THE ACIT 15(2), MUMBAI V. M/S. SUPER DIAMONDS, MUMBAI

ITA 6399/MUM/2007

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8228 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2012
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: L
• Next Hearing Date: 30-07-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 18-10-2007
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: R MURALIDHAR
• Keywords: Transfer pricing; International transaction
• Section: 10B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH L, MUMBAI BEFORE SHRI R.S.SYAL, ACCOUNTANT MEMBER & SHRI I.P.BANSALJUDICIAL MEMBER ITA NO. 6399/MUM/2007(A.Y. 2004-05) THE ACIT 15(2), ROOM NO.113, MATRU MANDIR, TARDEO, GRANT ROAD, MUMBAI 400 007. (APPELLANT) VS. M/S. SUPER DIAMONDS, C/C. RAMESH RAJU & CO., CAS, 456, PURUSHOTTAM BLDG., 1 ST FLOOR, LAMINGTON ROAD, OPP. OPERA HOUSE POST OFFICE, MUMBAI 400 04. PAN:AASFS 5075P APPELLANT BY : SHRI AJIT KUMAR JAIN RESPONDENT BY : SHRI R. MURALIDHAR DATE OF HEARING : 31/07/2012 DATE OF PRONOUNCEMENT : 0 3/08/2012 ORDER PER I.P.BANSAL, J.M THIS IS AN APPEAL FILED BY THE REVENUE. IT IS DI RECTED AGAINST THE ORDER DATED 1 ST AUG.2007 OF LD. CIT(A)-XV, MUMBAI FOR THE ASSESSM ENT YEAR 2004-05. THE GROUNDS OF APPEAL RAISED BY THE REVE NUE READ AS UNDER: 1.ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS. 2, 58,00,000/- BEING THE ADJUSTMENTS MADE TO THE PURCHASE PRICE OF IMPORTS F ROM ASSOCIATED ENTERPRISES. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD CIT(A) ERRED IN OBSERVING THAT THE COMPARABLE UN CONTROLLED PRICE METHOD CAN BE USED FOR DETERMINING THE ARMS LENGTH PRICE IN THIS CASE. 3. ON THE FACTS AND IN THE CIRCUMSTANCES O THE CASE AND IN LAW,, THE LD. CIT(A) ERRED IN ACCEPTING THE ASSESSEES PLEA T HAT THE BENCHMARKED OPERATING PROFIT RATIO SHOULD BE APPLIED TO THE SAL E TURNOVER ITA NO. 6399/MUM/2007(A.Y. 2004-05) 2 CORRESPONDING TO THE PURCHASES MADE FROM ASSOCIATED ENTERPRISES AND NOT TO THE TOTAL TURNOVER. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE ID. CIT(A) ERRED IN HOLDING THAT THE WORDING NET PROFIT MARGIN FOR RULE 10B, NECESSARILY MEANS ONLY THE NET PROFIT DETERMIN ED AFTER ALLOWANCE OF COST INCLUSIVE OF INTEREST COST AND CONSEQUENTLY HOLDING THAT TAKING OPERATING PROFIT AS BASE FOR BENCHMARKING AS CONSI DERED BY THE TRANSFER PRICING OFFICER IS NOT IN TUNE OF RULE 10B OF INCOME TAX RULES. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) ERRED IN HOLDING THAT THE CAPITAL BASE MATERIALLY AFFECT THE OPERATING PROFIT, IGNORING THE FINDINGS OF THE TRAN SFER PRICING OFFICER THAT DURING THE PROCEEDINGS, THE ASSESSEE COULD NOT DEMONSTRATE THAT THE DIAMOND INDUSTRY IS A CAPITAL INTENSIVE INDUSTR Y. 6. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN HOLDING THAT SEVEN COMPARABLE ENTIT IES SELECTED BY THE TRANSFER PRICING OFFICER DO NOT APPEAR TO BE COMPAR ABLE WITH THE ASSESSEE. 7. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) ERRED IN ACCEPTING THE WORKING OF ARMS LENGTH PRICE AS DONE BY THE ASSESSEE WHICH ARE BASED ONLY ON THREE ENTITIES OR INDUSTRY AVERAGE BASED ON FOUR ENTITIES 2. THE ASSESSEE FIRM IMPORTS ROUGH DIAMONDS FROM M /S. SWETGEMS BVBA AND OTHER PARTIES ON PRINCIPAL TO PRINCIPAL BASIS. IT GETS THESE DIAMONDS CUT AND POLISHED AND THEN EXPORT SUCH PROCESSED DIAMOND S. THE RETURN OF INCOME WAS FILED ON 28/10/2004 ON A TOTAL INCOME OF RS.26.26.217/-, WHICH HAS BEEN ASSESSED VIDE ORDER DATED 26/12/2006 ON AN INCOME OF RS. 2,84,26,217/- BY MAKING AN ADDITION OF RS. 2,58,00 ,000/- AS PER ORDER DATED 22/12/2006 PASSED BY TPO UNDER SECTION 92CA(3 ) OF THE INCOME TAX ACT, 1961 (THE ACT.). THE INTERNATIONAL TRANSACTIO NS ENTERED INTO BY THE ASSESSEE WITH ITS ASSOCIATED ENTERPRISES (AE) IS AN AGGREGATE SUM OF RS.16,19,73,522/- WHICH REPRESENT IMPORT COST OF RO UGH DIAMONDS. THE ASSESSEE ADOPTED TNMM METHOD TO BENCH MARK THE SAI D TRANSACTION AND DURING THE COURSE OF HEARING BEFORE TPO THE ASSESSE E HAD ADDITIONALLY TAKEN ITA NO. 6399/MUM/2007(A.Y. 2004-05) 3 SUPPORT OF CUP METHOD TO BENCH MARK THE TRANSACTION . THE TPO REJECTED THE CUP METHOD IN VIEW OF THE NON AVAILABILITY OF A DEQUATE DOCUMENTARY EVIDENCE REGARDING COMPARABILITY OF DIAMONDS PURC HASED FROM THE AE AND NON-AES AND TOOK RECOURSE TO THE REMARKS MADE IN TH E TRANSFER PRICING REPORT SUBMITTED VIDE LETTER DATED 12/5/2006 IN WHI CH IT WAS STATED AS UNDER: IT IS IMPOSSIBLE AND IMPRACTICABLE TO COMPARE THE PRICES IN ONE INVOICE WITH THAT IN ANOTHER THOUGH HAVING SAME DESCRIPTION I.E. ROUGH DIAMONDS. IN FACT, EVEN A SINGLE INVOICE OF ROUG H DIAMONDS CONTAINS DIFFERENT LOTS, ALL DESCRIBED AS ROUGH DIAMONDS BUT PRICED DIFFERENTLY AND SOMETIMES INVOICE GIVES DETAILS OF ONLY ONE LOT THOUGH THERE ARE DIFFERENT QUALITIES OF GOODS INCLUDED IN PARCEL. AFTER REJECTION OF CUP METHOD CLAIMED BY THE ASSESS EE THE TPO HAD PROCEEDED TO USE TNMM METHOD. THE TPO SELECTED CE RTAIN COMPARABLES OUT OF 65 DIAMOND MANUFACTURING CASES WHICH HAD DIFFER ENT CATEGORIES OF SALE TURNOVER. AS THE ASSESSEES TURNOVER IS RS.57.27 C RORES THE TPO SELECTED THE COMPARABLES HAVING SALES BETWEEN RS.50 TO RS.100 CR ORES AND THE OPERATING PROFIT MARGIN ON SALES OF THOSE COMPARABLES WAS WORKED OUT AT 5.13%. A LIST IS STATED TO BE ENCLOSED AS ANNEXURE -A WITH T HE ORDER OF THE TPO, HOWEVER, THE SAID ANNEXURE HAS NOT BEEN FILED BY TH E REVENUE ALONGWITH ORDER OF THE TPO. IT IS OBSERVED BY THE TPO THAT S INCE ASSESSEES MARGIN DID NOT FALL WITHIN SAFE HARBOUR OF +/- 5% THE ASSE SSEE WAS REQUIRED TO EXPLAIN AS TO WHY TP ADJUSTMENT SHOULD NOT BE MADE. THE AS SESSEE INTER- ALIA SUBMITTED THAT THE WORKING CAPITAL WAS ONLY RS.36.9 2 LACS AS AGAINST THE TOTAL CAPITAL OF SOME OF THE ENTITIES SOUGHT TO BE COMPARED OF RS.102.72 CRORES; OUTSTANDING CREDITORS CONSTITUTE 134 DAYS T O THE PURCHASES AS AGAINST ONLY 103 DAYS FOR SOME OF THE COMPARABLES; OUTSTANDING DEBTORS CONSTITUTE ONLY 46 DAYS OF THE SALES AS AGAINST 110 DAYS OF THE COMPARABLES; SALE OF THE ASSESSEE TO CAPITAL RATIO I.E. CAPITAL TURNOVER RATIO IS ABOUT 158 TIMES AS AGAINST JUST 1.83 TIMES OF SOME OF THE CO MPARABLES ETC. LD. TPO REJECTED ALL THE THESE SUBMISSIONS OF THE ASSESSEE STATING INTER- ALIA THAT DIAMOND IS NOT A CAPITAL INTENSIVE INDUSTRY; THE AS SESSEE DID NOT INCUR ITA NO. 6399/MUM/2007(A.Y. 2004-05) 4 INTEREST COST WHILE COMPARABLES HAVE INCURRED AND THE MARGIN OF THE COMPARABLES HAVE BEEN WORKED OUT AFTER EXCLUDING T HE INTEREST COST; THE ASSESSEE DID NOT FURNISH ANY PRICE COMPARISON DATA ON AN INVOICE TO INVOICE BASIS ETC. THE TPO CALCULATED AN ADDITION OF RS. 2 .58 CRORES VIDE PARA 12 OF HIS ORDER AS UNDER: 12. IN THE LIGHT OF THE ABOVE, THE ARGUMENTS PROV IDED BY THE ASSESSEE ARE REJECTED. THUS AN ADJUSTMENT IS MADE TO THE PURCH ASE PRICE OF IMPORT FROM AES AS UNDER: PARTICULARS ACTUAL(RS. IN CR.) ARMS LENGTH (RS. IN CR.) SALES 57.29 57.27 OPERATING COST 56.91 54.33 AE 16.19 13.61 NON-AE 40.72 40.72 PROFIT 0.36 2.94 105% OF 13.61 = 14.29 WHICH IS, NOT WITHIN +/- 5% A LSO. HENCE, AN ADJUSTMENT OF RS. 2.58 CORES IS MADE TO THE INCOME OF THE ASSESSEE BY REDUCING THE COST OF PURCHASE FROM THE AE BY RS. 2. 58 CORES. 3. AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE LD. CIT(A) RAISING AS MANY AS 13 GROUNDS. THE FIRST ISSUE RAISED BY THE ASSESEE WAS REGARDING APPLICATION OF COMPARABLE UNCONTROLLED PRICES METHO D TO DETERMINE THE ALP. THE FOREMOST CONTENTION OF THE ASSESSEE TO S UPPORT SUCH GROUND WAS THAT NECESSARY DETAILS WERE FILED WITH THE TPO VIDE LETTER DATED 12/05/2006, WHERE ONE TO ONE COMPARISON WERE GIVEN WITH RESPEC T TO THE TRANSACTIONS MADE WITH AE AND NON-AE. ACCORDING TO ASSESSEE FOR WORKING ALP UNDER CUP METHOD SUFFICIENT DATA AND ANALYSIS WAS FURNISH ED AND, THEREFORE, TPO WAS WRONG IN LAYING UNNECESSARY EMPHASIS ON THE GEN ERAL COMMENT GIVEN IN THE TP REPORT. COPIES OF IMPORT INVOICES AND BILL S OF ENTRIES DULY ATTESTED BY CUSTOM AUTHORITIES WERE ALSO FURNISHED TO TPO AND TPO HAS REJECTED THE SAME. LD. CIT(A) HAS GIVEN A CHART AT PAGE 4 OF TH E IMPUGNED ORDER, WHEREIN THE ASSESSEE HAS COMPARED TRANSACTIONS OF THE AE A ND NON-AES TO SHOW THAT WHAT RATE WAS CHARGED BY ITS AE WAS ALSO CHARG ED BY THE UNRELATED PARTIES AND LOOKING INTO THE SAID DETAILS LD. CIT(A ) HAS ACCEPTED THE CONTENTION OF THE ASSESSEE AND HAS RECORDED A FINDI NG THAT WITH THE ITA NO. 6399/MUM/2007(A.Y. 2004-05) 5 APPLICATION OF CUP METHOD THE ALP OF AE FALLS WITHI N THE RANGE OF +/- 5%. LD. CIT(A) HAS ALSO UPHELD THE CONTENTION OF THE AS SESSEE ON TNMM METHOD VIDE WHICH AFTER GIVING ADJUSTMENT SOUGHT BY THE AS SESSEE IN THE COMPARABLE MARGIN, LD. CIT(A) HAS HELD THAT THE ALP WORKED OUT WILL BE WITHIN THE SAFE HARBOUR OF 5%, THEREFORE, NO ADJUSTMENT IS REQUIRED . IT IS AGAINST THESE FINDING OF LD. CIT(A) THE REVENUE HAS RAISED THE AF OREMENTIONED GROUNDS. 4. BEFORE US BOTH PARTIES HAVE ARGUED THE ISSUES R AISED IN THE PRESENT APPEAL AT LENGTH. IT WAS FOUND THAT ON THE BASI S OF FOLLOWING CHART WHICH IS GIVEN IN PAGE 10 OF THE LD. CIT(A) IT HAS BEEN HELD THAT THE ASSESSEES TRANSACTION IS AT ARMS LENGTH AS IT IS WITHIN SAF E HARBOUR OF +/-5%. M/S SUPER DIAMONDS BIFURCATIONS ACTUAL AE NON-AE OPERATING COST 578,084,572 161,973,522 416,111,050 OPERATING PROFIT 4,293,419 1,202,970 3,0 90,439 SALE 582,377,981 163,176,492 419,201,489 OPERATING PROFIT TO SALES AS PER TPO 5.13% SALE PRICE OF PURCHASE FROM AE 163,176,492 LESS:OPERATING PROFIT @5.13% 8,370,954 OPERATING COST I.E. PURCHASE PRICE AT ALP 154,805,5 38 105% OF ALP 162,545,815 ACTUAL PRICE 161,973,522 AS ACTUAL PRICE IS LESS THAN ALP AS ADJUSTED BY 5%, NO ADJUSTMENT IS REQUIRED. FROM THE AFOREMENTIONED CHART IT WAS NOTICED THAT T HE OPERATING COST SHOWN BY THE ASSESSEE WITH ITS AE DID NOT INCLUDE OPERAT IONAL COST , WHILE TREATING THE SALE OPERATIONAL PROFIT WAS TAKEN INTO CONSIDER ATION. THE LD. AR OF THE ITA NO. 6399/MUM/2007(A.Y. 2004-05) 6 ASSESSEE ADMITTED THAT THERE IS A MISMATCH AND TO RECTIFY THE SAME LD. A.R SOUGHT ONE DAY TIME AND THE MATTER WAS ADJOURNED T O 31/7/2012. ON 31/7/2012. THE LD. A.R HAS FURNISHED THE FOLLOWIN G CHART. M/S. SUPER DIAMONDS. WORKING OF OPERATING PROFIT VIS A VIS PURCHASE FROM AE & NON AE AY 2004-04 1. TOTAL OPERATING COST 578,084,572 2. OPERATING PROFIT 4,293,419 3. SALES 582,377,981 4. OPERATING PROFIT/SALE (3/1%) 0.74 5. TOTAL OPERATING COST INCLUDE COST OF GOODS SOLD 557,562,928 OTHER OPERATING COST INCLUDING L/C 20,521,644 578,084,572 ALLOCATION BETWEEN AE /NON AE AE NON-AE TOTAL ALLOCATION OF COST OF GOODS SOLD ACTUAL PURCHASE 161,973,522 395,589,406 557,562,92 8 OP.COST OUT OF OTHER OPERATING EXPENSES LIKE LABOUR CHARGES , ETC. APPORTION ON THE BASIS OF ACTUAL COST. 5,961,592 14,560 ,052 20,521,644 ___________________________________________ TOTAL OPERATING COST AS IN 1 ABOVE 167,935,114 410,149,458 578 ,084,572 ACTUAL OPERATING REVENUE APPORTIONED ON THE BASIS OF OP. COST AS IN 1 ABOVE. 169,182,361 413,195,620 582 ,377,981 ______________________ ________________________ OPERATING PROFIT EARNED ON TRANSMISSION WITH AE/NON AE AS IN 3 ABOVE 1,247,247 3,046,162 4,293,409 OPERATING PROFIT ATTRIBUTABLE TO PURCHASE FROM AE 0.74 0.74 0.74 OPERATING PROFIT TO SALE PER TPO 5.13 OPERATING REVENUE OF GOODS PURCHASED FROM AE 169,182,361 OP. PROFIT @ 5.13% 8,679,055 OPERATING COST PER TPO 160,503,306 OPERATING COST AS ATTRIBUTABLE TO AE AS DETERMINED BY TPO + 5% 168,528,471 ACTUAL COST WITH LABOUR CHARGES 167,935,114 ACTUAL PURCHASE PRICE 161,973,522 AS ACTUAL COST/PURCHASE PRICE FALLS WITHIN + 5% OF ALP NO ADJUSTMENT IS CALLED FOR. ITA NO. 6399/MUM/2007(A.Y. 2004-05) 7 5. ON THE ABOVE FACTS, LD. D.R SUBMITTED THAT THE C IT(A) WAS WRONG IN ACCEPTING THE CUP METHOD FOR DETERMINATION OF ALP A ND TAKING RECOURSE TO THE GROUNDS OF APPEAL, WHICH HAS BEEN REPRODUCED AB OVE, IT IS THE CASE OF THE LD. D.R THAT LD. CIT(A) HAS WRONGLY DELETED THE ADD ITION. SO FAR AS IT RELATES TO CALCULATIONS IN THE AFOREMENTIONED CHART, IT WA S PLEADED BY LD. D.R THAT TO VERIFY THE CALCULATION THE MATTER MAY BE RESTORE D BACK TO THE FILE OF A.O. 6. AS AGAINST THAT REFERRING TO THE AFOREMENTIONED CHART IT IS THE CASE OF THE LD. AR THAT WITHOUT PREJUDICE TO THE OTHER SUB MISSIONS OF THE ASSESSEE, IF MARGIN TAKEN BY TPO IS APPLIED, EVEN THEN THE A SSESSEES CASE WILL FALL WITHIN THE SAFE HARBOUR OF +/- 5%. HE, THEREFORE , SUBMITTED THAT THE TPO HAS WRONGLY TAKEN INTO CONSIDERATION THE ENTIRE SA LE OF THE ASSESSEE, WHEREAS ACCORDING TO THE PROVISION ALP CAN BE APPLI ED ONLY TO INTERNATIONAL TRANSACTIONS OF THE ASSESSEE WITH ITS AE AND IF THI S FACT IS ACCEPTED THEN ACCORDING TO AFOREMENTIONED CHART, THERE BEING SAFE HARBOUR OF +/- 5% AVAILABLE TO THE ASSESSEE, NO ADJUSTMENT IS REQUIRE D TO BE MADE AND ON THIS GROUND THE ORDER OF THE LD. CIT(A) BE UPHELD. 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS IN THE LIGHT OF THE MATERIAL PLACED BEFORE US. SO FAR AS IT RELATES TO APPLICATION OF CUP METHOD, IT IS THE CASE OF LD. CIT(A) THAT ASSESSEE HAD FURN ISHED PROPER DETAILS TO SHOW COMPARABLE TRANSACTIONS OF NON-AE PARTIES WHICH MAT CH WITH THE TRANSACTION OF THE ASSESSEE WITH ITS AE. DURING TH E COURSE OF HEARING WE HAVE PERUSED THAT CHART WHICH IS REPRODUCED AT PAGE -4 OF THE ORDER OF LD. CIT(A), IT WAS OBSERVED THAT THE RATE OF DIAMONDS PER CARAT VARIES BETWEEN RS. 38,561/- TO RS. 98,499/-. THE LD. A.R WAS REQU IRED TO SUBMIT THE DETAILS REGARDING PARTICULAR QUANTITY OF THE DIAMON DS STATED THEREIN. IT WAS THE SUBMISSION OF LD. A.R THAT THE TRANSACTION COMP ARED BEING IN THE IMMEDIATE VICINITY OF THE TRANSACTION ENTERED INTO BY THE ASSESSEE WITH ITS AE IS SUFFICIENT TO PROVE THAT THE PRICE CHARGED BY IT S AE WAS COMPARABLE WITH ITA NO. 6399/MUM/2007(A.Y. 2004-05) 8 PRICE CHARGED BY NON-AES. HOWEVER, HE COULD NOT PR ODUCE DETAILS ABOUT THE QUALITY OF THE DIAMOND MENTIONED WITH REFERENCE TO INVOICES. THEREFORE, WE ARE OF THE OPINION THAT LD. CIT(A) HAS WRONGLY ACCE PTED THE CUP METHOD AND TPO WAS RIGHT IN OBSERVING INSUFFCIANT DETAILS WE RE FURNISHED TO PROVE THE JUSTIFICATION OF APPLICABILITY OF CUP METHOD. 8. NOW COMING TO THE TNMM METHOD WHICH EVEN WAS CON SIDERED BY THE ASSESSEE IN ITS TP REPORT, IT CAN BE MENTIONED TH AT IT IS THE MAIN CASE OF THE ASSESSEE THAT ACCORDING TO THE CALCULATIONS SUBMITT ED IN THE CHART FURNISHED BEFORE US THE MARGIN OF THE ASSESSEE BEING 0.74% AN D THE MARGIN APPLIED BY THE TPO BEING 5.13%, THE CASE OF ASSESSEE WILL FALL WITHIN SAFE HARBOUR OF +/- 5%. IT IS ALSO THE CONTENTION OF THE ASSESSEE THAT DETERMINATION OF ALP CAN ONLY BE IN RESPECT OF INTERNATIONAL TRANSACTIONS EN TERED INTO BY THE ASSESSEE WITH ITS AE AND IT CANNOT BE EXTENDED TO NON-AE TRA NSACTIONS. THIS ISSUE IS WELL ESTABLISHED THAT DETERMINATION OF ALP CAN BE M ADE ONLY WITH REGARD TO INTERNATIONAL TRANSACTIONS OF THE ASSESSEE WITH ITS AE AND IT CANNOT BE EXTENDED TO INTERNATIONAL TRANSACTION OF THE ASSE SSEE WITH ITS NON-AES. THEREFORE, WE HOLD THAT THE ALP CAN BE WORKED OUT ONLY WITH RESPECT TO INTERNATIONAL TRANSACTION OF THE ASSESSEE WITH ITS AE. IF IT IS SO, WE CONSIDER IT JUST AND PROPER TO RESTORE THIS ISSUE TO THE F ILE OF AO WITH A DIRECTION TO VERIFY THE AFOREMENTIONED CALCULATIONS SUBMITTED BY THE ASSESSEE AFTER GIVING THE ASSESSEE REASONABLE OPPORTUNITY OF HEARING AND IF THE AFOREMENTIONED CALCULATIONS ARE CORRECT THEN THE DIFFERENCE BEING WITHIN THE SAFE HARBOUR OF +/- 5%, NO ADDITION WITH REGARD TO ALP SHOULD BE MA DE. IT MAY BE MENTIONED HERE THAT ON THIS GROUND ALONE THE MATTER CAN BE D ECIDED, THEREFORE, WE DO NOT CONSIDER IT NECESSARY TO ADJUDICATE OTHER GROUN DS ON WHICH THE ASSESSEE IS ASSAILING THE TP ADJUSTMENT AS THOSE WILL BECOM E ACADEMIC ONLY. ITA NO. 6399/MUM/2007(A.Y. 2004-05) 9 9. IN VIEW OF THE ABOVE DISCUSSIONS, THE APPEAL OF THE REVENUE IS CONSIDERED TO BE ALLOWED FOR STATISTICAL PURPOSES I N THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON THE 3 RD DAY OF AUGUST, 2012 SD/- SD/- ( R.S.SYAL ) (I.P.BANSAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 03 AUGUST, 2012. COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CITY CONCERNED 4. THE CIT(A)- CONCERNED 5. THE D.RL BENCH. (TRUE COPY) BY ORDER ASST. REGISTRAR, I TAT, MUMBAI BENCHES MUMBAI. VM.