Element K India Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 6001/DEL/2015

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6182 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-01-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: I
• Assessment Year: 2011-2012
• Appeal Filed On: 04-11-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SANJAY I BARA
• Keywords: Depreciation; Transfer pricing; International transaction; Unabsorbed depreciation
• Section: 10B

Judgement Text

ITA NO. 6001/DEL/2015 ELEMENT K INDIA PVT. LTD. PAGE 1 OF 18 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: BENCH I-1, NEW DELHI BEFORE SHRI N.K.SAINI, VICE PRESIDENT AND SMT. BEENA A PILLAI, JUDICIAL MEMBER ITA NO. 6001/DEL/2015 AY: 2011-12 ELEMENT K INDIA PVT. LTD. C-72, BASEMENT, SOUTH EXTENSION, PART-II, NEW DELHI-110049 PAN: AAACE9836D VS . ITO WARD- 8(2) NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY : SH. ANUBHAV RASTOGI, ADV. RESPONDENT BY : SH. SANJAY I BARA, CIT, D.R. DATE OF HEARING : 19/12/2018 DATE OF PRONOUNCEMENT : 28/01/2019 ORDER PER BEENA A PILLAI, JUDICIAL MEMBER PRESENT APPEAL HAS BEEN FILED BY ASSESSEE AGAINST F INAL ASSESSMENT ORDER DATED 29/09/15 PASSED BY LD. ITO W ARD 8 (2), NEW DELHI UNDER SECTION 143 (3) READ WITH SECTION 1 44C OF THE ACT ON FOLLOWING GROUNDS OF APPEAL: 2.3 INCLUDING CERTAIN COMPANIES IN THE FINAL SET T HAT ARE NOT COMPARABLE TO THE APPELLANT IN TERMS OF FUNCTIONS P ERFORMED, ASSETS EMPLOYED AND RISKS ASSUMED, AND EXCLUDING CERTAIN C OMPANIES ON ARBITRARY/ FRIVOLOUS/INCONSISTENT GROUNDS EVEN THOU GH THEY ARE COMPARABLE TO THE APPELLANT IN TERMS OF FUNCTIONS P ERFORMED, ASSETS ITA NO. 6001/DEL/2015 ELEMENT K INDIA PVT. LTD. PAGE 2 OF 18 EMPLOYED AND RISKS ASSUMED; 2.4 INCLUDING COMPANIES HAVING PECULIAR/ EXTRA-ORDI NARY BUSINESS SITUATIONS SUCH AS BUSINESS RESTRUCTURING, DIFFEREN T BUSINESS STRATEGY ETC. IN THE FINAL COMPARABLES SET, RESULTI NG IN SELECTION OF COMPARABLES HAVING ABNORMAL/ VOLATILE OPERATING MAR GINS; 2.5 DISREGARDING THE RULING OF HONBLE INCOME TAX A PPELLATE TRIBUNAL (ITAT) FOR AY 2007-08 IN APPELLANTS OWN CASE, ON REJECTION OF CERTAIN FUNCTIONALLY DISSIMILAR COMPAR ABLES, DISREGARDING RELEVANT JUDICIAL PRONOUNCEMENTS AND RELYING ON THE JUDICIAL PRONOUNCEMENTS THAT HAVE DIFFERENT FACTS AS COMPARE D TO THE APPELLANT, WHILE MAKING ADDITION ON ACCOUNT OF TP A DJUSTMENT. 2. BRIEF FACTS OF CASE ARE AS UNDER: ASSESSEE FILED ITS RETURN OF INCOME DECLARING NIL INCOME ON 30/11/11 AFTER CLAIMING UNABSORBED DEPRECIATION OF RS.2,00,427/-. CASE WAS PROCESSED UNDER SECTION 143 (1) OF THE ACT, AND WAS PICKED UP FOR SCRUTINY. ACCORDINGLY, N OTICE UNDER SECTION 143 (2) ALONG WITH QUESTIONNAIRE AND NOTICE UNDER SECTION 142 (1) WAS ISSUED TO ASSESSEE. IN RESPONSE TO STAT UTORY NOTICES, REPRESENTATIVE OF ASSESSEE APPEARED BEFORE LD.AO AN D FILED REQUISITE DETAILS AS CALLED FOR. DURING ASSESSMENT PROCEEDINGS ON VERIFICATION OF DOCUMENTS FILED, LD. AO OBSERVED TH AT ASSESSEE ENTERED INTO INTERNATIONAL TRANSACTION WITH ITS ASS OCIATED ENTERPRISES. REPORT IN FORM 3 CEB WAS FILED BY ASSE SSEE IN REGARD TO TRANSACTIONS ENTERED INTO BETWEEN ASSESSE E AND ITS AES. 2.1 LD.AO OBSERVED THAT ASSESSEE HAS BEEN STATED TO BE ENGAGED IN RENDERING E-LEARNING AND COURSEWARE CONTENT DEVE LOPMENT SERVICES, TO ITS HOLDING COMPANY, ELEMENT K ROCHEST ER USA. IT WAS OBSERVED THAT ASSESSEE ENTERED INTO AN AGREEMEN T WITH ITS US COMPANY TO PROVIDE VARIETY OF SERVICES, TO BE MU TUALLY AGREED- ITA NO. 6001/DEL/2015 ELEMENT K INDIA PVT. LTD. PAGE 3 OF 18 UPON, AND WHICH MAY INCLUDE BUT NOT TO BE LIMITED T O ONLINE COURSE CONTENT DEVELOPMENT, SOFTWARE DEVELOPMENT AN D CUSTOMER AND TECHNICAL CALL SUPPORT. ASSESSEE CHARACTERISED ITSELF TO BE IT SERVICE PROVIDER TO ITS AE, WHICH WAS RENDERED AT A N AGREED COST PLUS MARKUP BASIS. AS VALUE OF INTERNATIONAL TRANSA CTION EXCEEDED RS. 5 CRORES, CASE WAS REFERRED TO LD.TPO. UPON RECEIPT OF REFERENCE, LD.TPO CALLED FOR VARIOUS DOCUMENTS. 2.3 LD.TPO OBSERVED THAT ASSESSEE HAD FOLLOWING INTERNA TIONAL TRANSACTION WITH ITS AE. SL.N NATURE OF TRANSACTION VALUE RS. METHOD APPLIED RESULT OF ASSESSEE 1 PROVISION OF CONTENT DEVELOPMENT SERVICE 146,620,52 1 TNMM 15.00% 2 PURCHASE OF ONLINE COURSEWARE/E -BOOKS FOR RESALE 494,589 RPM 43% 3 COMMISSION RECEIVABLE FOR MARKETING OF COURSEWARE IN THE ASIA PAC REGION 1,140,708 CUP N.A. 4 COST RECHARGES 11,030 CUP N.A. 2.4 AASSESSEE USED TNMM AS MOST APPROPRIATE METHOD FOR DETERMINING VALUE OF INTERNATIONAL TRANSACTION, FOR PROVISION OF CONTENT DEVELOPMENT SERVICES, AND HAD ADOPTED PLI O F OP/OC. ASSESSEE THUS COMPUTED ITS MARGIN AT 15% FOR PROVIS ION OF CONTENT DEVELOPMENT SERVICES. FOR PURPOSES OF COMPA RABILITY, ASSESSEE USED FOLLOWING 4 COMPARABLES, OF WHICH, AV ERAGE MARGIN WAS COMPUTED AT 15.79%. ITA NO. 6001/DEL/2015 ELEMENT K INDIA PVT. LTD. PAGE 4 OF 18 SL. NO. COMMENTS OF THIS OFFICE 1. GLYPH INTERNATIONAL LTD. 2. SHREE TULSI ONLINE LTD. 3. VAKARANGEE SOFTWARES LTD. 4. TATA INDUSTRIES LTD. (ASSESSEE THUS REPORTED TRANSACTION WITH ITS AE AT ARMS LENGTH PRICE.) 2.5 LD.TPO REJECTED COMPARABLES CONSIDERED BY ASSESSEE BY APPLYING FOLLOWING FILTERS: USE OF CURRENT YEAR DATA EXPORT SALES FILTERS DIFFERENT FINANCIAL YEAR ENDING FILTER EXCLUSION OF VERY SMALL COMPANIES PERSISTENT LOSS MAKING COMPANIES 2.6 IT WAS OBSERVED BY LD.TPO THAT, ASSESSEE USED FILTE R OF OPERATING INCOME TO SALES OF MORE THAN 50%, BECAUSE OF WHICH, LD.TPO USED SERVICE INCOME FILTER. 2.7 DISSATISFIED WITH THE COMPATIBILITY ANALYSIS CARRIE D OUT BY ASSESSEE, LD.TPO CONDUCTED FRESH SEARCH AND ARRIVED AT SET OF FOLLOWING 20 COMPARABLES WITH AN AVERAGE OF 23.64%. SL. NO. COMPANY LONG NAME OP/OC 1 ACROPETAL TECHNOLOGIES LIMITED (SEGMENT) 36.69% 2 AKSHAY SOFTWARE TECHNOLOGIES LTD. 0.16% 3 CELSTREAM TECHNOLOGIES PVT. LTD. 12.26% 4 EVOKE TECHNOLOGIES PVT. LTD. 8.11% 5 E-INFOCHIPS LIMITED 56.44% 6 E-ZEST SOLUTIONS LIMITED 34.83% 7 IGATE GLOBAL SOLUTIONS LTD. 23.71% 8 INFOSYS LTD. 43.53% 9 KIREETI SOFT TECHNOLOGIES LTD. 3.63% 10 LARSEN & TOUBRO INFOTECH LTD. 18.40% 11 MINDTREE LIMITED (SEGMENT) 10.74% 12 PERSISTENT SYSTEMS & SOLUTIONS LTD. (MERGED) 22. 12% ITA NO. 6001/DEL/2015 ELEMENT K INDIA PVT. LTD. PAGE 5 OF 18 13 PERSISTENT SYSTEMS LTD. 23.08% 14 R S SOFTWARE (INDIA) LTD. 16.20% 15 SANKHYA INFOTECH LIMITED 26.20% 16 SASKEN COMMUNICATION TECHNOLOGIES LTD. 24.36% 17 TATA ELXSI LTD. (SEGMENT) 13.00% 18 THIRDWARE SOLUTIONS 16.19% 19 WIPRO TECHNOLOGIES LIMITED 54.42% 20 ZYLOG SYSTEMS LTD. 28.74% AVERAGE 23.64% 2.8 LD.TPO DETERMINED PRIZE CHARGED BY ASSESSEE TO ITS AE FALLS SHORT OF ALP BY SUM OF RS.1,10,21,853/-. ACCORDINGL Y, ADJUSTMENT WAS PROPOSED IN THE HANDS OF ASSESSEE TO THAT EXTENT. LD.TPO ALSO RECHARACTERISED SERVICES RENDERED BY AS SESSEE AS SOFTWARE DEVELOPMENT SERVICE PROVIDER, AND DETERMIN ED VALUE OF SUCH SERVICES AT RS.15,87,94,112/-, INSTEAD OF RS.1 4,77,72,259/- CHARGED BY ASSESSEE. 2.9 AGGRIEVED BY ADJUSTMENT PROPOSED BY LD.TPO, ASSESSE E RAISED OBJECTIONS BEFORE DRP. WHILE DECIDING OBJECT IONS RAISED BY ASSESSEE, DRP UPHELD THE APPROACH OF LD.TPO FOR BEN CHMARKING INTERNATIONAL TRANSACTION OF PROVISION AS ITES SERV ICES. THEY ALSO REJECTED ZYLOG SYSTEMS AS COMPARABLE. THUS AFTER DR P DIRECTIONS FINAL SET OF COMPARABLES ARE AS UNDER: SL. NO. COMPANY LONG NAME OP/OC 1 ACROPETAL TECHNOLOGIES LIMITED (SEGMENT) 36.69% 2 AKSHAY SOFTWARE TECHNOLOGIES LTD. 0.16% 3 CELSTREAM TECHNOLOGIES PVT. LTD. 12.26% 4 EVOKE TECHNOLOGIES PVT. LTD. 8.11% 5 E-INFOCHIPS LIMITED 56.44% 6 E-ZEST SOLUTIONS LIMITED 34.83% 7 INFOSYS LTD. 43.53% 8 KIREETI SOFT TECHNOLOGIES LTD. 3.63% 9 LARSEN & TOUBRO INFOTECH LTD. 18.40% 10 MINDTREE LIMITED (SEGMENT) 10.74% 11 PERSISTENT SYSTEMS & SOLUTIONS LTD. (MERGED) 22. 12% ITA NO. 6001/DEL/2015 ELEMENT K INDIA PVT. LTD. PAGE 6 OF 18 12 PERSISTENT SYSTEMS LTD. 23.08% 13 R S SOFTWARE (INDIA) LTD. 16.20% 14 SANKHYA INFOTECH LIMITED 26.20% 15 SASKEN COMMUNICATION TECHNOLOGIES LTD. 24.36% 16 TATA ELXSI LTD. (SEGMENT) 13.00% 17 THIRDWARE SOLUTIONS 16.19% 18 WIPRO TECHNOLOGIES LIMITED 54.42% 19 IGATE GLOBAL SOLUTIONS LTD. 23.71% AVERAGE 23.37% 2.10 BASED UPON DIRECTIONS OF DRP, LD. AO PASSED THE IMP UGNED FINAL ASSESSMENT ORDER AND MADE ADDITION IN THE HAN DS OF ASSESSEE AT RS.1,10,21,853/-. 2.11 AGGRIEVED BY ADDITION SO MADE BY LD. AO, ASSESSEE I S IN APPEAL BEFORE US NOW. 2.12 AT THE OUTSET, ASSESSEE ONLY OBJECTS COMPARABLES, F INALLY SELECTED BY LD.TPO FOR PURPOSES OF DETERMINING ALP OF INTERNATIONAL TRANSACTION. LD.COUNSEL SUBMITTED THA T, ASSESSEE DO NOT OBJECT RE-CHARACTERISATION OF SERVICES AS S OFTWARE DEVELOPMENT SERVICE PROVIDER BY LD.TPO. LD.COUNSEL SUBMITTED THAT GROUND NO. 1-2, 2.1-2.6 & 3 - 4 ARE THEREFORE NOT PRESSED. 2.13 ACCORDINGLY, GROUND NO. 1-2, 2.1-2.6 & 3 - 4 S TANDS DISMISSED AS NOT PRESSED . 3. ONLY ISSUES RAISED BY ASSESSEE IN GROUND NO. 2.3-2.5 , PERTAINS TO COMPARABLES WRONGLY INCLUDED/EXCLUDED B Y LD.TPO. 3.1 LD. COUNSEL SUBMITTED THAT ASSESSEE OBJECTS INCLUS ION OF FOLLOWING COMPARABLES: ACROPATEL TECHNOLOGIES LTD., (INFORMATION TECHNOLOG Y SERVICE SEGMENT); E-INFOCHIPS LTD; WIPRO TECHNOLOGY SOLUTIONS LTD; ITA NO. 6001/DEL/2015 ELEMENT K INDIA PVT. LTD. PAGE 7 OF 18 INFOSYS TECHNOLOGIES LTD; SASKEN COMMUNICATION TECHNOLOGIES 3.2. BEFORE WE DEAL WITH THE COMPARABILITY ANALYSIS, IT IS SINE QUA NON TO UNDERSTAND FUNCTIONS PERFORMED, ASSETS OWNED AN D RISKS ASSUMED BY ASSESSEE BEFORE US. FUNCTIONS: 3.3 IN TRANSFER PRICING STUDY PLACED AT PAGE 1-64 OF PA PER BOOK, IT IS OBSERVED THAT ASSESSEE UNDERTAKES SALES AND M ARKETING ACTIVITIES IN INDIA IN ORDER TO PROMOTE MARKET AND SOLICIT CUSTOMERS FOR PRINTED COURSEWARE IN INDIA UNDER OVE RALL GLOBAL POLICY OF ELEMENT K GROUP IN THIS REGARD. IT IS OBS ERVED THAT ASSESSEE IS PRIMARILY ENGAGED IN DISTRIBUTION OF PR INTED COURSEWARE DEVELOPED AND OWNED BY EK USA AND OTHER 3 RD PARTIES. 3.4 SALES AND MARKETING: ASSESSEE IS RESPONSIBLE FOR MARKETING OF COURSEWARE IN INDIAN MARKET. THE ACTIVITIES OF I NDIAN ENTITY INCLUDED DEVELOPMENT AND MAINTAINING A DISTRIBUTION NETWORK IN INDIA FOR SALE OF COURSEWARE/BOOKS. IT HAS BEEN SUB MITTED BY ASSESSEE IN THE TP STUDY THAT IT CARRIES OUT EXTENS IVE MARKET RESEARCH IN ORDER TO HOPE INFORMATION ON LOCAL MARK ET TRENDS, OTHER PLAYERS, COMPETITION, NEEDS AND FEEDBACK OF C USTOMERS ETC., BASED UPON WHICH, ASSESSEE PROJECTS ESTIMATES THE C OURSEWARE DEMAND IN INDIA, DETERMINED ACCEPTABLE PRIZES, PRIC E BAND ETC. IT IS ALSO INVOLVED IN IDENTIFYING POTENTIAL CUSTOMERS , MAKE PRESENTATION ETC IN ORDER TO SOLICIT CUSTOMERS/CONT RACTS. PRICING AND CONTRACTUAL NEGOTIATIONS: EK INDIA WAS RESPONSIBLE FOR UNDERTAKING THE PRICING/ CONTRACTUAL NEGOTIATIO NS/ DISCUSSIONS WITH THE CUSTOMERS. SUCH PRICING ETC. DECISIONS ARE TAKEN BY THE INDIAN ENTITY IN ACCORDANCE WITH THE GROUP STANDARD S/ POLICIES, ITA NO. 6001/DEL/2015 ELEMENT K INDIA PVT. LTD. PAGE 8 OF 18 STANDARD PRICE LISTS, ETC. DEVELOPED BY ELEMENT K A T THE GROUP LEVEL, WHICH ARE REQUIRED TO BE FOLLOWED BY ALL ELEMENT K GROUP COMPANIES AND/ OR BY THIRD PARTY DISTRIBUTORS (IF ANY) INVOLV ED IN SALE/ RESALE OF PRINTED COURSEWARE. PRINTING AND DELIVERY OF THE COURSEWARE: EK INDIA IS RESPONSIBLE FOR ARRANGING A PRINTING OF SUCH E-BOOKS IN INDIA A ND THEREAFTER ARRANGE TO DELIVER THE PRINTED COURSEWARE TO THE EN D CUSTOMERS IN INDIA. TO THIS END, DURING FY 2010-11, EK INDIA APP OINTED A THIRD PARTY PRINTER. FURTHER, THE INDIAN ENTITY ALSO ENSU RES THAT THE PRINTER ADHERES TO THE QUALITY STANDARDS ETC. PROVIDED BY E K USA TO THE PRINTER IN THIS REGARD. HOWEVER, IN CASE OF SALE OF COURSEWARE OF COURSEWAR E IN THE ASIAPAC REGION (OUTSIDE INDIA), PRINTING IS THE RESPONSIBIL ITY OF THE US ENTITY. INVOICING/ BILLING: EK INDIA IS RESPONSIBLE FOR BILLING AND COLLECTING THE SALES PROCEEDS FROM ITS CUSTOMERS AFTER SALE OF SUCH COURSES IN INDIA. THE INDIAN ENTITY UNDERTAKES THE NECESSARY C REDIT EVALUATIONS, REFERENCE CHECKS, ETC. BEFORE ENTERING INTO CUSTOME R CONTRACTS. HOWEVER, IN CASE OF SALE IN ASIAPAC REGION (OTHER T HAN INDIA), INVOICING, BILLING AND COLLECTION ETC. RELATED ACTI VITIES ARE THE RESPONSIBILITY OF THE US ENTITY. INVENTORY MANAGEMENT: EK INDIA IS RESPONSIBLE FOR THE INVENTORY MANAGEMENT FUNCTION. THE GROUP FOLLOWS THE PRINT O N DEMAND MODEL AND THUS DOES NOT MAINTAIN INVENTORY/ STOCK OF COUR SEWARE. FURTHER, EK INDIA IS RESPONSIBLE FOR ENSURING PRINT FULFILLM ENT AND DELIVERY OF THE BOOKS TO THE CUSTOMERS. ACCORDINGLY, IN THIS CATEGORY, FOR SALE OF COURSEWA RE IN INDIA, EK INDIA IS RESPONSIBLE FOR UNDERTAKING ALL FUNCTIONS RELATED TO THE MARKETING AND DISTRIBUTION OF THE PRINTED COURSEWAR E OF ELEMENT K IN INDIA, INCLUDING ACTIVITIES LIKE SALES AND MARKETIN G, CLIENT INTERFACE, IDENTIFICATION AND DEVELOPMENT OF BUSINESS PARTNER NETWORK, INVOICING, COLLECTION AND POST SALES SUPPORT ETC. FURTHER, WITH RESPECT TO SALE OF COURSEWARE IN ASIA PAC REGION (OUTSIDE INDIA), THE INDIAN ENTITY ACTS AS A MARKETER/ COMMI SSION AGENT WHEREIN THE PRINTING AND SALE OF COURSEWARE IS UNDE RTAKEN BY THE US ENTITY. GENERAL MANAGEMENT FUNCTIONS THE FUNCTIONS ADDRESSED BELOW ARE COMMON FUNCTIONS THAT ARE CARRIED OUT BY ANY BUSINESS IRRESPECTIVE OF THEIR S IZE AND TYPE. THESE FUNCTIONS ARE DRIVERS OF EVERY BUSINESS AND ARE IND ISPENSABLE IN THE ECONOMIC ENVIRONMENT. CORPORATE STRATEGY DETERMINATION: GENERALLY, ALL POLICIES WITHIN EK INDIA ARE DETERMINED BY ITS OWN MANAGEMEN T WHO CONTINUOUSLY MONITOR THE ECONOMIC ENVIRONMENT SURRO UNDING THE ITA NO. 6001/DEL/2015 ELEMENT K INDIA PVT. LTD. PAGE 9 OF 18 INDIAN ENTITY, ASSESS THEIR STRATEGIC POSITION WITH IN THE INDUSTRY' AND TARGET TO ACHIEVE ITS CORPORATE OBJECTIVE WITH GUID ANCE FROM EK USA. FINANCE, ACCOUNTING, TREASURY AND LEGAL FUNCTION: THE MANAGEMENT OF EK INDIA IS RESPONSIBLE FOR MANAGING THE FINANCE, TREASURY, LEGAL AND ACCOUNTING FUNCTIONS. EK INDIA IS ALSO RESPONSIBLE FOR ALL LOCAL STATUTORY COMPLIANCE. IN THIS RESPECT , WHERE APPROPRIATE, IT IS GUIDED BY EK USA POLICIES. III. ASSETS EMPLOYED HUMAN RESOURCE MANAGEMENT FUNCTION: THE HR FUNCTION AT EK INDIA IS COORDINATED BY ITS MANAGEMENT, WHICH IS RESPONSIBLE FOR RECRUITMENT, DEVELOPMENT AND TRAINING OF THE PE RSONNEL INCLUDING THE EMOLUMENT STRUCTURE. IN THIS RESPECT, WHERE APP ROPRIATE, IT IS GUIDED BY EK USA POLICIES. ANY BUSINESS REQUIRES ASSETS (TANGIBLE OR INTANGIBL E) WITHOUT WHICH IT CANNOT CARRY OUT ITS ACTIVITIES. INTANGIBLES PLAY A SIGNIFICANT ROLE IN THE FUNCTIONING OF A BUSINESS AND ARE ACCORDINGLY M ORE IMPORTANT. AN UNDERSTANDING OF THE ASSETS EMPLOYED AND OWNED BY E K INDIA PROVIDES AN INSIGHT INTO THE RESOURCES DEPLOYED BY EK INDIA AND THEIR CONTRIBUTION TO THE BUSINESS PROCESSES/ECONOMIC ACT IVITIES OF EK INDIA. IV. TANGIBLES OWNED BY EK INDIA EK INDIA UTILISES ROUTINE TANGIBLE ASSETS LIKE COMP UTERS AND PERIPHERALS, OFFICE PREMISES, COMMUNICATION FACILIT IES, FURNITURE AND FIXTURES ETC. FOR THE PURPOSE OF ITS BUSINESS. V. INTANGIBLES EK INDIA DOES NOT OWN ANY SIGNIFICANT INTANGIBLES A ND DOES NOT UNDERTAKE ANY RESEARCH AND DEVELOPMENT ON ITS ACCOU NT THAT LEADS TO THE DEVELOPMENT OF NON-ROUTINE INTANGIBLES. EK U SA, ON THE OTHER HAND, DEVELOPS/ OWNS SIGNIFICANT INTANGIBLES LIKE C ORPORATE LOGO/ TRADEMARKS, CUSTOMER RELATIONSHIPS AND NETWORKS, LI BRARY OF PRODUCTS, COPYRIGHTS, PROCESSES, PLATFORM, KNOW-HOW , TECHNICAL DATA, SOFTWARE, OPERATING/ QUALITY STANDARDS, ETC. MOREOV ER, THE US ENTITY HAS A RICH EXPERIENCE OF OVER 30 YEARS. VI. RISKS ASSUMED THE RISK PROFILE OF EK INDIA VIS-A-VIS ITS AES IS P ROVIDED IN TABLE BELOW: 3.5 BASED UPON THE ABOVE, ASSESSEE HAS BEEN CHARACTERIS ED AS A VALUE ADDED DISTRIBUTOR OF PRINTED COURSEWARE/E-BOO KS IN INDIA WHICH ASSUMES NORMAL/SIGNIFICANT RISKS ASSOCIATED W ITH CARRYING OUT SUCH MARKETING/DISTRIBUTION ACTIVITIES IN INDIA . ITA NO. 6001/DEL/2015 ELEMENT K INDIA PVT. LTD. PAGE 10 OF 18 3.6 AT THE OUTSET, LD. COUNSEL SUBMITTED THAT ZYLOG SYS TEMS LTD., HAS BEEN EXCLUDED BY DRP AND INFOSYS TECHNOLO GIES LTD., HAS BEEN EXCLUDED BY COORDINATE BENCH OF THIS TRIBU NAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2007-08 IN ITA NO. 431/DEL/2012 VIDE ORDER DATED 14/11/14 AS WELL AS F OR ASSESSMENT YEAR 2008-09 IN ITA NO. 6 TO 77/DEL/2012 VIDE ORDER DATED 22/11/2017. 3.7 IT HAS BEEN SUBMITTED THAT THIS TRIBUNAL WHILE EXCL UDING INFOSYS TECHNOLOGIES LTD., FOLLOWED DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS AGNITY INDIA TECHNOLOGIES PVT. LTD., REPORTED IN (2013) 219 TAXMANN 26. 3.8 LD. CIT(DR) THOUGH OBJECTED TO EXCLUSION OF ZYLOG SYSTEMS LTD., AND INFOSYS TECHNOLOGIES LTD., COULD NOT CONT ROVERT THEIR EXCLUSION IN ASSESSEES OWN CASE. FURTHER, HE HAS N OT BEEN ABLE TO BRING OUT ANY DISTINGUISHING FACTOR FACTUALLY, F OR US TO TAKE A CONTRARY VIEW. 3.9 THEREFORE, RESPECTFULLY FOLLOWING THE SAME, WE ALSO DIRECT LD.TPO TO EXCLUDE INFOSYS TECHNOLOGIES LTD., FROM T HE LIST OF COMPARABLES. 4. WE SHALL NOW DEAL WITH REMAINING COMPARABLES INDEPENDENTLY AS UNDER: 1. ACROPATEL TECHNOLOGIES LTD., (INFORMATION TECHNOLOG Y SERVICE SEGMENT ): LD.TPO INCLUDED THIS COMPANY IN THE LIST OF COMPARA BLES. LD.COUNSEL CONTENDED THAT THIS COMPANY IS FUNCTIONA L DISSIMILAR, AS IT IS ENGAGED IN DIVERSIFIED ACTIVITIES AND HAS THREE SEGMENTS NAMELY; ENGINEERING DESIGN SERVICES, INFORMATION TE CHNOLOGY SERVICES AND HEALTHCARE SEGMENT. IT HAS BEEN SUBMIT TED THAT THIS ITA NO. 6001/DEL/2015 ELEMENT K INDIA PVT. LTD. PAGE 11 OF 18 COMPANY IS ENGAGED IN PROVISION OF HIGH END HEALTHC ARE SERVICES AND DEVELOPS & OWNS RELATED INTELLECTUAL PROPERTY P ROVIDING SUBSTANTIAL COMPETITIVE ADVANTAGE TO THIS COMPANY, LEADING TO HIGHER PROFITABILITY. RELYING ON ANNUAL REPORT, PLA CED AT PAGE 1-80 OF PAPER BOOK LD.COUNSEL SUBMITTED THAT IT IS ENGAG ED IN SALE OF SOFTWARE PRODUCTS. THE LD. AR SUBMITTED THAT FROM P AGE 8-11 OF ANNUAL REPORT, IT IS EVIDENT THAT, WITHIN EACH VERT ICAL, THIS COMPANY IS OPERATING AS A KPO SERVICE PROVIDER. THE LD.COUNSEL FURTHER SUBMITTED THAT FROM PROFIT AND LOSS ACCOUNT , IT IS EVIDENT THAT IT EARNS REVENUE FROM SALE OF PRODUCTS, NAMELY , PRODUCT HARDWARE AND PRODUCT SOFTWARE. ON THE CONTRARY, LD.DR SUBMITTED THAT THERE IS NO R ELATED PARTY TRANSACTION DURING YEAR UNDER CONSIDERATION. WE HAVE HEARD RIVAL SUBMISSIONS OF BOTH SIDES IN LI GHT OF RECORDS PLACED BEFORE US. THIS COMPANY IS ENGAGED IN PROVISION OF HIGH END HE ALTHCARE SERVICES AND DEVELOPS & OWNS RELATED INTELLECTUAL P ROPERTY PROVIDING SUBSTANTIAL COMPETITIVE ADVANTAGE TO THIS COMPANY, LEADING TO HIGHER PROFITABILITY. AS PER ANNUAL REPO RT, THIS COMPANY IS ENGAGED IN SALE OF SOFTWARE PRODUCTS. IT IS OBSE RVED THAT ASSESSEE IS UNDERTAKING SOFTWARE DEVELOPMENT RELATI NG TO PRESENTATION OF COURSE MATERIAL BY WAY OF INCLUDING ANIMATION, GRAPHICS AND AUDIO TRAINING AIDS ETC. THEREFORE, AC ROPETAL TECHNOLOGIES LIMITED IS FUNCTIONALLY DIFFERENT FROM THAT OF ASSESSEE AND SHOULD HAVE BEEN EXCLUDED BY LD.TPO. T HE COMPANY IS ALSO ENGAGED IN TWO BUSINESS SEGMENTS, I .E., SALE OF PRODUCTS AND SALE OF SERVICES BUT SEGMENTAL PROFITA BILITY IS NOT AVAILABLE IN AUDITED FINANCIAL STATEMENTS. ITA NO. 6001/DEL/2015 ELEMENT K INDIA PVT. LTD. PAGE 12 OF 18 THEREFORE, WE DIRECT LD.TPO TO EXCLUDE THIS COMPANY FROM COMPARABLES. 2. E-INFOCHIPS LTD : LD.TPO INCLUDED THIS COMPANY IN THE LIST OF COMPARA BLES. LD.COUNSEL CONTENDED THAT THIS COMPANY IS FUNCTIONA L DISSIMILAR, IN AS MUCH AS IT IS ENGAGED IN SOFTWARE DEVELOPMENT AND IT ENABLED SERVICES AND ALSO PRODUCTS. LD.TPO INCLUDED THIS COMPANY INTO FINAL LIST AS IT HAS 2 HEADS OF INCOME BEING INCOME FROM SOFTWARE DEVELOPMENT AND INCOME FROM IT SERVIC ES WHICH TOGETHER AMOUNTS TO 86% OF TOTAL INCOME OF THE COMP ANY. LD. TPO OPINED THAT SEGMENTAL DATA, THE OTHER ACTIVITIE S ARE OF VERY SMALL VOLUME AND INTEGRALLY CONNECTED WITH FUNCTION S OF PROVIDING SOFTWARE SERVICES ON THE CONTRARY, LD.DR SUBMITTED THAT THERE IS NO R ELATED PARTY TRANSACTION DURING THE YEAR UNDER CONSIDERATION. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH SIDES I N THE LIGHT OF RECORDS PLACED BEFORE US. WE FIND FROM ANNUAL REPORT OF THIS COMPANY PLACED I N PAPER BOOK AT PAGE 81-149, THAT SCHEDULE OF INCOME INDICATES I TS OPERATING REVENUE FROM SOFTWARE DEVELOPMENT, HARDWARE MAINTEN ANCE, INFORMATION TECHNOLOGY, CONSULTANCY ETC. THERE IS N O SEGMENTAL INFORMATION AVAILABLE AS REGARDS REVENUE FROM SALE OF PRODUCTS AND REVENUE FROM SOFTWARE DEVELOPMENT SEGMENT. AS A SSESSEE IS SIMPLY ENGAGED IN RENDERING SOFTWARE DEVELOPMENT SE RVICES AND THERE IS NO SALE OF ANY SOFTWARE PRODUCTS, THIS COM PANY, IN OUR CONSIDERED OPINION, CEASES TO BE COMPARABLE. IT IS OBVIOUS THAT FROM COMMON POOL OF INCOME FROM BOTH STREAMS OF SOF TWARE PRODUCTS AND SOFTWARE SERVICES, ONE CANNOT DEDUCE R EVENUE FROM ITA NO. 6001/DEL/2015 ELEMENT K INDIA PVT. LTD. PAGE 13 OF 18 SOFTWARE SERVICES AND NO ONE KNOWS IMPACT OF REVENU E FROM PRODUCTS ON OVERALL KITTY OF PROFIT, WHICH MAY BE S IGNIFICANT. SINCE NO SEGMENTAL DATA OF THIS COMPANY IS AVAILABL E INDICATING OPERATING PROFIT FROM SOFTWARE DEVELOPME NT SERVICES, WE ORDER TO EXCLUDE THIS COMPANY FROM THE LIST OF COMPARABLES. 3. WIPRO TECHNOLOGY SOLUTIONS LTD: THIS COMPARABLE HAS BEEN INCLUDED BY LD.TPO. LD.COU NSEL OBJECTED FOR INCLUSION OF THIS COMPANY IN THE LIST OF COMPARABLES BY ARGUING THAT APART FROM THIS COMPANY BEING FUNCT IONALLY DIFFERENT AND AVAILABILITY OF INSUFFICIENT SEGMENTA L INFORMATION, THERE WERE ALSO SIGNIFICANT RELATED PARTY TRANSACTI ONS. LD.TPO DID NOT ACCEPT ASSESSEES CONTENTION OF RELATED PARTY T RANSACTIONS AND PROCEEDED TO INCLUDE IT IN THE FINAL SET OF COMPARA BLES. ON THE CONTRARY, LD.DR SUBMITTED THAT THERE IS NO R ELATED PARTY TRANSACTION DURING THE YEAR UNDER CONSIDERATION. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH SIDES I N THE LIGHT OF RECORDS PLACED BEFORE US. LD.COUNSEL SUBMITTED THAT WIPRO TECHNOLOGY SERVICES LIMITED (FORMERLY CITI TECHNOLOGY SERVICES LIMITED) (THE C OMPANY) WAS INCORPORATED ON 15 SEPTEMBER, 2004. THE ENTIRE SHA RE CAPITAL OF THE COMPANY WAS HELD BY CITICORP BANKING CORPORATIO N, A COMPANY INCORPORATED UNDER LAWS OF DELAWARE, USA, U PTO 20 JANUARY, 2009. IT WAS SUBMITTED THAT WIPRO LIMITED (WIPRO) EXECUTE D AGREEMENT WITH CITIGROUP INC. FOR ACQUIRING ALL OF CITIGROUP INTEREST IN THE ITA NO. 6001/DEL/2015 ELEMENT K INDIA PVT. LTD. PAGE 14 OF 18 COMPANY W.E.F. 21 JANUARY 2009. ON 21 JANUARY 2009 , WIPRO SIGNED MASTER SERVICE AGREEMENT (MSA) WITH CITIGROU P INC. FOR DELIVERY OF TECHNOLOGY INFRASTRUCTURE SERVICES, APP LICATION DEVELOPMENT AND MAINTENANCE SERVICES AFTER ACQUISIT ION BY WIPRO, NAME OF COMPANY WAS CHANGED TO WIPRO TECHNOL OGY SERVICES LIMITED (WTS OR THE COMPANY) ON 16 MAR CH 2009. IT IS OBSERVED FROM THE ABOVE THAT, WIPRO TECHNOLOG Y SERVICES LTD., WHICH WAS EARLIER CITI TECHNOLOGY SERVICES LT D., WAS HELD BY CITI CORP. BANKING CORPORATION, USA UPTO 20TH JANUA RY, 2009. WIPRO LTD., PARENT COMPANY OF WHICH EXECUTED AGREEM ENT WITH CITI GROUP INC., FOR ACQUIRING CITI TECHNOLOGY SERV ICES LTD., NOW CALLED WIPRO TECHNOLOGY SERVICES LTD. ON 21.1.2009 , WIPRO LTD. SIGNED MASTER AGREEMENT WITH CITI GROUP INC., FOR T HE DELIVERY OF TECHNOLOGY INFRASTRUCTURE SERVICES AND APPLICATION DEVELOPMENT AND MAINTENANCE SERVICES FOR THE PERIOD OF SIX YEAR S, WHICH ALSO INCLUDES THE YEAR UNDER CONSIDERATION. THIS SHOWS T HAT INCOME FROM SOFTWARE DEVELOPMENT SUPPORT AND MAINTENANCE S ERVICES WAS EARNED BY WIPRO TECHNOLOGY SERVICES LTD., FROM CITI GROUP INC., BY MEANS OF MASTER SERVICE AGREEMENT ENTERED INTO BETWEEN WIPRO LTD., ITS PARENT COMPANY AND CITI GROUP INC., A THIRD PERSON. IT IS OBSERVED THAT THE ISSUES RAISED BY LD. CIT DR IN RESPECT OF COMPARABILITY OF THIS COMPARABLE HAS BEEN DEALT WIT H BY COORDINATE BENCH OF DELHI TRIBUNAL IN SAXO INDIA PVT.LTD VS. ACIT (SUPRA) AS UNDER: WE HAVE NOTICED ABOVE FROM THE LANGUAGE OF RULE 10B (1)(E)(II) THAT IT IS THE NET PROFIT MARGIN REALIZED FROM A COMPARABLE UN CONTROLLED TRANSACTION, WHICH IS CONSIDERED FOR THE PURPOSES O F BENCHMARKING. THE ITA NO. 6001/DEL/2015 ELEMENT K INDIA PVT. LTD. PAGE 15 OF 18 EPITOME OF `COMPARABLE UNCONTROLLED TRANSACTION IS THAT THE COMPANIES OR TRANSACTIONS IN ORDER TO FALL WITHIN THE AMBIT O F SUB-CLAUSE (II) OF RULE 10B(1)(E), SHOULD BE BOTH COMPARABLE AS WELL AS UN CONTROLLED. `UNCONTROLLED TRANSACTION HAS BEEN DEFINED IN RULE 10A(A) TO MEAN: A TRANSACTION BETWEEN ENTERPRISES OTHER THAN ASSOCIAT ED ENTERPRISES, WHETHER RESIDENT OR NON-RESIDENT. THIS SHOWS THAT IN ORDER TO BE CALLED AS AN UNCONTROLLED TRANSACTION, IT IS NECESSARY THA T THE SAME SHOULD BE BETWEEN ENTERPRISES, OTHER THAN ASSOCIATED ENTERPRI SES. SECTION 92B(2) PROVIDES THAT: A TRANSACTION ENTERED INTO BY AN ENTERPRISE WITH A PERSON OTHER THAN AN ASSOCIATED ENTERPRISE SHALL, FOR THE PURPOSES OF SUB-SECTION (1), BE DEEMED TO BE A TRANSACTION ENTERED INTO BETWEEN TWO ASSOCIATED ENTERPRISES, IF THERE EXISTS A PRIOR AGREEMENT IN R ELATION TO THE RELEVANT TRANSACTION BETWEEN SUCH OTHER PERSON AND THE ASSOC IATED ENTERPRISE, OR THE TERMS OF THE RELEVANT TRANSACTION ARE DETERM INED IN SUBSTANCE BETWEEN SUCH OTHER PERSON AND THE ASSOCIATED ENTERP RISE. ON GOING THROUGH SUB-SECTION (2) OF SECTION 92B, IT IS CLEARLY BORNE OUT THAT A TRANSACTION WITH NON-AE SHALL BE DEEMED TO B E A TRANSACTION ENTERED INTO BETWEEN TWO AES, IF THERE EXISTS A PRI OR AGREEMENT IN RELATION TO THE RELEVANT TRANSACTION BETWEEN THIRD PERSON AND THE AE, OR THE TERMS OF RELEVANT TRANSACTION ARE DETERMINED IN SUBSTANCE BETWEEN THE THIRD PERSON AND AE. WHEN WE CONSIDER SECTION 9 2B(2) IN COMBINATION WITH RULE 10A(A), IT FOLLOWS THAT TRANS ACTION BETWEEN NON- AES SHALL BE CONSTRUED AS A TRANSACTION BETWEEN TWO AES, IF THERE EXISTS A PRIOR AGREEMENT IN RELATION TO RELEVANT TR ANSACTION BETWEEN THIRD PERSON AND AE. IF SUCH AN AGREEMENT EXISTS, THIRD PERSON IS ALSO CONSIDERED AS AN AE, AND TRANSACTION WITH SUCH THIR D PERSON BECOMES INTERNATIONAL TRANSACTION WITHIN THE MEANING OF SEC TION 92B. ONCE THERE IS A TRANSACTION BETWEEN TWO ASSOCIATED ENTERPRISES , IT CEASES TO BE AN UNCONTROLLED TRANSACTION AND, THEREBY, GOES OUT O F RECKONING UNDER RULE 10B(1)(E)(II). ADVERTING TO THE FACTS OF THE INSTANT CASE, WE FIND THAT WIPRO TECHNOLOGY SERVICES LTD. EARNED REVENUE FROM MASTER SERVICES A GREEMENT WITH CITIGROUP INC. FOR THE DELIVERY OF TECHNOLOGY INFRA STRUCTURE SERVICES. THIS AGREEMENT WAS, IN FACT, EXECUTED BETWEEN THE ASSESS EE'S AE, WIPRO LTD., AND CITIGROUP INC., A THIRD PERSON. THIS UNFO LDS THAT THE TRANSACTION OF EARNING REVENUE FROM SOFTWARE DEVELOPMENT SUPPOR T AND MAINTENANCE SERVICES BY WIPRO TECHNOLOGY SERVICES L TD., IS AN INTERNATIONAL TRANSACTION BECAUSE OF THE APPLICATIO N OF SECTION 92B(2) I.E., THERE EXISTS A PRIOR AGREEMENT IN RELATION TO SUCH TRANSACTION BETWEEN CITIGROUP INC. (THIRD PERSON) AND WIPRO LTD . (ASSOCIATED ENTERPRISE). IN THE LIGHT OF THIS STRUCTURE OF TRAN SACTION, IT CEASES TO BE UNCONTROLLED TRANSACTION AND, HENCE, WIPRO TECHNOLO GY SERVICES LTD., ITA NO. 6001/DEL/2015 ELEMENT K INDIA PVT. LTD. PAGE 16 OF 18 DISQUALIFIES TO BECOME A COMPARABLE UNCONTROLLED TR ANSACTION FOR THE PURPOSES OF INCLUSION IN THE FINAL LIST OF COMPARAB LES UNDER RULE 10B(1)(E)(II). WE, THEREFORE, DIRECT REMOVAL OF THI S COMPANY FROM THE LIST OF COMPARABLES. RESPECTFULLY FOLLOWING THE SAME WE ALSO DIRECT REMO VAL OF THIS COMPANY FROM THE LIST OF COMPARABLES. 4. SASKEN COMMUNICATION TECHNOLOGIES LD.TPO INCLUDED THIS COMPANY IN FINAL SET OF COMPAR ABLES. LD.COUNSEL SUBMITTED THAT THIS COMPANY IS ENGAGED I N SALE OF SOFTWARE PRODUCTS AND OFFERS IP LED PRODUCTS IN MUL TIMEDIA, AND ANDROID SOFTWARE PLATFORM. HE SUBMITTED THAT, IT OW NS BRANDED PRODUCTS AND HAS ITS OWN IPR. HE THUS SUBMITTED THA T THIS COMPANY DEALS IN IS PRODUCTS AS WELL AS SERVICES. T HUS LD.COUNSEL SUBMITTED THAT IT CANNOT BE COMPARED WIT H CAPTIVE SERVICE PROVIDER LIKE THAT OF ASSESSEE. LD.COUNSEL SUBMITTED THAT THIS COMPARABLE HAS BEEN EXCLUDED BY HONBLE DELHI HIGH COURT, IN AGILIS INFORMATION TEC HNOLOGIES INTERNATIONAL PVT.LTD. , REPORTED IN 88 TAXMANN.COM 6 , DECISION OF COORDINATE BENCHES OF THIS TRIBUNAL IN CASE OF CONEXANT SYSTEMS PVT.LTD VS. DCIT REPORTED AND 91 TAXMAN.COM 308 , CLEAR2PAY INDIA PVT.LTD VS ITO REPORTED AND 95 TAXMANN.COM 284 , ON SIMILAR GROUND LD.DR SUBMITTED THAT SEGMENTAL INFOR MATION IS AVAILABLE AND SERVICES RENDERED BY THIS COMPANY IS SIMILAR TO ASSESSEE AND THEREFORE MUST BE CONSIDERED AS A COMP ARABLE. HE SUBMITTED THAT THE BRANDED PRODUCTS AMOUNTS TO ONLY 10% OF TOTAL REVENUE AND THEREFORE WILL NOT HAVE MUCH IMPA CT. WE HAVE CONSIDERED RIVAL SUBMISSIONS ON BASIS OF RE CORDS PLACED BEFORE US. FROM TP STUDY PLACED AT PAGE 378-501, IT IS OBSERVED ITA NO. 6001/DEL/2015 ELEMENT K INDIA PVT. LTD. PAGE 17 OF 18 THAT REVENUE GENERATED FROM SALE OF SOFTWARE SERVIC ES/ PRODUCTS AND OTHER SERVICES ARE TO THE TUNE OF RS.39,419.62 CRORES. FURTHER IT IS OBSERVED FROM ORDER OF LD.TPO THAT TH IS COMPANY HAS BEEN SELECTED AS A COMPARABLE ONLY BECAUSE IT S ATISFIES FILTER OF APPLICABILITY OF 75% OF ITS INCOME FROM SERVICES . HOWEVER ON PERUSAL OF ACCOUNTS, NO SEGMENTAL FINANCIALS ARE AV AILABLE. MOREOVER IN OUR CONSIDERED OPINION FUNCTIONALLY ITS ELF THIS COMPANY IS NOT COMPARABLE WITH THAT OF ASSESSEE. ACCORDINGLY WE DIRECT THIS COMPARABLE TO BE EXCLUDE D FROM THE FINAL LIST. 5. ACCORDINGLY WE DISPOSE OF THESE GROUNDS RAISED BY A SSESSEE AS DISCUSSED HEREIN ABOVE. 6. IN THE RESULT APPEAL FILED BY ASSESSEE STANDS PARTL Y ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28/01/2019. SD/- SD/- (N.K.SAINI) (BEENA A PILLAI) VICE PRESIDENT JUDICIAL MEMBER DT. 28/01/2019 BIDHAN ITA NO. 6001/DEL/2015 ELEMENT K INDIA PVT. LTD. PAGE 18 OF 18 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT - TRUE COPY - BY ORDER, ASSISTANT REGISTRAR ITAT DELHI BENCHES S.NO. DETAILS DATE 1 DRAFT DICTATED ON DRAGON 2 DRAFT PLACED BEFORE AUTHOR 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 5 APPROVED DRAFT COMES TO THE SR. PS/PS 6 KEPT FOR PRONOUNCEMENT 28.01.2019 7. ORDER UPLOADED ON 8 FILE SENT TO BENCH CLERK 9 DATE ON WHICH THE FILE GOES TO HEAD CLERK 10 DATE ON WHICH FILE GOES TO A.R. 11 DATE OF DISPATCH OF ORDER