSEE HAD GIVEN JUSTIFICATION OF THE BUY-BACK PRICE BY P OINTING-UP THE NAV OF THE INVESTEE COMPANY ON THE DATE OF BUY-BACK, WHICH WAS MUCH LOWER THAN BUY- BACK PRICE. WE FIND NOTHING ADVERSE ON SUCH ASSERT IONS OF THE ASSESSEE. THEREFORE, UNDER THESE CIRCUMSTANCES, IN OUR VIEW, THE CIT(A) HAS MADE NO MISTAKE IN DELETING THE ADDITION. 4.2 ON THE ISSUE OF AS TO WHETHER THE TRANSFER PRIC ING OFFICER IS COMPETENT TO RE-CHARACTERIZE A TESTED TRANSACTION, THE LD. RE PRESENTATIVE FOR THE ASSESSEE HAD PLACED RELIANCE ON THE JUDGMENT OF HON'BLE BOMB AY HIGH COURT IN THE CASE OF BESIX KIER DABHOL SA(SUPRA) THE ASSESSEE BEFORE THE HON'BLE BOMBAY HIGH COURT WAS A NON-RESIDENT COMPANY, WHOSE EQUITY CAPI TAL WAS JOINTLY OWNED BY THE TWO JOINT VENTURE PARTNERS IN A CERTAIN RATIO. APART FROM RECEIPT OF CAPITAL, ASSESSEE COMPANY HAD ALSO RAISED LOANS FROM THE TWO EQUITY HOLDERS ON WHICH INTEREST WAS PAID. THE REVENUE DISALLOWED THE PAYM ENT OF INTEREST ON THE GROUND THAT SUCH RAISING OF LOAN WAS ALSO TO BE VIE WED AS RAISING OF EQUITY AND, THEREFORE, INTEREST WAS DISALLOWABLE. THE TRIBUNAL DISAGREED WITH THE STAND OF THE REVENUE AND NOTED THAT THERE WAS NO PROVISION UNDER THE ACT BY WHICH EQUITY COULD BE RE-CHARACTERIZED INTO DEBT AND VICE -VERSA. THE TRIBUNAL ALSO NOTED THAT AT THE RELEVANT POINT OF TIME THERE WERE NO RULES WITH REGARD TO 8 ITA NO.3037/MUM/2012 (ASSESSMENT YEAR 2006-07) THIN CAPITALIZATION SO AS TO CONSIDER THE DEBT AS E QUITY AND THAT SUCH A PROPOSAL WAS ONLY PART OF DIRECT TAXES CODE BILL OF 2010 AS A PART OF GENERAL ANTI AVOIDANCE RULES (GAAR) AND THAT IN THE ABSENCE OF A NY SUCH STATUTORY PROVISION THE STAND OF THE REVENUE COULD NOT BE UPH ELD. THE AFORESAID REASONING HAS BEEN APPROVED BY THE HON'BLE BOMBAY H IGH COURT. IN OUR CONSIDERED OPINION , THE RATIO OF THE REASONING APP ROVED BY THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF BESIX KIER DABHOL SA (SUPRA) CLEARLY MILITATES AGAINST THE ACTION OF THE TRANSFER PRICING OFFICER IN RE-CHARACTERIZING THE TRANSACTION OF INVESTMENT IN THE EQUITY SHARES OF T HE SUBSIDIARY AS A LOAN TRANSACTION IN THE INSTANT CASE. TO THE SIMILAR E FFECT ARE THE DECISIONS OF THE MUMBAI TRIBUNAL RELIED UPON BY THE ASSESSEE BEFORE US. THEREFORE, IN OUR VIEW, THE STAND OF THE TRANSFER PRICING OFFICER HAS BEEN RIGHTLY NEGATED BY THE CIT(A). 4.3 BEFORE PARTING, WE REFER TO THE ARGUMENT SET-UP BY THE LD. DEPARTMENTAL REPRESENTATIVE THAT THE MATTER OF VALUATION OF SHA RES BE EXAMINED AFRESH BY THE TRANSFER PRICING OFFICER AS PER THE DISCOUNTED CASH FLOW(DCF) METHOD AND IN THIS CONTEXT, HE REFERRED TO THE DECISION OF THE CHENNAI BENCH OF THE TRIBUNAL IN THE CASE OF M/S. ASCENDAS (INDIA) PVT. LTD. VS. DCIT, IN ITA NO.1460/MDS/2012 DATED 12/03/2013, WHEREIN REFERENC E TO SUCH A METHOD HAS BEEN MADE. IN OUR CONSIDERED OPINION, THE PLEA OF THE LD. DEPARTMENTAL REPRESENTATIVE IS QUITE MISCONCEIVED AND IF IT IS TO BE ACCEPTED, THEN IT WOULD RESULT IN UNNECESSARY PROLONGING OF LITIGATION. WE SAY SO FOR THE REASON THAT AT THE STAGE OF TRANSFER PRICING PROCEEDINGS BEFORE TH E TRANSFER PRICING OFFICER, ASSESSEE HAS IN A DETAILED MANNER FURNISHED THE JU STIFICATION OF THE VALUE AT WHICH SHARES HAVE BEEN BOUGHT BACK BY THE INVESTEE COMPANY. IN FACT, THE 9 ITA NO.3037/MUM/2012 (ASSESSMENT YEAR 2006-07) REPLIES OF THE ASSESSEE HAVE BEEN REPRODUCED BY THE TRANSFER PRICING OFFICER IN HIS ORDER, WHEREIN NOT-ONLY THE VARIOUS METHODOLOGI ES OF VALUATION HAVE BEEN POINTED OUT BUT EVEN THE RESPECTIVE VALUES HAVE AL SO BEEN BROUGHT OUT. FURTHER, NONE OF THE SAME HAVE BEEN CONTROVERTED BY THE TRANSFER PRICING OFFICER IN HIS ORDER AND IN FACT THE CIT(A) HAS SPE CIFICALLY CONCLUDED THAT THE VALUATION OF SHARES HAS NOT BEEN DISPUTED BY THE TR ANSFER PRICING OFFICER EITHER AT THE TIME OF ACQUISITION BY THE APPELLANT OR AT THE TIME OF SALE. THE CIT(A) HAS THEREAFTER GOES ON TO HOLD THAT THE TPO IN THE FACTS OF THE CASE HAS NOT DISPUTED THE ALP OF THIS INTERNATIONAL TRANSAC TION I.E. HE HAS NOT DISPUTED THE VALUATION OF THE SHARES DONE BY THE APPELLANT A ND SUBMITTED TO THE TRANSFER PRICING OFFICER' 4.4 IN VIEW OF THE AFORESAID UNDISPUTED FACT-POSITI ON, REMANDING OF THE MATTER BACK TO THE ASSESSING OFFICER/TRANSFER PRICI NG OFFICER, AS SUGGESTED BY THE LD. DEPARTMENTAL REPRESENTATIVE, WILL AMOUNT T O TRAVESTY OF JUSTICE AND LEAD TO PROLONGING THE LITIGATION, WHICH OUGHT TO B E AVOIDED. THUS, WE FIND NO FORCE IN THE ARGUMENT OF THE LD. DEPARTMENTAL REPRE SENTATIVE , WHICH IS HEREBY REJECTED. 5. RESULTANTLY, APPEAL OF THE REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 13/01/2017 SD/- SD/- ( RAVISH SOOD) (G.S. PANNU) JUDICIAL MEMBER ACCOCUNTANT MEMBER MUMBAI, DATED 13/01/2017 VM , SR. PS 10 ITA NO.3037/MUM/2012 (ASSESSMENT YEAR 2006-07) COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT , 2. THE RESPONDENT. 3. THE CIT(A)- 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI