SHELL INDIA MARKETS P.LTD, MUMBAI V. CIT LTU, MUMBAI

ITA 4911/MUM/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8324 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2010-2011
• Appeal Filed On: 21-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A MOHAN
• Keywords: Business income; Transfer pricing; Principle of natural justice; International transaction; Deemed to accrue or arise in india; Question of law; Initiation of penalty proceedings; Accommodation entries; Reassessment proceedings
• Section: 92C; 143(3); 10AA; 10B; 201; 144C; 264; 113; 13; 147; 68; 148; 263; 144; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH J, MUMBAI BEFORE SHRI R.C. SHARMA (A.M.) & SHRI PAWAN SINGH ( JM) ITA NO. 4911/MUM/2018(ASSESSMENT YEAR: 2010-11) SHELL INDIA MARKETS PVT LTD TRENT HOUSE, FIRST FLOOR, G-BLOCK, PLOT NO.C-60, BANDRA KURLA COMPLEX, BANDRA (E) MUMBAI-400 051 PAN : AAICS1404P VS COMMISSIONER OF INCOME-TAX- LARGE TAX UNITS (LTU) MUMBAI APPELLANT RESPONDEDNT APPELLANT BY SHRI MADHUR AGARWAL ADVOCATE RE SPONDENT BY SHRI A. MOHAN CIT - DR DATE OF HEARING 07. 01-2020 DATE OF PRONOUNCEMENT 15-01-2020 O R D E R PER PAWAN SINGH, JM : 1. THIS APPEAL BY ASSESSEE UNDER SECTION 253 OF INCOME TAX ACT (ACT), IS DIRECTED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX- LARGE TAX UNIT (CIT)(LTU) PASSED UNDER SECTION (U/S ) 263 DATED 25- 06-2018 FOR ASSESSMENT YEAR 2010-11. 2. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE IS A COMP ANY ENGAGED IN BUSINESS OF RETAILING OF SUPPLY OF LUBRICANTS, FILE D ITS RETURN OF INCOME FOR RELEVANT ASSESSMENT YEAR ON 30-09-2010 DECLARIN G LOSS OF RS.52.46 CRORE . SUBSEQUENTLY, THE ASSESSEE REVISED ITS RET URN OF INCOME ON 20- 03-2012 DECLARING LOSS OF RS.35.62 CRORES. ON REPO RTING CERTAIN INTERNATIONAL TRANSACTIONS, REFERENCE WAS MADE TO T RANSFER PRICING 2 ITA NO.4911/MUM/2018 SHELL INDIA MARKETS PVT LTD OFFICER (TPO) FOR COMPUTATION OF ARMS LENGTH S PRICE (APL) OF THE INTERNATIONAL TRANSACTION WITH ITS ASSOCIATED ENTER PRISES (AE). ON RECEIPT OF TPO, THE ASSESSING OFFICER (AO) PASSED A SSESSMENT ORDER U/S 143(3) R.W.S. 144C(13) ON 27-07-2015 DETERMINING IN COME AT RS.159.85 CRORES AND AFTER SET OFF OF BROUGHT FORWA RD LOSSES OF RS.159.85 CRORES, THE INCOME WAS ASSESSED AT NIL. 3. THEREAFTER, THE CASE WAS REOPENED U/S 147 BY ISSUIN G NOTICE U/S 148 ON 30-03-2016. THE ASSESSMENT WAS REOPENED ON THE BAS IS OF INFORMATION FROM INVESTIGATION WING OF REVENUE CALC UTTA THAT ASSESSEE HAS TAKEN ACCOMMODATION ENTRIES FROM TARA TRADING C OMPANY AND ANNAPURNA COMPANY. THE ASSESSMENT WAS COMPLETED U/ S 143(3) R.W.S. 147 ON 29-12-2017 BY MAKING ADDITIONS ON ACC OUNT OF THE ALLEGED BOGUS ENTRY. THEREAFTER, THE ASSESSMENT OR DER DATED 29-12- 2017 REVISED BY LD. CIT(LTU) VIDE ORDER DATED 25-06 -2018. WHILE REVISING THE ASSESSMENT ORDER, THE LD. CIT(LTU) HEL D THAT SCRUTINY OF COMPUTATION OF DEDUCTION U/S 10B REVEALED THAT WHIL E COMPUTING PROFIT OF UNIT ELIGIBLE, THE ASSESSEE COMPANY HAD A DDED BACK DEEMED MARK UP OF RS.56.75 CRORES IN RESPECT OF TRANSACTIO N WITH OVERSEAS RELATED PARTIES. THIS ADDITION WAS ON ACCOUNT OF D EEMED MARK UP OF 18% ON NON E&P SERVICES AND P&T UNIT MADE BY ASSESS EE TO BRING THE INTERNATIONAL TRANSACTION WITHIN ARM S LENGTH PRICE (ALP). SUCH 3 ITA NO.4911/MUM/2018 SHELL INDIA MARKETS PVT LTD ADDITIONS ARE GOVERNED BY THE PROVISIONS OF SECTION 92C. AS PER PROVISO OF SECTION 92C(4), THE ADDITION OF RS.56.75 CRORES MADE TO THE ALP DOES NOT QUALIFY FOR DEDUCTION U/S 10B. THUS, THE INCLUSION OF THIS INCOME WHILE COMPUTING DEDUCTION U/S 10B WAS I RREGULAR AB- INITIO . THAT AFTER EXCLUSION OF THIS DEEMED INCOME; THE DEDUCTION ADMISSIBLE U/S 10B WAS WORKED OUT TO RS.46.66 CRORE S. ACCORDINGLY ASSESSEE GOT EXCESS DEDUCTION U/S 10B OF RS.46.66 C RORES ( RS. 90.21 CRORES -43.55 CRORES). RESULTANTLY UNDER ASSESSMEN T OF INCOME AND THE ORDER PASSED BY AO WAS ERRONEOUS AND PREJUDICIA L TO THE INTEREST OF REVENUE. ON THE BASIS OF AFORESAID OBSERVATION, THE LD. CIT (LTU) ISSUED SHOW CAUSE NOTICE TO THE ASSESSEE U/S 263 VI DE NOTICE DATED 01- 02-2018. 4. THE ASSESSEE FILED ITS REPLY DATED 22-02-2018. IN THE REPLY THE ASSESSEE, BESIDES OTHER CONTENTIONS STATED THAT IN THE DRAFT ASSESSMENT ORDER DATED 30-05-2014, CERTAIN ADDITION / DISALLOW ANCE WAS PROPOSED WHICH CONSISTED OF CERTAIN TRANSFER PRICING ADJUSTM ENT TO THE TOTAL INCOME. THE AO IN THE DRAFT ASSESSMENT ORDER HELD THAT TAX HOLIDAY BENEFIT U/S 10B SHOULD BE RESTRICTED TO THE ASSESSE E S GROSS BUSINESS INCOME. THE AO COMPUTED TAX HOLIDAY BENEFIT U/S 10 B OF RS.69.46 CRORES (EXCLUDING TP ADJUSTMENT) INSTEAD OF RS.90.2 1 CRORES AS CLAIMED BY THE ASSESSEE IN ITS RETURN OF INCOME. A GAINST THE PROPOSED 4 ITA NO.4911/MUM/2018 SHELL INDIA MARKETS PVT LTD ADDITION, THE ASSESSEE FILED OBJECTION BEFORE DRP, WHICH WAS DISPOSED OF VIDE DIRECTION DATED 09-06-2015. IN THE SAID DI RECTION, APART FROM OTHER DIRECTIONS, THE DRP DIRECTED TO ALLOW DEDUCTI ON U/S 10B AS CLAIMED BY ASSESSEE IN ITS RETURN OF INCOME. ACCOR DINGLY, FINAL ASSESSMENT ORDER DATED 27-07-2015 WAS PASSED U/S 14 3(3) R.W.S. 144C (13) WHEREIN INCOME ASSESSED WAS RS.159.85 CRORES A FTER ALLOWING DEDUCTION OF RS. 69.46 CRORE IN PLACE OF RS. 90.21 CRORES U/S 10B, AS CLAIMED IN THE RETURN OF INCOME. SINCE THE ASSESSE E HAS NOT ACCEPTED THE ADDITIONS / DISALLOWANCES AND FILED APPEAL BEFO RE TRIBUNAL. THE REVENUE HAS ALSO FILED ITS CROSS APPEAL ON WHICH CE RTAIN RELIEF WAS GRANTED BY DRP AND THAT APPEALS ARE PENDING BEFORE TRIBUNAL. THE ASSESSEE FURTHER STATED THAT THE RE-ASSESSMENT PROC EEDINGS WERE INITIATED BY AO ON ISSUES OTHER THAN TAX HOLIDAY BE NEFIT CLAIMED BY ASSESSEE. IT WAS FURTHER STATED THAT DURING THE CO URSE OF RE-ASSESSMENT PROCEEDINGS, THE AO VIDE ORDER SHEET NOTING DATED 0 7-12-2017 AS WELL AS SHOW CAUSE NOTICE DATED 08-12-2017 ASKED THE ASS ESSEE AS TO WHY TAX HOLIDAY BENEFIT CLAIMED ON SUO MOTO TRANSFER PRICING ADJUSTMENT SHOULD NOT BE DENIED TO THE ASSESSEE. THE SAID SHO W CAUSE NOTICE WAS REPLIED BY ASSESSEE VIDE REPLY DATED 18-12-2017. TH E ASSESSEE EXPLAINED IN ITS REPLY THAT IN THE DRAFT ASSESSMENT ORDER HELD THAT THE TAX HOLIDAY BENEFIT UNDER SECTION 10B SHOULD BE RES TRICTED TO THE GROSS 5 ITA NO.4911/MUM/2018 SHELL INDIA MARKETS PVT LTD TOTAL BUSINESS OF THE ASSESSEE. ACCORDINGLY THE AO COMPUTED TAX HOLIDAY BENEFIT UNDER SECTION 10B. THE ASSESSEE ALS O FILED COPY OF THE REPLY DATED 18.12.2017 AND OTHER RELATED DOCUMENTS. IN THE RE- ASSESSMENT ORDER DATED 29-12-2017, THE CONTENTION O F ASSESSEE WITH REGARD TO THE TAX HOLIDAY BENEFIT WAS ACCEPTED BY A O. THE ASSESSEE ALSO STATED THAT THE ORDER PASSED BY AO IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF REVENUE. THE ORDER IS PASSED IN ACCORDANCE WITH THE PROVISIONS OF LAW. THE ASSESSM ENT ORDER WAS PASSED AFTER MAKING NECESSARY ENQUIRIES AND VERIFIC ATION OF FACTS. IT WAS SPECIFICALLY SUBMITTED THAT WHEREVER TWO OPINIO NS ARE POSSIBLE AND THE AO HAS TAKEN A POSSIBLE VIEW, THE SAME CANN OT BE CONTROVERTED U/S 263. THE ASSESSEE PRAYED THAT REV ISION PROCEEDINGS INITIATED U/S 263 IS NOT VALID AND SHOULD BE DROPPE D. 5. THE CONTENTION OF ASSESSEE WAS NOT ACCEPTED BY LD. CIT (LTU). HE TOOK THE VIEW THAT THE CONTENTION OF ASSESSEE THAT THE DRP HAS CONSIDERED THE ISSUE IS INCORRECT. THE APPLICABILI TY OF PROVISO TO SUB SECTION (4) OF SECTION 92C WAS NOT CONSIDERED BY DR P WHILE DECIDING THE OBJECTION RAISED BY THE ASSESSEE. THE AO WHILE FOLLOWING THE DIRECTION OF DRP WAS REQUIRED TO TAKE COGNIZANCE OF STATUTORY PROVISIONS OF SECTION 92(4) ALONG WITH ITS PROVISO AND NOT DOING SO, THE ORDER PASSED BY AO IS CLEARLY ERRONEOUS AND PREJUDI CIAL TO THE INTEREST 6 ITA NO.4911/MUM/2018 SHELL INDIA MARKETS PVT LTD OF REVENUE. THE LD. CIT (LTU) FURTHER TOOK HER VI EW THAT AS PER PROVISO TO SECTION 92C(4), NO DEDUCTION U/S 10A (OR 10AA OR 10B OR UNDER CHAPTER VIA) SHALL BE ALLOWED IN RESPECT OF A MOUNT OF INCOME BY WHICH TOTAL INCOME OF ASSESSEE IS ENHANCED AFTER COMPUTATION OF INCOME UNDER THIS SUB SECTION. THE LD. CIT(LTU) RE FERRED THE DECISION OF TRIBUNAL IN AGILIGYS I.T. SERVICES INDI A (P) LTD ( 2015) 58 TAXMANN.COM 284 (MUMBAI-TRIB.) AND DELOITTE CONSULT ING INDIA PVT LTD.( ITA 157/MUM/2012). ON THE BASIS OF AFORESAID OBSERVATION, THE LD.CIT (LTU) DIRECTED THE AO TO WITHDRAW THE DEDUCT ION U/S 10B. 6. AGGRIEVED BY THE ORDER OF CIT(LTU), THE ASSESSEE HA S FILED THE PRESENT APPEAL BEFORE THIS TRIBUNAL, BY RAISING THE FOLLOWING GROUNDS OF APPEAL:- APPEAL UNDER SECTION 253(1) OF THE INCOME-TAX ACT, 1961 ('ACT') AGAINST THE ORDER DATED 25 JUNE 2018 (RECEIVED BY THE APPEL LANT ON 2 JULY 2018) PASSED UNDER SECTION 263 BY THE COMMISSIONER OF INC OME-TAX, LARGE TAXPAYER UNIT, MUMBAI ('CIT'). ALL GROUNDS OF APPEAL ARE INDEPENDENT AND WITHOUT PREJUDICE TO THE OTHER GROUNDS GROUNDS OF APPEAL 1. RE: VALIDITY OF ORDER UNDER SECTION 263 1.1 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT HAS ERRED IN ASSUMING JURISDICTION UNDE R SECTION 263 OF THE ACT. 1.2 THE LEARNED CIT HAS FAILED TO APPRECIATE T HAT THE ASSESSMENT ORDER UNDER SECTION 143(3) R.W.S. 147 PASSED BY THE ASSES SING OFFICER ('AO') WAS NEITHER ERRONEOUS NOR 3. RE: DIRECTION TO DELETE DEDUCTION OF RS. 7 ITA NO.4911/MUM/2018 SHELL INDIA MARKETS PVT LTD 46,66,16,931 UNDER SECTION 10B OF THE ACT ON SUO-MOTO TRANSFER PRICING ADJUSTMENTS MADE BY APPELLANT 3.1 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT ERRED IN HOLDING THAT DEDUCTION UNDER SECTION 1 OB OF THE ACT IS NOT ALLOWABLE ON SUO-MOTO TRANSFER PRICING ADJUSTMENTS. 3.2 ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE LEARNED CIT HAS ERRED IN DECIDING THE ISSUE ON THE MERITS AGAINST THE APPELLANT WITHOUT DEALING WITH THE DECISION OF CIT V. I-GATE GLOBAL SOLUTIONS LTD. (ITA NO. 453/2008) DATED 17 JUNE 201 4 DECIDED BY THE HON 'BLE KARNATAKA HIGH COURT. 3.3 THE LEARNED CIT HAS FAILED TO APPRECIATE THAT THE D ECISION OF I-GATE (SUPRA) HAS NOT BEEN LITIGATED FURTHER BY THE INCOM E-TAX DEPARTMENT. 4. INITIATION OF PENALTY PROCEEDINGS UNDER S ECTION 271(L)(C) OF THE ACT 4.1 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT HAS ERRED IN DIRECTING THE AO TO INITIA TE PENALTY PROCEEDINGS UNDER SECTION 271(L)(C) FOR FURNISHING INACCURATE P ARTICULARS OF INCOME. 4.2 THE LEARNED CIT HAS FURTHER FAILED TO APPR ECIATE THE FACT THAT THE APPELLANT HAS NOT FURNISHED INACCURATE PARTICULARS OF INCOME IN ITS RETURN OF INCOME PREJUDICIAL TO THE INTEREST OF THE REVENU E. THE LEARNED CIT FAILED TO APPRECIATE THAT THE ISSUE INVOLVED IS DEBATABLE AND HAS BEEN EXAMINED BY THE AO. 1.3 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT HAS ERRED IN EXERCISING JURISDICTION UN DER SECTION 263 OF THE ACT, WITHOUT GIVING ANY FINDING THAT THE ASSESSMENT ORDER SOUGHT TO BE REVISED BY THE LEARNED CIT IS ERRONEOUS AND PREJUDI CIAL TO THE INTEREST OF THE REVENUE. 1.4 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT ERRED IN EXERCISING JURISDICTION UNDER SECTION 263 OF THE ACT, ON AN ISSUE WHICH WAS NOT THE BASIS OF REOPENING, W HILE REVISING AN ORDER PASSED UNDER SECTION 143(3) R.W.S. 147 OF THE ACT. 2. RE: VIOLATION OF NATURAL JUSTICE 8 ITA NO.4911/MUM/2018 SHELL INDIA MARKETS PVT LTD 2.1 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT HAS ERRED IN NOT PASSING AN ORDER DISPO SING THE OBJECTIONS FILED BY THE APPELLANT AGAINST THE PROCEEDINGS UNDER SECT ION 263 THEREBY NOT GRANTING AN OPPORTUNITY OF MAKING SUBMISSIONS ON TH E MERITS OF THE CASE. 7. WE HAVE HEARD THE SUBMISSION OF LEARNED AUTHORISED REPRESENTATIVE (LD.AR) OF THE ASSESSEE AND LEARNED DEPARTMENTAL RE PRESENTATIVE (LD. DR) FOR REVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD. AR OF THE ASSESSEE SUBMITS THAT THE RE-ASSESSME NT ORDER DATED 29- 12-2017 PASSED BY AO IS NOT ERRONEOUS. THE ISSUE R AISED BY LD. CIT (LTU) IN HER SHOW CAUSE NOTICE U/S 263 WITH REGARD TO ALLOWANCE / DISALLOWANCE OF DEDUCTION U/S 10B IS A DEBATABLE IS SUE. THE ISSUE RELATED WITH THE DEDUCTION UNDER SECTION 10B WAS EX AMINED BY ASSESSING OFFICER WHILE PASSING THE DRAFT ASSESSMEN T ORDER AND CERTAIN DISALLOWANCE, WHICH WAS OBJECTED THE ASSESSEE BY FI LING OBJECTIONS BEFORE DRP. AGAIN THIS ISSUE WAS EXAMINED BY AO IN RE-ASSESSMENT ORDER AND AFTER CONSIDERING AND EXAMINING THE FACT NO ADDITIONS WAS MADE. THE LD AR FOR THE ASSESSEE SUBMITS THAT THE PROVISO WITH SECTION 92C(4) IS NOT ATTRACTED, WHEN THE ASSESSEE SUO MOTO TRANSFER PRICING ADJUSTMENT, THE PROVISO WILL BE APPLY ONLY IN CASES WHERE ADJUSTMENT HAS BEEN MADE BY THE AO/TPO. THE HON BLE KARNATAKA HIGH COURT IN THE CASE OF M/S. I. GATE GLOBAL SOLUT IONS LTD IN ITA NO.452/2008 DATED 17-06-2014 WHILE CONSIDERING THE QUESTION OF LAW 9 ITA NO.4911/MUM/2018 SHELL INDIA MARKETS PVT LTD WHETHER TRIBUNAL WAS CORRECT IN HOLDING THAT DEDUCT ION U/S 10A IS ALLOWABLE IN RESPECT OF INCOME COMPUTED AT ARM S LENGTH PRICE BY IGNORING THE PROVISO TO SECTION 92C(4) OF THE ACT. THE HON BLE HIGH COURT HELD THAT THE SAID PROVISION APPLIED TO THE C ASE WHERE ARM S LENGTH PRICE WAS DETERMINED BY AO, THAT MISTAKE HAS BEEN CORRECTED BY THE TRIBUNAL BY SETTING ASIDE THE ORDER PASSED B Y THE COMMISSIONER AS WELL AS AO. 8. THE LD.AR FURTHER SUBMITS THAT BESIDES THE DECISIO N OF HON BLE KARNATAKA HIGH COURT IN I.GATE GLOBAL SOLUTIONS LTD (SUPRA), THERE ARE SEVERAL DECISIONS OF TRIBUNAL IN FAVOUR OF ASSE SSEE WHEREIN SIMILAR RELIEF WAS GRANTED BY TRIBUNAL BY TAKING VIEW THAT PROVISIONS OF SECTION 92C(4) WILL NOT BE APPLICABLE WHEREIN THE P RICING ADJUSTMENT HAS BEEN MADE VOLUNTARILY BY ASSESSEE AND INCOME HA S BEEN OFFERED TO TAX WHICH FORMS PART OF PROFIT OF THE BUSINESS AND DEDUCTION U/S 10B / 10A CANNOT BE DENIED. IN SUPPORT OF HIS SUBMISSIONS THE LD AR FOR THE ASSESSEE RELIED ON THE FOLLOWING DECISIONS:- A.T. KEARNEY INDIA PVT LTD VS ACIT(ITA NO.2623/DEL/ 2015), M/S AUSTIN MEDICAL SOLUTIONS PVT LTD VS ITO, I.T.(T .P.) A.NO.542/BANG/2012, SUMTOTAL SYSTEM INDIA (P) LTD VS DCIT [2017] 88 TAX MANN.COM 897 (HYD TRIB), APPROVA SYSTEMS PVT LTD VS DCIT (ITA NO.1051/PUN/20 15) AND 10 ITA NO.4911/MUM/2018 SHELL INDIA MARKETS PVT LTD KARNATAKA HIGH COURT IN CIT VS I GATE GLOBAL SOLUTI ON LTD (ITA NO. 452/2008 DATED 17 TH JUNE 2014) 9. THE LD. AR FURTHER SUBMITS THAT THE DECISION OF TRI BUNAL IN DELOITTE CONSULTING INDIA PVT. LTD VS ITO IN ITA NO.157/MUM/ 2012 AND AGILIGYS I.T. SERVICES INDIA LTD, THE TRIBUNAL HAS NOT CONSIDERED THE DECISION OF KARNATAKA HIGH COURT IN I. GATE GLOBAL SOLUTIONS LTD (SUPRA) WHEREIN IT WAS HELD THAT ASSESSEE IS ENTITL ED TO CLAIM THE DEDUCTION U/S 10A ON ADDITIONAL INCOME OFFERED ON A CCOUNT OF SUO MOTO ADJUSTMENT ON ACCOUNT OF TRANSFER PRICING PROV ISIONS AND ACCORDINGLY THE PROVISO TO SECTION 92C(4) IS NOT AT TRACTED. 10. THE LD.AR FURTHER SUBMITS THAT DURING THE RE-ASSESS MENT PROCEEDINGS, THE AO VIDE NOTICE DATED 09-12-2017 RAISED QUERIES WITH REGARD TO THE PROVISIONS OF SECTION 10B BY REFERRING THE PROVISO TO SECTION 94C(4). 11. THE LD.AR OF THE ASSESSEE INVITED OUR ATTENTION TO QUESTION NO.1 AS MENTIONED IN NOTICE DATED 08-12-2017, COPY OF WHICH IS PLACED ON RECORD AS PAGE 262 OF THE PAPER BOOK WHEREIN THE AO RAISED THE FOLLOWING QUARRY:- (I) AS PER PROVISIONS OF SECTION 10B OF THE ACT, THE PR OFIT & GAINS DERIVED BY NEWLY ESTABLISHED 100% EXPORT ORIENTED UNDERTAKING FROM EXPORT OF ARTICLE OR THING OR COMPUTER SOFTWAR E IS ELIGIBLE FOR DEDUCTION AT PRESCRIBED RATE SUBJECT TO CERTAIN CON DITIONS SPECIFIED THEREIN. FURTHER PROVISO TO SECTION 92C( 4) PROVIDES THAT DEDUCTION UNDER SECTION 10A / 10B / 10AA IS NOT ADM ISSIBLE ON INCOME ENHANCED DUE TO TRANSFER PRICING ADDITION. FURTHER, THE 11 ITA NO.4911/MUM/2018 SHELL INDIA MARKETS PVT LTD ITAT K BENCH MUMBAI VIDE ORDER DATED 15-07-2015 IN THE CASE OF DELOITTE CONSULTING INDIA PVT LTD VS ITO -2 (2)(3) MUMBAI [ITA NO.157/MUM/2012] HAS HELD THAT THE SUO MOTU EN HANCEMENT OR ADJUSTMENT MADE TO ARM S LENGTH PRICE MADE BY THE ASSESSEE IS NOT ELIGIBLE FOR 10A DEDUCTION. 12. THE LD.AR FURTHER SUBMITS THAT THE ASSESSEE FILED D ETAILED REPLY TO THE SHOW CAUSE NOTICE DATED 08-12-2017 VIDE ITS REPLY D ATED 18-12-2017 AND EXPLAINED THAT IN THE DRAFT ASSESSMENT ORDER, T HE AO HELD THAT TAX HOLIDAY BENEFIT U/S 10B SHOULD BE RESTRICTED TO THE GROSS TOTAL BUSINESS INCOME AND IT WAS EXPLAINED THAT THE AO COMPUTED TA X HOLIDAY BENEFIT U/S 10B OF RS.69.46 CRORES INSTEAD OF RS.90.21 CROR ES AS CLAIMED BY ASSESSEE IN ITS RETURN OF INCOME. AGAINST THIS PRO POSED ADDITION THE ASSESSEE FILED OBJECTION BEFORE THE DRP. THE OBJEC TION WAS DISPOSED OF VIDE DIRECTION DATED 09-06-2015 WHEREIN THE DRP DIRECTED THE AO TO ADMIT THE CLAIM OF DEDUCTION U/S 10B. THE LD.AR FURTHER SUBMITS THAT AFTER CONSIDERING THE EXPLANATION FURNISHED BY ASSESSEE, THE CONTENTION OF ASSESSEE WAS ACCEPTED BY AO IN RE-ASS ESSMENT ORDER AS NO ADJUSTMENT WAS MADE BY AO IN ASSESSMENT ORDER DA TED 29-12-2017 PASSED U/S 143(3) R.W.S. 147. THE LD.AR SUBMITS TH AT THE AO, AFTER CONSIDERING THE EXPLANATION FURNISHED BY THE ASSESS EE HAS PASSED THE ASSESSMENT ORDER AFTER HIS FULL SATISFACTION THOUGH THERE IS NO REFERENCE ABOUT THE EXAMINATION OF ISSUE IN THE ASSESSMENT OR DER. THE LD.AR 12 ITA NO.4911/MUM/2018 SHELL INDIA MARKETS PVT LTD SUBMITS THAT ONCE THE AO RAISED QUERY, QUERIES RAIS ED BY AO WAS DULY REPLIED AND AO PASSED THE ASSESSMENT ORDER, THE ASS ESSMENT ORDER CANNOT BE BRANDED AS ERRONEOUS OR NOT IN ACCORDANCE WITH LAW WHEN IT WAS PASSED AFTER DUE ENQUIRY AND FULL SATISFACTION BY AO. 13. IN SUPPORT OF HIS SUBMISSION, THE LD.AR OF THE ASSE SSEE ALSO RELIED UPON THE DECISION OF HON BLE APEX COURT IN CASE OF MALABAR INDUSTRIAL CO. LTD REPORTED VIDE 243 ITR 83(SC); DE CISION OF BOMBAY HIGH COURT IN CIT VS GABRIEL INDIA LTD REPORTED VID E 203 ITR 108 (BOM), DECISION OF KARNATAKA HIGH COURT IN CIT VS M /S I.GATE GLOBAL SOLUTIONS (P) LTD (SUPRA). 14. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE SUPPO RTED THE ORDER OF LD. CIT (LTU). THE LD. DR FURTHER SUBMITS THAT THE RATIO OF DECISION IN DELOITTE CONSULTING INDIA PVT. LTD (SUPRA) IS FU LLY APPLICABLE IN THE FACTS OF THE PRESENT CASE. THE AO WHILE PASSING TH E ASSESSMENT ORDER DATED 29-12-2017 HAS NOT CONSIDERED THE PROVISO TO SECTION 92C(4) AND THE ORDER PASSED BY AO IS ERRONEOUS AS THE SAME IS PASSED WITHOUT MAKING NECESSARY ENQUIRIES. THE ORDER IS PREJUDICI AL TO THE INTEREST OF REVENUE. BY ALLOWING DEDUCTION U/S 10B BY THE AO, THE DEPARTMENT HAS SUFFERED LOSS OF REVENUE AND ACCORDINGLY THE AS SESSMENT ORDER IS NOT ONLY ERRONEOUS BUT ALSO PREJUDICIAL TO THE INTE REST OF REVENUE. 13 ITA NO.4911/MUM/2018 SHELL INDIA MARKETS PVT LTD 15. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF THE PAR TIES AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. THE HON'BLE SUPREME COURT IN THE CASE OF MALABAR INDUSTRIAL CO. LTD. (SUPRA) AND HONBLE JURISDICTIONAL HIGH COURT IN CASE OF GABRIEL INDIA LTD. (SUPRA) AND HAS LAID DOWN THE FOLLOWING BROADER PRINCIPLE TO EXAMIN E THE ACTION OF CIT TAKEN UNDER SECTION 263: THE CIT MUST RE CORD SATISFACTION THAT THE ORDER OF THE ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTERES T OF THE REVENUE. THE TWIN CONDITIONS MUST BE FULFILLED. SECTION 263 CANNOT BE INVOKED TO CORRECT EACH AND EVERY TYPE OF MISTAKE OR ERROR COMMITTED BY THE ASSESSING OFFICER AND IT WAS ONLY WHEN AN ORDER IS ERRONEOUS THAT THE SECTION WI LL BE ATTRACTED. AN INCORRECT ASSUMPTION OF FACTS OR AN INCORRECT AP PLICATION OF LAW WILL SUFFICE THE REQUIREMENT OF ORDER BEING ERRONEO US. IF THE ORDER IS PASSED WITHOUT APPLICATION OF MIND, SUCH ORDER WILL FALL UNDER THE CATEGORY OF ERRONEOUS ORDER. EVERY LOSS OF REVENUE CANNOT BE TREATED AS PREJUDIC IAL TO THE INTERESTS OF THE REVENUE AND IF THE ASSESSING OFFIC ER HAS ADOPTED ONE OF THE COURSES PERMISSIBLE UNDER LAW OR WHERE TWO VIEWS ARE POSSIBLE AND THE ASSESSING OFFICER HAS TAKEN ONE VI EW WITH WHICH THE CIT DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER, UNLESS THE VIEW TAKEN BY THE ASSESSING OFFICER IS U NSUSTAINABLE UNDER LAW. IF WHIL E MAKING THE ASSESSMENT, THE ASSESSING OFFICER EXAM INES THE ACCOUNTS, MAKES ENQUIRIES, APPLIES HIS MIND TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND DETERMINE THE INCOME, THE CIT, WHILE EXERCISING HIS POWER UNDER SECTION 263 IS NOT PERMI TTED TO SUBSTITUT E HIS ESTIMATE OF INCOME IN PLACE OF THE INCOME ESTIM ATED BY THE ASSESSING OFFICER. 14 ITA NO.4911/MUM/2018 SHELL INDIA MARKETS PVT LTD THE ASSESSING OFFICER EXERCISES QUASI- JUDICIAL POWER VESTED IN HIS AND IF HE EXERCISES SUCH POWER IN ACCORDANCE WITH L AW AND ARRIVES AT A CONCLUSION, SUCH CONCLUSION CANNOT BE TERMED TO BE ERRONEOUS SIMPLY BECAUSE THE CIT DOES NOT FEEL SATISFIED WITH THE CONCLUSION. THE CIT, BEFORE EXERCISING HIS JURISDICTION UNDER S ECTION 263 MUST HAVE MATERIAL ON RECORD TO ARRIVE AT A SATISFACTION . IF THE ASSESSING OFFICER HAS MADE ENQUIRIES DURING THE COU RSE OF ASSESSMENT PROCEEDINGS ON THE RELEVANT ISSUES AND T HE ASSESSEE HAS GIVEN DETAILED EXPLANATION BY A LETTER IN WRITING A ND THE ASSESSING OFFICER ALLOWS THE CLAIM ON BEING SATISFIED WITH TH E EXPLANATIO N OF THE ASSESSEE, THE DECISION OF THE ASSESSING OFFICER CANNOT BE HELD TO BE ERRONEOUS SIMPLY BECAUSE IN HIS ORDER HE DOES NO T MAKE AN ELABORATE DISCUSSION IN THAT REGARD.' 16. IN THE LIGHT OF AFORESAID PRINCIPALS, NOW WE SHALL EXAMINE THE FACTS OF THE PRESENT CASE. DURING THE COURSE OF HEARING THE LD AR FOR THE ASSESSEE VEHEMENTLY SUBMITTED THE ASSESSEE MADE SUO MOTO DIS ALLOWANCE OF THE DEDUCTION UNDER SECTION 10B, THE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT ORDER AO COMPUTED TAX HOLIDAY BENEFIT U/S 10B OF RS.69.46 CRORES INSTEAD OF RS.90.21 CRORES AS CLAIM ED BY ASSESSEE IN ITS RETURN OF INCOME, AGAINST THIS PROPOSED ADDITIO N THE ASSESSEE FILED OBJECTION BEFORE THE DRP. THE OBJECTION WAS DISPOS ED OF VIDE DIRECTION DATED 09-06-2015 WHEREIN THE DRP DIRECTED THE AO TO ADMIT THE CLAIM OF DEDUCTION U/S 10B. FURTHER, THE LD AR FOR THE ASSESSEE TO SHOW US THE QUESTIONNAIRE RAISED BY THE ASSESSING O FFICER DURING THE REASSESSMENT PROCEEDINGS, ON THE ISSUES TAKEN UP BY THE LEARNED 15 ITA NO.4911/MUM/2018 SHELL INDIA MARKETS PVT LTD COMMISSIONER IN SECTION 263 PROCEEDINGS. WE HAVE SE EN THE REPLY FURNISHED BY THE ASSESSEE FILED IN RESPONSE TO THE QUESTIONS RAISED BY THE ASSESSING OFFICER DURING THE RE-ASSESSMENT COPY OF WHICH IS AVAILABLE AT PAGE NO. 264 TO 283 OF PB. IN OUR VIEW THE AO MUST HAVE GONE THROUGH THE RECORDS RELEVANT TO ALL THE ISSUE AS NO ADDITIO N WAS MADE ON THIS ISSUE. WE ARE ALSO OF THE VIEW THAT WHEN THE ASSE SSING OFFICER EXAMINES THE RAISED ISSUE AND MADE INQUIRY APPLIES HIS MIND THEN LEARNED COMMISSIONER WOULD NOT BE JUSTIFIED TO SUBS TITUTE HIS ESTIMATE OF INCOME IN PLACE THE INCOME ESTIMATED BY THE AO. THE APPLICATION OF MIND AT THE END OF THE AO CAN BE ASCERTAINED EITHER FROM THE DISCUSSION AVAILABLE IN THE ASSESSMENT ORDER OR FROM THE QUEST IONNAIRE ISSUED BY HIM ON THE SPECIFIC ISSUES AND REPLIES SUBMITTED BY THE ASSESSEE. THE EXPLANATION SUBMITTED BY THE ASSESSEE SHOULD BE PLA USIBLE ONE AND IN CONSONANCE WITH THE QUERY OF THE ASSESSING OFFICER. IN THE REPLY THE ASSESSEE HAS CLEARLY EXPLAINED THAT WHILE PASSING T HE DRAFT ASSESSMENT THE AO COMPUTED TAX HOLIDAY BENEFIT U/S 10B OF RS.69.46 CR ORES INSTEAD OF RS.90.21 CRORES AS CLAIMED BY ASSESSEE IN ITS RE TURN OF INCOME, AGAINST THE SUO MOTO DISALLOWANCE OF THE ASSESSEE O N ACCOUNT OF DEDUCTION UNDER SECTION 10B. 17. THERE IS NO DISPUTE THAT INITIALLY ASSESSMENT WAS C OMPLETED U/S 143(3) R.W.S. 144C13) ON 27-07-2015 MAKING VARIOUS ADDITIO NS / ADJUSTMENTS 16 ITA NO.4911/MUM/2018 SHELL INDIA MARKETS PVT LTD WITH REGARD TO THE ALP OF INTERNATIONAL TRANSACTION S REPORTED BY ASSESSEE. SUBSEQUENTLY, THE ASSESSMENT WAS REOPENE D U/S 147. NOTICE U/S 148 WAS ISSUED ON 30-03-2016. THE ASSESSMENT W AS REOPENED ON THE BASIS OF INFORMATION RECEIVED FROM DGIT(INV), C ALCUTTA THAT THE ASSESSEE HAS AVAILED ACCOMMODATION ENTRIES FROM TAR A TRADING COMPANY AND M/S ANNAPURNA COMPANY. IT WAS INFORMED TO THE AO THAT INVESTIGATION WING OF CALCUTTA CONDUCTED ENQUI RIES AND RECORDED THE STATEMENT OF PROPRIETOR OF TARA TRADING COMPANY & ANNAPURNA COMPANY ABOUT THE ACCOMMODATION ENTRIES PROVIDED BY THEM. IN THE RE-ASSESSMENT ORDER PASSED U/S 144 R.W.S.147, THE A O MADE ADDITION U/S 68 OF RS.24,19,212/-. 18. AT THE COST OF REPETITION, WE MAY NOTE THAT THE LD .AR OF THE ASSESSEE VEHEMENTLY ARGUED THAT DURING RE-ASSESSMENT, THE AO MADE NECESSARY ENQUIRIES WITH REGARD TO THE APPLICABILITY OF PROVI SO TO SECTION 92C(4) IN RESPECT OF DEDUCTION U/S 10A / 10B / 10AA. WE H AVE NOTED THAT THE AO VIDE QUESTION NO.1 IN ANNEXURE TO NOTICE DATED 0 8-12-2017 RAISED THE SIMILAR QUESTION AS RAISED BY LD.CIT(LTU) IN HE R SHOW CAUSE NOTICE U/S 263. THE ASSESSEE FILED ITS REPLY VIDE REPLY DATED 08-12- 2017, COPY OF WHICH IS FILED AT PAGES 264 TO 270 OF THE PAPER BOOK. IN THE REPLY, THE ASSESSEE STATED THAT IN THE DRAFT AS SESSMENT ORDER, CERTAIN ADDITIONS / DISALLOWANCES WERE PROPOSED, INCLUDING TRANSFER PRICING 17 ITA NO.4911/MUM/2018 SHELL INDIA MARKETS PVT LTD ADJUSTMENT TO THE TOTAL INCOME OF THE ASSESSEE. IN THE DRAFT ASSESSMENT ORDER IT WAS HELD THAT TAX HOLIDAY BENEFIT U/S 10B SHOULD BE RESTRICTED TO THE GROSS TOTAL BUSINESS INCOME. IT WAS ALSO EX PLAINED THAT AO COMPUTED TAX HOLIDAY BENEFIT U/S 10B OF RS.69.46 CR ORES INSTEAD OF RS.90.21 CRORES AS CLAIMED BY THE ASSESSEE, IN ITS RETURN OF INCOME WHICH WAS AGAIN SUBJECT TO THE OBJECTION FILED BEFO RE THE DISPUTE RESOLUTION PANEL (DRP) AND THE DRP DIRECTED THE AO TO DELETE THE RESTRICTED DENIAL OF DEDUCTION U/S 10B. WE HAVE NO TED THAT THERE IS NO REFERENCE REGARDING THE QUERIES RAISED BY AO AND TH E EXPLANATION FURNISHED BY ASSESSEE, IN THE RE-ASSESSMENT ORDER D ATED 29-12-2017. WE HAVE FURTHER NOTED THAT IN THE REPLY TO SHOW CAU SE NOTICE VIDE REPLY DATED 22-02-2018 ISSUED BY LD.CIT(LTU), THE ASSESSE E HAS BROUGHT ALL THESE FACTS. COPY OF REPLY OF ASSESSEE DATED 2 2-02-2018 IN RESPONSE TO THE SHOW CASE NOTICE U/S 263 IS PLACED ON RECORD AT PAGES 284 TO 291 OF THE PAPER BOOK. 19. WE HAVE NOTED THAT THE LD.CIT(LTU) HAS NOT DISCUSS ED THE CONTENTS OF REPLY / EXPLANATION FURNISHED BY THE ASSESSEE TO TH E SHOW CAUSE NOTICE U/S 263. THE LD.CIT (LTU) SIMPLY CONCLUDED THAT TH E CONTENTION OF ASSESSEE THAT DRP HAS CONSIDERED THE ISSUE IS INCOR RECT. THE DRP HAS NOT CONSIDERED THE PROVISO TO SUB SECTION (4) OF SE CTION 92C. THE AO 18 ITA NO.4911/MUM/2018 SHELL INDIA MARKETS PVT LTD WHILE FOLLOWING THE DIRECTION OF DRP HAVE NOT TAKEN COGNIZANCE OF STATUTORY PROVISION OF SECTION 92CA(4). 20. IT IS PERTINENT TO NOTE HERE THAT THE LD.CIT(LTU) I SSUED SHOW CAUSE NOTICE FOR REVISION OF ASSESSMENT ORDER DATED 29-12 -2017 PASSED U/S 143(3) R.W.S. 147. HOWEVER, AT PARA 6 OF THE IMPUG NED ORDER, THE LD.CIT(LTU) DISCUSSED THE CONTENTS OF DRAFT ASSESSM ENT ORDER PASSED IN PURSUANCE OF DIRECTION OF DRP THOUGH IT WAS NOT THE SUBJECT MATTER OF SHOW CAUSE NOTICE. BEFORE US, THE LD.AR OF THE ASSESSEE VEHEMENTLY SUBMITTED THAT HON BLE KARNATAKA HIGH COURT IN THE CASE OF I GATE GLOBAL SOLUTIONS LTD (SUPRA) WHILE C ONSIDERING THE QUESTION OF LAW WHETHER THE TRIBUNAL WAS CORRECT IN HOLDING THAT DEDUCTION U/S 10A IS ALLOWABLE IN RESPECT OF INCOME COMPUTED ON ALP BY IGNORING PROVISO TO SECTION 92C(4) HELD THAT THE PROVISO APPLIED TO THE CASES WHERE ALP WAS DETERMINED BY ASSESSING AUT HORITY. FURTHER, THE DELHI TRIBUNAL IN A.T. KEARNEY INDIA PVT LTD (S UPRA) WHILE CONSIDERING SIMILAR GROUND OF APPEAL HELD THAT THE PROVISO TO SECTION 92C(4) OF THE ACT WOULD NOT BE ATTRACTED ON VOLUNTA RY TRANSFER PRICING ADJUSTMENT MADE BY THE ASSESSEE AND PROVISO WAS TO APPLY ONLY IN CASES WHERE ADJUSTMENT HAS BEEN MADE BY AO / TPO. IT WAS FURTHER HELD THAT ONCE THE ASSESSEE HAS VOLUNTARILY OFFERED THE INCOME TO TAX, IT FORMS PART OF THE PROFIT OF THE BUSINESS AND DEDUCT ION U/S 10A CANNOT 19 ITA NO.4911/MUM/2018 SHELL INDIA MARKETS PVT LTD BE DENIED. FURTHER, THE BANGALORE TRIBUNAL IN M/S AUSTIN MEDICAL SOLUTIONS PVT LTD (SUPRA) WHILE RELYING UPON THE DE CISION OF I GATE GLOBAL SOLUTIONS LTD (SUPRA) WHILE REFERRING THE DE CISION OF TRIBUNAL AND HON BLE KARNATAKA HIGH COURT HELD THAT ONCE THE ASSESSE E SUO MOTO ALLOWED THE DEDUCTION U/S 10A IN THE RETURN OF INCOME WHILE DETERMINING THE ALP, THE REVENUE CANNOT DENY THE DE DUCTION U/S 10A. SIMILAR VIEW WAS TAKEN BY HYDERABAD TRIBUNAL IN SUM TOTAL SYSTEMS INDIA (P) LTD VS DCIT (2017) 88 TAXMANN.COM 897 (HY DERABAD-TRIB.) WHILE RELYING UPON THE DECISION OF KARNATAKA HIGH C OURT IN I GATE GLOBAL SOLUTIONS LTD (SUPRA). 21. THE LD.CIT (LTU) REVISED THE ASSESSMENT ORDER BY RE FERRING THE DECISION OF DELOITTE CONSULTING INDIA PVT LTD (SUPR A) AND AGILISYS IT SERVICES INDIA (P) LTD VS ITO (SUPRA), IN OUR VIEW THE SAID DECISION WILL NOT STAND BECAUSE OF THE DECISION OF HON BLE KARNATAKA HIGH COURT IN CIT VS I GATE SOLUTIONS (SUPRA), ON THE SI MILAR ISSUE ON SIMILAR FACTS. WE ARE CONSCIOUS OF THE FACTS THAT T HE DECISION IS OF NON- JURISDICTIONAL HIGH COURT IS BINDING ON TRIBUNAL AS HELD BY HON BLE BOMBAY HIGH COURT IN CIT VS GODAVARIDEVI SARAF (197 8) 113 ITR 589 (BOM). NOW CONTRARY DECISION ON THE ISSUE BY J URISDICTIONAL HIGH COURT IS BROUGHT TO OUR NOTICE BY EITHER PARTY. TH EREFORE, CONSIDERING 20 ITA NO.4911/MUM/2018 SHELL INDIA MARKETS PVT LTD THE FACT THAT DURING THE RE-ASSESSMENT THE AO RAISE D NECESSARY QUERIES, THE ASSESSEE FURNISHED DETAILED SUBMISSION, WHICH W AS ACCEPTED BY THE AO THOUGH NO REFERENCE ABOUT THE CONSIDERATION OF S UCH ISSUE IN THE ASSESSMENT ORDER. CONSIDERING THE AFORESAID LEGAL DISCUSSION, WE ARE OF THE CONSIDERED VIEW THAT THE VIEW TAKEN BY THE A O IN ACCEPTING THE EXPLANATION FURNISHED BY ASSESSEE IN RESPONSE TO TH E SHOW CAUSE NOTICE DATED 18-12-2017 DURING RE-ASSESSMENT WAS ONE OF TH E POSSIBLE VIEWS AND THE ORDER DATED 29-12-2017 IS NOT ERRONEOUS TH OUGH MAY BE PREJUDICIAL TO THE INTEREST OF REVENUE. THUS, THE T WIN CONDITIONS AS ENUMERATED IN SECTION 263 IS NOT FULFILLED, HENCE, THE REVISION OF THE ASSESSMENT ORDER IS NOT JUSTIFIED. MORE OVER THE I SSUE ON WHICH THE ORDER IS REVISED IS DEBATABLE ISSUE. CONSIDERING TH E FACT THAT TWIN CONDITIONS AS ENUNCIATED IN SECTION 263 ARE NOT SAT ISFIED, THEREFORE, THE REVISION ORDER PASSED U/S 263 DATED 25-06-2018 IS S ET ASIDE / QUASHED. 22. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 15-01-2020. SD/- SD/- (R.C. SHARMA) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIALMEMBER MUMBAI, DT : 15 TH JANUARY, 2020 PK/- COPY TO : 1. APPELLANT 21 ITA NO.4911/MUM/2018 SHELL INDIA MARKETS PVT LTD 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR /TRUE COPY/ BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI